U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

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STRATEGIC ENFORCEMENT PLAN

LISTENING SESSION III:

SHAPING THE EEOC'S STRATEGIC

ENFORCEMENT PRIORITIES

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THURSDAY, SEPTEMBER 22, 2022

VIRTUAL HEARING

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PRESENT:

CHARLOTTE A. BURROWS Chair

JOCELYN SAMUELS Vice Chair

JANET DHILLON Commissioner

KEITH E. SONDERLING Commissioner

ANDREA R. LUCAS Commissioner

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

WITNESSES:

EMILY MARTIN, National Women's Law Center

DARIELY RODRIGUEZ, Lawyers' Committee for Civil Rights Under Law

DARRELL GAY, ArentFox Schiff LLP

JUDY CONTI, National Employment Law Project

EMILY DICKENS, Society for Human Resource Management (SHRM)

LINDA CORREIA, National Employment Lawyers  Association (NELA)

DAVID FORTNEY, Fortney & Scott

EVE HILL, Brown Goldstein & Levy

MANJUSHA KULKARNI, AAPI Equity Alliance

NICK REAVES, Becket Fund for Religious Liberty

CHRIS WILLIAMS, National Legal Advocacy Network

HOLLY BIGLOW, AARP

                C-O-N-T-E-N-T-S

Introduction and Welcome

Opening Remarks

Witness Panel 1.

Commissioner Questions

Witness Panel 2

Commissioner Questions

Witness Panel 3

Commissioner Questions

Conclusion/Thank You

             P-R-O-C-E-E-D-I-N-G-S

                                 10:00 a.m.

CHAIR BURROWS:  I think it's just about 10:00 o'clock, if not exactly.  Good morning, and welcome to today's public listening session of the U.S. Equal Employment Opportunity Commission. Good morning -- sorry.  Shaping the EEOC's strategic enforcement priorities.  The meeting will now come to order.  This meeting is being held in accordance with the requirements of the Sunshine Act, and is open to the public.

Real-time captioning, and ASL is available, and we would ask that you please visit our website, www.eeoc.gov for details on accessing this service.  I'd like to extend a very warm welcome to our invited panelists, and we are grateful for your willingness to join us today in person, and to share your insights, and your expertise.

Many thanks to our EEOC staff who work tirelessly over these past several weeks to prepare for today's listening session.  This listening session marks the very first time that we are here in our D.C. offices streaming both on the web, and in person with all of you.  Although we did do that hybrid kind of broadcast up in Buffalo, New York for our first listening session in the series on the strategic enforcement plan.

Preparation for this meeting has taken a great deal of effort by our staff, and I am extremely grateful for it.  As always, I also want to thank the vice chair, my fellow Commissioners, and their staffs for their support, and their contributions.  Finally, thank you to everyone who is joining us virtually from across the nation for this important dialogue.

Before we continue, I will briefly explain the procedures for today's listening session.  The listening session is being recorded, and a verbatim transcript will be made available after the proceedings.  The recording, and the transcript, as well as the list of witnesses will be posted on the EEOC's website following the listening session.

As the Presiding Officer, I am responsible for regulating the course of the meeting, and today's session will consist of three panels of witnesses.  For each panel I will introduce the witnesses who will each have five minutes for their opening remarks, followed by questions for members of the Commission.  We will take a ten minute break between the first, and second panels.

Break for lunch after the second panel, and then hear from our third, and final panel of witnesses.  While this listening session is open to the public, remarks, and questions will not be taken from the audience.  So, today's meeting, as I mentioned earlier, is the third, and final of our listening sessions to hear public input on our strategic enforcement plan, which will govern, and guide our work for the next coming years.  The first session took place in Buffalo, New York, and focused on racial, and economic justice in the work-place.  We heard from a variety of community members about the racial, and economic challenges that Buffalo has been facing, as well as members of the community from the civic, and business leaders, scholars, civil rights organizations, and we were honored to have two of the family members of victims of the racist attack that occurred in May of this year.

The second listening session focused on workers who are especially vulnerable to discrimination in the workplace.  Including immigrant, and migrant workers, transgender individuals, workers with limited proficiency in English, or literacy in English, and individuals with intellectual and developmental disabilities.

This session was virtual, including worker advocates, and others from Jackson, Mississippi, Washington State, Georgia, Los Angeles, and rural California.  Today's session focuses on all aspects of the Commission's work, and strategic enforcement plan.  We'll hear from civil rights, and worker's rights organizations, management employers, plaintiff employers, and advocacy organizations.

While we worked to include a diverse cross section of witnesses who represent perspectives, and expertise from a variety of backgrounds, we recognize of course that it is not possible to hear from everyone who needs to be heard in this process, and wants to be heard in this process.  And so we also are going to be welcoming stakeholders, and interested members of the public to provide written input on the strategic enforcement plan, and our priorities.

You can submit written input at sep2022@eeoc.gov, more information will be available on our website.  The Commission will consider the testimony we hear today, and at our two previous sessions, and we'll use that as well as written comments in refining the strategic enforcement plan.  We'll then post the plan on the website for the public viewing, and for additional comment if anyone wishes to do so.

And the final plan will be voted by the full Commission.  So, with that I'd like to invite my fellow Commissioners to provide opening remarks beginning with the vice chair.

VICE CHAIR SAMUELS:  Thank you so much Chair Burrows, I'm so delighted to be here today with my fellow Commissioners, with our Commission employees, with our esteemed witnesses, and with all of you who are tuning in from places around the country as we work together to identify EEOC's strategic priorities for the next five years.

Nearly ten years ago we issued our first strategic enforcement plan, or SEP covering the years 2013 to 2016.  Many of the organizations who will be represented here today provided critical input to that SEP to enable us to more strategically use our resources to target specific discrimination issues, and to focus, and coordinate our programs for long lasting input, and impact in reducing, deterring, and addressing work-place discrimination.

Our second SEP was adopted in 2016, and covered the last five years.  And we're here today to hear once again from a broad range of stakeholders as we develop our third SEP.  This is a vitally important effort.  We've all too frequently been reminded over the last several years about the challenges we face in making the promise of the civil rights laws a reality.

Whether it's the pandemic, the consistent reminders of persistent racial inequities, the persistence of sex-based wage gaps, or sexual harassment, the attacks on LGBTQI+ people, the backlash against AAPI communities in the wake of the pandemic, we have a tremendous amount to do today to ensure that together we maximize the impact of our work to address these challenges.

And ensure that the workplace of the 21st century reflects the promise of our decades old civil rights laws.  Excuse me, I've choked myself up.  Thank you so much.

CHAIR BURROWS:  Thank you, we'll now go to Commissioner Dhillon.

COMMISSIONER DHILLON:  Thank you, I'd also like to extend my welcome to our witnesses, and thank you all for agreeing to appear here today.  The EEOC is in the midst of drafting its next strategic enforcement plan.  It will serve as a blueprint for the agency's future efforts to prevent, and remedy discrimination in the workplace.

It is my sincere hope that the final plan will provide for robust training, and outreach to workers, as well as meaningful compliance assistance to employers, particularly small employers.  Unfortunately in the past, the strategic enforcement plan has been viewed as a framework for aggressive litigation efforts.

And while litigation is a tool in the agency's toolbox, I firmly believe that litigation should only be utilized as a last resort after efforts to consensually remediate, and resolve a dispute have failed, and in particular after the agency has satisfied its statutory obligation to engage in robust conciliation.

And of course any such litigation cannot be filed unless it has received a majority of approval by the Commissioners pursuant to Title VII.  It is critical that the agency obtain input on its proposed strategic enforcement plan from a wide range of stakeholders representing a diverse set of viewpoints.  These listening sessions are part of that effort, but not all interested stakeholders have been extended an invitation to appear at one of these listening sessions.

Indeed, distressingly, some stakeholders who wished to appear here were denied that opportunity.  Therefore, I believe it is essential that the draft strategic enforcement plan be published in the Federal Register for public comment so that all interested parties will have an opportunity to weigh in on these important issues, and I look forward to hearing from our witnesses here today.

CHAIR BURROWS:  Thank you very much, and now we'll hear from Commissioner Sonderling.

COMMISSIONER SONDERLING:  Thank you, and thank you for everyone who is here in person, and more importantly to our staff that worked hard.  For those of you on Zoom, you can't see how nice the room is setup, and what an easy process it has been for the public to come in.  First, I want to keep our colleagues, and everyone in Puerto Rico in our thoughts.

Just a few weeks ago I was there, and I visited with the governor who we discussed their unwavering support of the EEOC, and their local partners there relating to employment discrimination agencies.  So, we hope for a quick recovery after the aftermath of Hurricane Fiona. So, as we've heard, I think we're all glad to be here in public, it's been too long, and I'm really grateful for those of you who have come to our headquarters to attend this session in person, as well as those listening online.

Your presence demonstrates your incredible support of the EEOC as we formulate our strategic enforcement plan.  For those of you in the public that were not asked to testify, or selected to testify, I do hope there is a future avenue available for you to participate through formal public comment.  Although today's meeting is the last scheduled listening session for our forthcoming strategic enforcement plan, this should not be the last opportunity for the public to engage at large.

It should be just the next step before we begin the formal process of hearing from the rest of the country, as this plan will guide the agency in our efforts to prevent, and remedy unlawful employment discrimination, it will prioritize all of our nationwide enforcement goals, and compliance assistance.  It will have a tremendous impact on employees, and employers across the country.

The integrity of the agency depends on how we objectively investigate, and adjudicate our cases to advance our mission ultimately on behalf of the best interest of the public.  Therefore input from the entire public in an open process, and not just the testimony of highly prepared witnesses we will hear from today, and we heard from the last two sessions, it cannot be the end of this process, it must just be the start.

So, I therefore reiterate my deep concern about the effectiveness of creating an enforcement plan without everyone in the public being able to comment on it.  So, thank you to the witnesses for being here, and I look forward to your testimony.

CHAIR BURROWS:  Thank you, and now we'll go to Commissioner Lucas.

COMMISSIONER LUCAS:  Thank you Madam Chair.  Good morning, welcome to our witnesses, EEOC staff, and the public.  I started at the Commission almost two years ago, but this is my very first in person meeting in the Commission hearing room. I am delighted to be here, and I'm looking forward to hearing the testimony from the witnesses at today's meeting.

Of course oral testimony from invited witnesses at these three meetings on our future strategic enforcement priorities is only one step in the Commission's solicitation of input from the public.  Written input is also critical.  Before voting to approve a final new strategic enforcement plan, it is not only the Commission's duty, but our privilege to hear from a wide array of stakeholders with a diversity of viewpoints, both majority, and minority views.

Indeed, as Chair Burrows eloquently said before our meeting in Buffalo last month, wisdom exists in many communities outside of Washington.  For that very reason, I'm confident that each of my colleagues on the Commission is deeply committed, just as I am, to ensuring that we receive robust public comment, and input into the Commission's future enforcement priorities.

To better facilitate that shared goal, I now move that the Commission solicit public comments by publishing in the Federal Register the final draft fiscal year 2022-2026 strategic enforcement plan, and providing the public with opportunity to publicly comment on that draft plan.

COMMISSIONER DHILLON:  I second Commissioner Lucas's motion.

CHAIR BURROWS:  I believe that the purpose today is to talk, and hear from witnesses, as opposed to the procedure.  So, I'll take that under advisement.  I think that is in fact an interesting issue.  It is also a very expensive proposition to put something in the Federal Register, as opposed to on our website, which effectuates the same purpose, but I am open to that, and to discussion of that as budget planning.

But I think we should hear from the witnesses who have come here today to present their views, and I am sure that as a matter of comity we can work this out with respect to what the cost would be with publication in the Federal Register.

COMMISSIONER DHILLON:  Point of order Chair, are you ruling Commissioner Lucas's motion out of order?

CHAIR BURROWS:  What I'm doing is saying that I'll take it under advisement, and requesting that as a matter of comity, we proceed to hear from the witnesses who are here today, and that the question of whether, or not we will spend -- use our precious resources to pay to put this in the Federal Register, as opposed to making it available on the public website, which is what we have done in the past, is a more prudent position.

But it's something again, I am open to, and interested in working out.  I don't think it's useful to debate it at this point.

COMMISSIONER DHILLON:  There is a motion pending on the floor, and I believe as a point of order, the next step would be for Commissioner Lucas to speak in favor of her motion, and then for the other Commissioners to offer their comments, followed by a vote.

CHAIR BURROWS:  I think that's the Robert rules of order procedure, I agree with that.  I was hoping we could get to the purpose of today's meeting, as noticed in the Sunshine Act, but I am more than happy to ask for the yeas, and nays if there's not bipartisan agreement to simply go forward with the strategic enforcement plan as scheduled.

COMMISSIONER DHILLON:  So, point of order is now --

CHAIR BURROWS:  Are you requesting a vote?

COMMISSIONER DHILLON:  I'm asking that we follow the appropriate procedure, and I believe the first step would be Commissioner Lucas would speak in favor of her motion, and then the other Commissioners would have an opportunity to speak either for, or against Commissioner Lucas's motion, followed by a vote of the Commission.

CHAIR BURROWS:  I ask that we proceed to the yeas, and nays if that is acceptable to the Commission, so that we can have the opportunity to hear from those who have traveled quite some distance to be here today to hear from the Commission.  And if the purpose is to have a vote, I am interested in doing that.

If there's not bipartisan agreement to simply proceed, then I think rather than delay, we should have a vote, and get to the purpose of the meeting.

COMMISSIONER DHILLON:  Point of order, the Commissioners are entitled under Robert's rules to speak to the motion, I think it could be accomplished briefly, and I suggest that we move forward briefly so that we can get to our witnesses by allowing Commissioner Lucas to speak in favor of her motion.

CHAIR BURROWS:  Commissioner Lucas, would you like to speak to the motion, or are you willing to go to a vote?

COMMISSIONER LUCAS:  I would like to speak to the motion.

CHAIR BURROWS:  All right, you have the floor.

COMMISSIONER LUCAS:  Thank you Madam Chair.  To date, I am unaware of any written comments that we've received through the strategic enforcement plan email inbox.  And I am also unaware of any easy accessible method for the public to locate that.  While we've mentioned it in our listening sessions, that's not necessarily in any easily located method on our email inbox, and I am confident that the whole Commission's end goal is to ensure that we have robust public input.

In 2012,  Jackie Berrien, then Chair Berrien, made the draft strategic enforcement plan available to the public in order to receive public comment, and received over 100 comments.  So, our goal should be to mirror at least that amount.  And thus far, I have not seen that, so I am concerned that we are not receiving a full amount of wide diversity of viewpoints, and full access to the public.

And I believe that publishing in the Federal Register, which is consistent with many other agencies published sharing of their strategic plan in the Federal Register would best facilitate that shared goal of receiving the most public input.  I also think that publishing it in the Federal Register will best allow the public to see other members of the public's comments, which will then spur further comment.

Again, so I do think this would be the most robust method of ensuring a centralized location for the public to comment, an easily accessible one, one that others should be able to view others' comments, and I think that that would best facilitate our goal.  We publish a variety of things in the Federal Register, so I am unconvinced that costs should be simply prohibitive.

So, that is my position, and I am interested in hearing my fellow Commissioner's views on the motion as well.

CHAIR BURROWS:  Thank you.  So, if there is any other Commissioner that would like to speak to this motion, I would go in order of seniority, but I will put that question.  I think it would be most expeditious for us to go forward, but happy to hear other views on this procedural issue.

And I think that we have been using two minute rounds, so I'm willing to hear -- and I know it's about what the Commissioner did, so this was unexpected, and unplanned, but happy to have anyone be heard if they would like to.

VICE CHAIR SAMUELS:  If I can just speak briefly to this.  I think this motion is at best premature.  I think all of us on this dais share  an interest in encouraging the most robust public comment.  I see no evidence that posting on our website, and publicizing the availability of an email, or website inbox through which people can solicit, and put their comments does not adequately serve the purpose of encouraging public input.

The Federal Register is a very inside the beltway tool which, I think lots of lawyers are aware of, not clear to me that members of the public are.  But a minimum, I think it is premature to have a vote on this motion until we know more about the costs of publicizing in the Federal Register.  Until we consider whether there are ways that we can get the word out more broadly that we are soliciting public comment.

And until we as a Commission have the opportunity to consider the equities, and not take the time of our witnesses here today.

CHAIR BURROWS:  So, I appreciate that, and I would say before we go further, that with respect to the expense of this, we can figure that out.  Why don't we just get to this?  I think that I'm happy to just simply agree to have something published in the Federal Register at the same time as the website.  I will note that we have never published this in the Federal Register.

In part because what we've found is that we have been able to get robust comments the first time we did a strategic enforcement plan back in 2012, it was published on the website.  The second time it was not published at all.  But nonetheless, we were able to do it successfully. That said, there is never a downside to transparency, it is an additional cost for the agency, but I am happy to have it go on both the website, and collect -- use reg.gov to do that.

And we can proceed, I think, with that agreement hopefully.  And simply hear finally from our witnesses today.

COMMISSIONER DHILLON:  Point of order, I believe that Commissioner Lucas's motion requested that both it be published, and it be published for public comment.  So, I think that the most logical thing to do is to allow the remaining Commissioners, including myself, and Commissioner Sonderling if he has anything to offer, to offer brief remarks, and then to proceed to the vote.  There is a motion pending on the floor.

CHAIR BURROWS:  Happy to have Commissioner Sonderling be heard.

COMMISSIONER DHILLON:  Point of order, I believe you said we were going in order of seniority.

CHAIR BURROWS:  Would you like to be heard on that as well?  Go ahead.

COMMISSIONER DHILLON:  Yes, thank you.

CHAIR BURROWS:  Sure.

COMMISSIONER DHILLON:  Two points to make.  First, in terms of the cost, I am pleased that the Chair is sensitive to the overall costs of running the agency.  This is an agency that has a budget that is well over 300 million dollars a year.  My understanding that the cost to publish in the Federal Register is approximately 522 dollars per page.  So, I don't think that this is the type of cost that would prevent the agency from fulfilling its mission.

With respect to the Federal Register, the reason that it's important to publish it in the Federal Register, and to have comments published in the Federal Register is that so all of the public can both read the report free of charge, and also can read comments that are submitted to the agency.  And I think that that helps facilitate knowledge of the Commission's potential actions.

I think to Commissioner Lucas's point it potentially causes other groups to submit their own public comments, and I think as a result, the end product will be better informed with more robust input.  So, I support Commissioner Lucas's motion.

CHAIR BURROWS:  Thank you.  We can now hear from Commissioner Sonderling.

COMMISSIONER SONDERLING:  Thank you.  As I've said in my last two opening statements, I've discussed this matter more specifically.  In the last listening session I gave an example about what we did when I was at the Department of Labor regarding getting comments in anticipation of a rule, and for ruling.  This is really not controversial in my opinion, this will just bolster the plan.

People are familiar with how to use the Federal Register.  A lot of agencies, especially Department of Labor receive hundreds of thousands of comments.  What it does is it requires the agency to review all those comments to get input from anyone in the world who wants to submit a comment, and to deal with them.

And to address all of them, to not ignore them, and in our final plan if we have certain elements that are in the final strategic plan that came from comments, or that were in comments, and we ignored, or not necessarily just ignored, but we actually dove into to determine whether, or not that should be in the strategic plan, at least the public knows.

The other part too is with an email box, just emailing to us here, the public doesn't get the benefit of seeing the comments come in real time, and being able to also submit comments regarding large swathes of comments coming in.  And I know half the people in this room, and most of the people testifying today, it's common practice to submit comments to agencies for rules, or other kind of plans.

And whether, or not we've done it in the past, this is how we should do it moving forward.  So, I do support the motion.

CHAIR BURROWS:  All right, with that, I think that we can ask for the yeas, nays.  All in favor -- well, we'll go seriatim, the Vice Chair, how do you vote?

VICE CHAIR SAMUELS:  I continue to believe that this motion is premature, but I have no objection, so I vote in favor.

CHAIR BURROWS:  Commissioner Dhillon?

COMMISSIONER DHILLON:  I vote in favor.

CHAIR BURROWS:  Commissioner Sonderling?

COMMISSIONER SONDERLING:  I vote in favor.

CHAIR BURROWS:  Commissioner Lucas?

COMMISSIONER LUCAS:  I vote in favor.

CHAIR BURROWS:  And I'll vote in favor, so the motion passes.  I would like to have the witnesses come forward, and I will introduce you now, you've been very patient, I appreciate that. It's my pleasure to introduce our distinguished speakers today.  First, and I'll be introducing them in the order that they will present.  I'll begin with Emily Martin, who is vice president for education and workplace justice at the National Women's Law Center.

In this role she leads the National Women's Law Center's advocacy, policy, and education efforts to ensure fair treatment, and equal opportunity for women, and girls on the obstacles of confronting women, and girls of color, and women in low wage jobs.  Next, we will hear from Dariely Rodriguez, who is the Deputy Chief Counsel for the Lawyers' Committee for Civil Rights Under Law.

She previously served as the Director of the organization's economic justice project, which focuses on combating discrimination in employment, healthcare, and economic opportunities on behalf of communities of color. And most recently she served as chief of staff in the Office of Federal Contract Compliance Programs at the Department of Labor.

She knows our work well, welcome.  Darrell Gay is a partner at Arent Fox Schiff LLP, where he advises clients on compliance with labor, and employment laws, and the institution of management best practices.  On behalf of management Mr. Gay handles employee related issues, discrimination claims, diversity issues, and workplace training among many others.  And conducts internal investigations.

Prior to joining Arent Fox, Mr. Gay was a partner at two other international law firms, and served as a Commissioner with the New York State Civil Service Commission, welcome.  And Judy Conti, the Director of Government Affairs at the National Employment Law Project, which advocates for just, and inclusive economy where all workers have strong legal protections, and thrive in good jobs.

Prior to joining NELP, she was the co-founder, and executive director of the D.C. Employment Justice Center, a legal service provider devoted to workplace justice in the D.C. metro area.  Ms. Conti also serves as co-chair of the employment task force for the Leadership Conference on Civil and Human Rights. So, welcome, and thank you again to our witnesses for being here today.

And as a reminder, you each have five minutes for your opening remarks beginning with Emily Martin, thank you.

MS. MARTIN:  Good morning, thank you for having me here.  I'm glad to be here on behalf of the National Women's Law Center.  For 50 years, the law center has fought for gender justice in the courts, in public policy, and in our society working across the issues that are central to the lives of women, and girls.  And I appreciate the opportunity to speak with you about the Commission's next strategic plan.

The strategic enforcement plan is an important tool to identify priorities, and coordinate enforcement activities across the agency, and it should continue to prioritize matters where the Commission can add important expertise on developing legal questions, achieve systemic relief, or address matters where private enforcement often falls short.

The next plan will come at a critical moment, in the wake of a pandemic that ended the work lives of women as care givers, and in the face of ever more virulent attacks on efforts to forward diversity, inclusion, and basic rights of bodily autonomy, and dignity.  In order to meet this moment, the National Women's Law Center urges the Commission to ensure the next strategic enforcement plan includes several key priorities.

First since 2012, the Commission has recognized pregnancy accommodations under the ADAAA, and the Pregnancy Discrimination Act as an important developing issue.  While in 2015, the Supreme Court set out a legal standard for Title VII pregnancy accommodation cases, lower courts continue to misapply that holding.  In particular, many courts have demanded inappropriately exact comparators in pregnancy accommodation cases.

While others have sought to avoid the Supreme Court's holding that an employer can't defeat an accommodation claim by arguing it's more expensive, or less convenient to accommodate pregnant women as well.  The Commission's continued engagement on these issues is necessary to ensure that standard is not further distorted. Second, as many states move to criminalize abortion, it's important that the Commission prioritize enforcement of the Pregnancy Discrimination Act's protections for employers who are seeking, or considering abortion.

As well as its requirement that abortion related leave be provided on the same terms as leave for other medical needs.  This federal civil rights protection is unchanged, and is more important than ever.  Third, the Commission must prioritize sex based care giver discrimination.  Providing child care, elder care, or care for disabled family members is part of daily reality for millions of workers, most of whom are women.

The pandemic underscored this truth, and its gendered impact.  Care givers face discrimination in the workplace stemming in part from gender stereotypes regarding care giving.  The Commission should seek to further clarify Title VII's protections against sex based care giver discrimination, including for additional updates of the 2008 care giver discrimination guidance to incorporate key legal decisions, and theories.

Including the Supreme Court's reaffirmation of a sex plus theory in Bostock versus Clayton County.  Fourth, we strongly urge that the Commission continue to prioritize equal pay.  A culture of secrecy around pay makes it difficult for many to know they've experienced pay discrimination, which makes Commission systemic enforcement efforts especially necessary.

We urge the Commission to make use of the previously collected EEO-1 compensation data to identify charges that merit closer review for systemic discrimination.  And we also urge the Commission to prioritize enforcement in matters where employers improperly rely on salary history, or other non-job related factors to defend unequal pay for equal work.

Fifth, the five years since Me Too went viral have demonstrated beyond argument that harassment remains endemic in U.S. workplaces.  We urge the Commission to continue to address harassment as a strategic enforcement priority.  This should include prioritizing low paid workers, who are much less able to enforce their rights in the absence of agency engagement.

It should also prioritize protections against harassment based on sexual orientation, or transgender status as part of a range of Bostock implementation, and outreach efforts.  Which is especially critical given renewed attacks against transgender, and gay people in this country.  The Commission should focus on intersexual harassment that targets workers based on multiple protected characteristics.

And it should advance culturally competent interpretations of the severe, or pervasive standard through trainings, and guidance that recognize the severity of, for instance persistent, and purposeful misgendering. And finally the Commission should address the abuse of non-disclosure agreements to block victims of harassment from coming forward, sharing their stories, and asserting their rights.

Sixth, and last, we appreciate the Commission's interest in the impact of workplace technologies, and urge the next SEP to include a focus on the ways in which relying on algorithmic technology, and artificial intelligence in hiring can replicate, and systematize harmful, and stereotype decision making, while also making such discrimination more difficult to challenge because of the black box nature of those decision making processes.

Thank you for allowing me to be part of this conversation today, and I look forward to your questions.

CHAIR BURROWS:  Thank you, we'll go next to Ms. Rodriguez.

MS. RODRIGUEZ:  Good morning Chair Burrows, Vice Chair Samuels, and Commissioners.  On behalf of the Lawyers' Committee for Civil Rights Under Law, thank you for the opportunity to participate in this important hearing about the EEOC's next strategic enforcement plan, or SEP.  The Lawyer's Committee is a national civil rights organization created at the request of President John F. Kennedy to mobilize the private bar to confront issues of racial discrimination.

Today the Lawyer's Committee is at the forefront of the fight for racial justice.  As you work to identify your substantive enforcement priorities, and how to best allocate limited resources, I want to highlight the EEOC's powerful role in reducing discrimination impacting black workers, and workers of color, especially as our economy recovers from this pandemic.

Specifically, we ask the EEOC to prioritize tackling systemic race-based discrimination, eradicating race based workplace harassment, and violence, and strengthening its outreach to black workers, and workers of color in underserved communities.  First, we urge the EEOC to continue prioritizing systemic enforcement in its next SEP, including the investigation of systemic race discrimination.

We commend the EEOC for reaffirming its commitment to a nationwide strategic, and coordinated systemic enforcement program as one of its top priorities in its last SEP.  Black, and other workers of color continue to face systemic barriers in obtaining, and maintaining employment.

Research continues to show that as a result of persistent labor market discrimination, black workers have access to fewer, and less advantageous employment opportunities than their white counterparts.  These systemic barriers have been exacerbated by the COVID pandemic.  The EEOC must ensure that its systemic enforcement strategies are designed to afford meaningful employment opportunities to black workers and workers of color.

In particular, we ask the EEOC to allocate its resources on cases challenging patterns, or practices of intentional race-based discrimination, and disparate impact cases challenging neutral policies that have an adverse impact on black workers, and other workers of color, particularly in recruitment, and hiring such as unjustified degree requirements, biased algorithmic screens, and criminal history bans.

Allocating resources to remedy systemic racial barriers in hiring will complement the important work that the Commission is leading with the DOLOFCCP through its hire initiative.  Second, we urge the EEOC to prioritize the strong enforcement of race-based workplace harassment with appropriate monetary relief, and effective injunctive relief that can improve workplace cultures.

We commend the EEOC for holding its first SEP listening session in Buffalo, New York focused on racial, and economic justice months after the deadly racist attack.  Reported hate crimes are at their highest levels in over a decade, with the overwhelming majority of hate crimes being racially motivated, and with black people being the most frequently targeted.

Hate in the workplace must be eradicated too.  However, enforcement alone is not sufficient.  We ask the EEOC to research the different ways in which black workers, and workers of color are experiencing race-based harassment, and violence in different types of work-places, including in virtual workplaces, as more of us are working in hybrid environments, and construction sites for example.

And to develop new training, and outreach programs, as well as resource materials for workers, and employers that promote a safe, and inclusive environment.  Finally, we ask the EEOC, continue to identify ways to strengthen its outreach to marginalized low paid workers, disproportionately people of color, who face overwhelming barriers that prevent them from enforcing their rights, and accessing relief for workplace discrimination.

Representatives from various legal services, and advocacy organizations that serve hard to reach populations have noted that better language capabilities at intake, and trauma informed interviewing tactics, and techniques would greatly benefit their client's ability to navigate the EEOC charge filing process.  Thank you again for giving me the opportunity to address these issues.

CHAIR BURROWS:  Thank you, we'll go now to Mr. Gay.

MR. GAY:  Thank you Commissioners, I really appreciate this opportunity to present to you.  I want to commend the Commission, because I did review the list of the people presenting, and I recognize that I'm one of only a couple who represent the management side of the bar.  And I really commend you because it's important for the EEOC to hear not just from the plaintiff, and individuals who represent individual perspectives, but the company perspective as well.

And I stand here today recognizing I'm not appearing just as Darrell Gay the individual, or Darrell Gay on behalf of Arent Fox, I reached out to many of my peers on the management side, both in house, and outside, members of the College of Labor Lawyers, members of other groups I belong to, and wanted to inquire from them what their perspective was, including many company representatives.

What do you want me to tell the EEOC, what do you want them to hear regarding the enforcement plan?  And I want to point out to the Commission that I am hearing a lot about the litigation, and litigation is a very important component.  There are still many employers today who do need to be reined in, but a good majority of employers today want to have an equitable, good workplace.

If we review the current status of work environments today, it is hard for companies to find people, and given that they need to have a good workplace, and toward that end, I think it's important that we not only focus on litigation, but education, and guidance as well. And to that end, I have some recommendations towards that idea.

I encourage the Commission to work with the management bar to help develop guidance for employers to understand how to comply with a lot of the things that are developing relative to the future of work.  The workplace is changing, it is no longer what it was before the pandemic, and it's going to be consistently evolving.  There are various topics.

I know the Commission has already developed an initiative on AI, and I commend that, but I would encourage you to not just do that internally, but reach out to members of the management bar, because it's important that you hear from those of us who represent management, because we want to become partners with you guys. And if we can work with you guys towards developing guidance that we can sell to our clients, we can have better workplaces, and eliminate the needs for problems of employees in the workplace.

I would also say we need to extend beyond AI.  Many employees today as a result of the pandemic are using electronic monitoring devices to help monitor, and control, and judge employees' performance away from the workplace. Guidance regarding that will be very helpful for us to be able to give clients to understand what they need to do, and how to do it.

Remote work itself is a whole brand new area, and you need to understand what the rule is going to be, there's still going to be racial discrimination in remote work environments.  Let's develop guidance, help us avoid having clients get in that kind of problem.  Another area that's important is the Metaverse, it might not be here yet, but it's coming like a freight train down the road.

And given that, there's going to be employment issues regarding that, and we should be developing guidance on that issue.  Pay equity as well, there's going to be examples in the workplace right now, and the difficulty people have getting employees, there's going to be issues with pay equity problems caused by that.  So, guidance to address those concerns will be real important.

I'd also suggest that one thing we did in New York back in the days when Spencer Lewis was the district director of New York was we had a meeting between myself, and one of our management bar, and his investigators in the office.  I would encourage you look at every region to be able to be responsible, to meet with the management bar.

Because I think too often there's a misunderstanding of why company's management takes a position in responding to investigations. We can break down some barriers so that we better understand each other.  So, I think that would be very helpful, and I will tell you that the College of Labor Lawyers has many people across the country, I'm quite sure we'd be willing to reach out, and help you guys do that.

I would also suggest that the EEOC look to develop a coordination with the other FEP agencies in the country.  Companies are going crazy, every single city, and state has a different perspective on EEO law.  We need the EEOC as a national body enforcing labor employment law to be able to bring the guys together, and kind of create some uniformity.

It is impossible to give clients guidance if every day some new city, or new state is developing some new way of doing it.  It just drives everyone crazy, and creates inconsistencies, and disparity on how people operate, and we want to avoid that.  I also want to bring to the Commission some suggestions I had from some of the people who I talked to.

There are some things they're concerned about how you guys operate that creates problems. One is there's a lot of people requesting the EEOC develop some kind of process by which companies can provide you the name, or individual who charges should be filed, or sent to.  Too often those charges end up on the desks of a security guard, or a secretary.

And sit there for weeks, and no one can actually conduct an investigation, because they don't know it's even there.  So, if we could have some kind of system put in place where companies could register here's who you're sending to would be helpful.  Another problem is too often, particularly national companies, the charges are sent to the region where the company's headquarters are.

Versus to where the people working in the documents, and where the information is.  The charge should be prosecuted in the region where the person works at, and the offices where they work at, so they can properly have the information there, the people there, and we avoid expense, and burdens.  And there's a lot of complaints from people that the requests for information that's being filed by the board is a little too broad.

Again, that can be accomplished by putting together the management bar, and developing some protocols on how to develop the RFIs.  With that said, I want to thank the Commission for my opportunity to be able to present to you, and glad to work with you guys any way I can.  Thank you.

CHAIR BURROWS:  Thank you, and we go now to Judy Conti.

MS. CONTI:  Chair Burrows, and honorable Commissioners, thank you so much for holding this listening session, and allowing me to speak today on behalf of NELP, and the Leadership Conference on Civil Human Rights.  Chair Burrows beautifully stated NELP's mission, and the Leadership Conference is a coalition of more than 230 national organizations that work to promote, and protect the rights of all persons in the United States.

I'm going to raise a number of issues at a 5000 foot level very quickly.  In recent years our country has steadily been moving towards the consensus that the criminal legal system operates in a systemically racist fashion. As the EEOC has long recognized, employer hiring policies, and practices that exclude people with records, or push them into low paying, dangerous, and unstable jobs disproportionately impact black, and Latinxworkers, and therefore violate Title VII.

We ask the EEOC to continue to train its investigators in the 2012 guidance on the use of arrest and conviction records so they know how to spot all potential violations, not just refusals to hire.  For example, we have heard how some employers hold a record over an employee's head as a reason that they should accept substandard, or unsafe working conditions.

It is also common for people with records to be hired via temp, or staffing firms, but the placement employer will refuse to convert the worker to a permanent employee because of the record, despite the fact that they have been satisfactorily performing the job, often for quite a long time.

Next, we commend the EEOC for the recent guidance on the use of software algorithms, and AI in employment decisions vis-a-vis the ADA, and urge the agency to issue similar guidance for the other civil rights laws that it enforces to help ensure that employers do not use surveillance technologies in a discriminatory fashion.

Checking up on certain groups of workers more than others, or collecting reams of data about them that the workers themselves will never see to justify discriminatory employment decisions.  We have particular concerns about automated hiring tools, which are increasingly common, but the use of them is impossible to quantify accurately due to a lack of transparency by vendors, and employers who use them.

These tools are often programmed, and trained based on past hiring practices, and thus they can replicate patterns of illegal bias with maximum efficiency.  They search for indicators that supposedly correlate to job performance, but these indicators may well be built upon preconceived notions that embody implicit biases at their core, and could filter out qualified candidates who don't fit a certain mold.

We urge the EEOC to build upon its existing work in this space to increase transparency, protect job seekers from discrimination, and as my colleague says, to give employers the guidance that they need to also appropriately move in this space.  Moving onto temp workers.

Given the high percentage of black, and Latinx people who are hired as temps, we believe the EEOC should end the administrative exemption that allows temp, and staffing agencies to avoid reporting demographics of their temp employees on the annual EEO1 forms.  We also urge the EEOC to use the joint employer doctrine when appropriate to investigate both temp agencies, and client companies when workers are victims of discrimination.

Next is the issue of misclassifying employees as independent contractors, which is a strikingly racialized practice occurring in low wage labor intensive occupations, in which people of color are over represented, including janitorial services, home care, trucking, transportation, and hospitality.

These workers are robbed of their rights under the civil rights laws of this country, and we ask the EEOC to engage in targeted enforcement in industries where misclassification is wide spread, putting those industries on notice that this practice will no longer be tolerated.

We also urge the EEOC to include digital platform companies in this targeted enforcement.  Many, not all, but many of these app-based workers are employees misclassified as independent contractor.  And we believe there needs to be more scrutiny of the algorithms, and procedures used for hiring, and deactivating workers, and assigning work.

As a final matter, we urge the EEOC to do comprehensive outreach about LGBTQ+ worker's rights particularly in the states that don't have their own protections against discrimination based on sexual orientation, or gender identity, and expression.  It is clear to advocates on the ground that there are large swathes of employers, and workers around the country who are unaware that LGBTQ workers have rights under Title VII.

Thank you again for the opportunity to speak today, and I welcome any questions you have today, or any discussions we can have about these issues in the future.

CHAIR BURROWS:  Thank you Ms. Conti, and to all of the panelists.  And we'll now proceed with questions from members of the Commission.  Each Commissioner will have a total of eight minutes for questioning, beginning with the vice chair.

VICE CHAIR SAMUELS:  Well thank you so much Chair Burrows, and thank you to all our witnesses for these invaluable insights for all of the work that you do to promote the goals I know we all share of creating safe, inclusive, non-discriminatory work-places.  I have more questions than I'll be able to get to today, but let me start with one from Ms. Martin.

I know that pay discrimination has long been a commitment of the National Women's Law Center, and it's a priority that you recommend we focus on.  We find that employers are doing a number of self-audits of pay discrimination, or the possibility of pay discrimination in their work forces.  Do you think that those are adequate to reveal the existence of disparities that might be indicative of discrimination?

And if not, why not, and what more should the EEOC be doing to ferret out disparities that bear further investigation?

MS. MARTIN:  Well, I think self-audits are very important.  Of course there's a wide range of self-audits, and some are better than others at identifying problems, rather than providing a way to rationalize disparities.  So, I do think that it is a marker of real progress that more, and more employers are identifying the need to affirmatively review their pay practices for race, and gender equity.

And also I think that any sort of self-policing, self-analysis will ultimately fall short, and that's exactly why the National Women's Law Center has, for many, many years been strong advocates for the importance of pay data collection by the EEOC.  Both because that is a spur to self-analysis, including by employers who aren't currently doing it.

When you're sharing that data with an enforcement agency, you have a particular incentive to make sure that you are checking to see whether you have problems in your own house. But also because as I mentioned in my testimony, pay discrimination is very difficult to identify, even when you are experiencing it.  And so having that greater transparency into pay practices is, I think, a really critical tool for an enforcement agency in order to make the promises of our pay discrimination laws real.

I think there's a longer conversation that is probably not for today about the best ways to collect that data, but I think it is absolutely critical in order to ensure that there is ongoing meaningful enforcement of the Equal Pay Act, and Title VII protection's against pay discrimination.

VICE CHAIR SAMUELS:  Thank you, that's very helpful.  Let me turn to Ms. Conti.  You've noted, and this is interesting to me that you think that misclassification can have racially disproportionate impact, which might give the EEOC some tools to be able to look at it with the legal authorities that we have.  Can you say more about what industries you think particularly bear scrutiny for misclassification?

And more broadly, whether there are other ways that we, using the anti-discrimination laws can get at the fact that the 21st century workplace is filled with gig workers, and independent contractors in ways that just weren't envisioned when the civil rights laws were passed?

MS. CONTI:  I really appreciate the question Vice Chair, thank you.  We see in hospitality, in janitorial services, transportation, healthcare services, so many industries particularly where contracting out is a common practice, that there is a very -- that the practice of misclassifying workers as independent contractors is far more frequent than it is in other industries where they still hold a little bit closer to the traditional view of employer, employee if you will.

And I won't say this is an absolute general rule, but certainly there are many very legitimate independent contractors running their own business, providing their own services.  Generally speaking, again, there are exceptions, but the lower the wage the worker is, the less likely it is a genuine independent contractor relationship.

One that a worker has decided on their own to start their own business, to solicit their own clients, is doing work really under their own control as opposed to higher paid workers.  And we know that in lower paid occupations, there is a higher concentration of workers of color, of women, of workers with disabilities, and LGBTQ workers as well, because of occupational segregation.

All of the ways that our system beginning in our schools in some ways, continuing through work force development programs, and just existing out in the ether, because of implicit biases that we all hold, and don't realize that we have, these are workers who are often driven into these lower wage jobs, where they have less power to negotiate for themselves.

Where they are put into conditions that they can't really object to, including a flawed notion that they're independent contractors, when in fact they are employees.  We could talk about this for days on end.  I do believe there are remedies under Title VII, it certainly begins with acknowledging the employment relationship where it exists, and using the appropriate test to determine when someone is an employee, and an independent contractor.

And I think too often, and I say this among the private bar as well, and with no shade meant to the private bar, but it is a fact intensive inquiry, and it takes a while.  And I think that often people have a tendency to skim over that, and just sort of accept the designation as it is given.  So, I think especially in terms of the targeted enforcement that this agency can be doing.

Looking into industries where you know that there is a frequency of subcontracting, and looking in places where we know there could be a lot of misclassification particularly of workers in protected classes is a good use of the scarce resources that I know you have.

VICE CHAIR SAMUELS:  Thank you, those are very helpful suggestions.  My next question is going to take far longer than the minute that I have left, and I really look forward to continuing the dialogue, but let me turn to Mr. Gay, and say first of all, thank you for all of the work you've done over your career to promote diversity, and inclusion.

I know you testified in 2007 before this Commission talking about the dearth of women, and people of color in leadership positions.  This is obviously still a problem, how can the EEOC best add value to those efforts?

MR. GAY:  When you say leadership positions in companies, law firms, businesses, there's no question, there is still issues there. I think that on the degree that you have states now requiring boards to include people of color, and women in those boards, those are important things.  Looking in the selection process, some of this is business related.

But obviously to the degree, again, guidance.  Bringing to attention, sitting down, and discussing, and working out protocols that boards, and senior C-suite levels can consider in how they do the evaluation could be very, very helpful to that end.  Just the fact that the issue is put on the table makes it important to address.

VICE CHAIR SAMUELS:  Well, you managed to skate in under my wire, so thank you.  And I'm sorry I don't have time to ask Ms. Rodriguez a question, but I do look forward to continuing this conversation, thank you to all of you.

CHAIR BURROWS:  Excellent.  And now we go to Commissioner Dhillon, you're recognized for eight minutes.

COMMISSIONER DHILLON:  Thank you.  Mr. Gay, welcome back, thank you for appearing here again today.  I was reviewing your prior testimony before the Commission, and was struck by comments at the EEOC's meeting in July of 2015 that you made.  At that point you said, you spoke of the importance of the EEOC being viewed as a neutral as it applies to employees, and employers.

I'm wondering if you could expand on that, and then also talk about how do you think we're doing in terms of being perceived to both employees, and employers as a neutral?

MR. GAY:  It is my perspective that any government organization, I used to be an attorney with NLRB, and I think it's very important that those organizations be neutral.  If you're in law enforcement, you're not fully representing any particular party.  I think in the last few years, due to partisanship activities, there has been too much of a tendency of trying to make them partisan, and make them one side, or the other.

That is not productive on either side of the coin.  As a defense lawyer, as a company representing companies, what we try to do as lawyers representing companies is we try to give our clients guidance, and direction on how to properly run their workplace.  And to the degree we can work with the EEOC towards that end, it's helpful.

If I get an investigator, or an office that it gets out of control, it's hard for me to convince my client that you are a neutral party. Now, I can honestly say with EEOC particularly, I am pleased.  I have a good working relationship with the EEOC, I find I'm cooperative, some of my peers sometimes have felt that the requests for information are too broad.

There are some technical problems, as I mentioned, regarding where the charges are filed, or how the charges are delivered that create problems.  But I haven't heard any perspective that there's a feeling that this particular agency is out of control, and too partisan.  So, that much I commend you guys on very well.

But again, I think to the degree that -- I'm listening to my fellow peers speak, there's a lot of perspective about enforcement, need more litigation, need to be more aggressive. There's no question that there are lot of employers out there engaging in misconduct, but that's not true of the majority of companies.  Most companies want to comply.

They don't know how.  Particularly small employers.  I've had smaller clients of mine say well how am I supposed to know this?  And unless they call a lawyer, or have a lawyer to call, and sometimes they don't have that until they get in trouble, and they go I didn't even know this was even illegal.  So, sometimes when I get a charge, my first question is how do we help make sure this client is not in trouble?

Let's work with you to get this compliance in place, and that's true of several of my peers.  The management bar, the good guys who really want to get this done, there's some fly by nights that are not good lawyers, but there are many, most of us who do want to help not only the agency, most importantly the employees have a good working place.

As I pointed out during my testimony, we're in a very different working environment.  Unlike the work environment most of us grew up with where the employer held the control on the ability to hire people, we're in a different world.  We're in a world where the employees have the control about whether, or not who they want to work for.

And they have more demands about the work environment they want to work in.  And companies have to recognize they have to do that, and they have to comply with that.  A few are being hard headed, but most are being understanding that they want a work environment they can get the brightest, and best talent.  And so therefore again, I think if the EEOC could move forward more to working with the management bar.

Or members of the management bar to help us develop guidance, it would help us being able to convey to the clients here's how to do this, here's how to stay out of trouble.  And particularly for smaller companies that lack the ability, their general counsel is not a lawyer living this, to get guidance on how to basically help their client do the job correctly.

COMMISSIONER DHILLON:  That's very helpful.  And I think part of the challenge that I have felt in this role on the Commission is that some of the laws that we enforce, in fact all of the laws that we enforce actually are pretty complex, and they're getting more complex.  And then when you layer it in, as you pointed out, various state requirements, and increasingly there's more, and more of those.

And now locality requirements, large cities, even some not so large cities now who are also getting into this field.  So, as we think about in the context of strategic enforcement plan, how do we prioritize, how do we direct the agency, and tell the public this is how we're going to prioritize?  And particularly around training, and outreach.

Where are the areas you think are the biggest pain points that both employers, and employees have the hardest time kind of understanding what the legal requirement is?  And where the EEOC could make an impact.  Because I have my views, but I'm interested in yours, and what you experience in your practice.

MR. GAY:  Well, I'll give you an example.  During the pandemic, the issue of religious accommodation was insane.  The religious accommodation law was written with the concept of religious needs was a one off.  And it suddenly became where I had clients getting 100 requests at one time.  I had a registered nurse in a hospital talking about she couldn't get vaccination because her religion didn't allow taking drugs, because God would self-heal.

I'm like wait a second, that's what you do for a living.  How are you going to sit there  -- so, the degree, the EEOC provided some additional guidance in the summer time that helped us a lot.  There's so many different areas, again, it's evolving.  We've got a new workplace.  Remote work is very much the way the game is right now.

And I mean obviously remote work has automatically some inherent disparities.  Most people who are allowed to work remotely are not people of color.  So, that creates an immediate feeling of disparity.  At the same time, that goes back to your earlier question that the other Commissioner asked about the question about leadership.

If the leadership people are all people who are not of color, then that automatically forces that to be a situation.  But at the same time if you create opportunities, if you force remote work being something for people, what do you call it, of color, and they're not exempt, and companies can figure out I can hire someone in South Carolina, or Korea to do this work remotely.

They're going to not pay New York rates, or D.C. rates, or California rates for that employee.  So, you've got to be careful of the downside, you don't want to hurt some people. A second ago there was a mention about the work environment, and sub-contracting.  You've got to be careful, because built into that also is sub- contracting can also be an NWE opportunity.

So, we've got to be looking at things, not an automatic perception that everything is bad.  Work, the nature of labor employment is fact based, every case is different.  And you've got to look at it as a fact-based scenario.  And I think that would be more important, that the agency understand, and investigators understand each case can be different.

You can't just automatically assume that this is the fact pattern, therefore it has to be the following, it's not that way.

COMMISSIONER DHILLON:  So, you remarked that there are bad actor employers out there, and there are employers who are trying to do the right thing.  And I think you said, don't want to put words in your mouth, but you think most employers are trying to do the right thing.  How as an agency, as investigators, attorneys, how do they distinguish between the two?

MR. GAY:  I mean, I think the first thing is you can tell by who you're working with. If you're talking to somebody who, I think I was saying you know it when you see it.  I can know, I have a better way to say it than that, because to a certain degree when you're working with someone, you can tell whether, or not they're trying to work with you, versus not work with you.

I mean yes, you set some protocols for expectations, what you want to do, and some threshold ideas of what you want to achieve.  But to a certain degree, if you get in a company that doesn't want to work with you at all, doesn't want to cooperate, then you know you've got a bad apple, and there are those out there.  If you get someone that says hey listen, let me sit down, and work with you, let me figure what's going on.

Then you've got ground to work with someone like that.  They're at least open to the idea there needs to be change, they're open to the idea there needs to be improvement.  I mean as a black lawyer, people say sometimes to me, how can you represent management as a black lawyer?  My perspective is I can do as much, I need the guys representing the plaintiff, to work at the same time I need to be inside working to help get them correct.

So, it's not an easy answer for your question, it's complicated.

COMMISSIONER DHILLON:  Well, I think my time is almost up, so thank you very much.

MR. GAY:  Thank you Commissioner.

CHAIR BURROWS:  Thank you, and now Commissioner Sonderling is recognized for eight minutes.

COMMISSIONER SONDERLING:  Thank you.  I want to start with Ms. Conti.  I'm having deja  vu hearing you talk about some of the issues that we've dealt with before.  But when we talk about industries, and the term low wage workers, and our last listening session, I talked about low wage workers, and it's a lot easier in the Department of Labor context to say here is a low wage worker.

These are industries that have historically paid employees less than others, let's target those industries, and let's do enforcement there because the wages are low, where they're not getting paid minimum wage, or their overtime.  And doing that at the Department of Labor, we were very successful, and had back-to-back record- breaking enforcement because we had that metric.

The EEOC is much different, like I said in the last hearing, low wage workers is not a protected class.  So, we have to parse that out, and we have to get into that, and say how can we integrate that in our enforcement?  If of course the low wage workers are disproportionately affecting a certain protected characteristic.  And we can't, it sounds good, it sounds like it's a problem.

But how do we actually, in our enforcement plan, turn that low wage workers, or industries into a protected characteristic that we have the ability to enforce whether it's through employees filing charges, or otherwise how do we make that into a reality, opposed to the larger term that is constantly thrown around?

MS. CONTI:  I really appreciate the question Commissioner Sonderling, and you're right.  The Department of Labor really has authority in such a wide variety of circumstances without the nuance that the EEOC has to deal with.  You're right, you need to have a protected characteristic.

I spent a lot of time in legal aid, and had so many workers come into clinics every week that would tell me stories of what was unfair, unjust, immoral, and we would consistently have to explain to them that unless you can tie it to being a member of a protected class, or you haven't been paid wages, or you're working in an unsafe environment, that otherwise then the doctrine of employment at will is at play.

And what may be unfair, and immoral, still may be very legal.  So, at NELP in particular, when we are doing our civil rights work, we have a broad lens in our work on low wage workers generally, but we also are really working to focus our efforts for example, on black immigrant workers, knowing that they are the ones that have the most difficult in this world, in this country getting good, safe, well-paying jobs, quality jobs.

So, we face the same challenge that you do.  And I think what it comes down to is a finer look at the concept of occupational segregation, which I've mentioned a few times, right?  And looking at the kind of policies, and practices, and biases, and implicit biases that drive people of color into colloquially speaking dead-end jobs, lower paying jobs that are less safe, that have less of a career trajectory for them.

And using that as a window to try to develop both policy solutions that get at occupational segregation beyond what the EEOC can do, but also the EEOC looking at the industries where we already know it's very clear that occupational segregation drives people into those industries.  Much like you did at the Department of Labor.

Where you knew that there were industries with high percentages for example of the immigrant work force, particularly the undocumented work force, where they were easily exploitable.  So, I think in the strategic plan, a real focus on occupational segregation, and where the most vulnerable workers of color, people with records, those with lower educational attainment.

The immigrant work force, to see where they are consistently driven into jobs is a good way to again, use scarce resources efficiently.

COMMISSIONER SONDERLING:  And then staying with you for one more moment, you recently released a very lengthy document on audit testing.  If you could tell us a little bit about that, and if there's anything in there that we could incorporate into our strategic plan?

MS. CONTI:  Sure, and I'll speak really quickly, because I'm sure you want to get to other witnesses.  We recently, along with the new school, released a paper calling on government agencies, private entities to pick up the concept of audit testing.  Matched pair testing more than has been done lately.  It's been done with tremendous success in the housing context, and we want to see it rejuvenated in the employment context.

Bringing together carefully designed pools of very similar applicants where you can control for what makes one applicant different from the other, and those controls are protected classes for example.  And we think it's really important to do this, because it fosters more transparency in figuring out where discrimination is happening, and it provides tools that workers themselves don't have when they're in the workplace, and something happens to them.

They may think, they may know in their gut that it's discrimination, but finding that proof is often very difficult, as you all well know better than I in fact.  We also think it's a proactive tool that can be used to root out discrimination before it happens to actual job applicants, right?  And indeed, I agree with Mr. Gay, that most employers actually are trying to do the right thing.

And one of the things it can help do is show employers where there may be implicit biases that they're not aware of that are informing their hiring processes, and they can remedy them as well.  So, I appreciate the question, and hope everyone will take the opportunity to read the paper.

COMMISSIONER SONDERLING:  Thank you.  And my remaining time for Ms. Martin, and Rodriguez, you could both answer this.  You both talked about the future of work, especially related to care givers, and how remote work is very dominant now after the pandemic.  And the issues remote workers can still face regarding harassment.  So, in our strategic enforcement plan, obviously this has all been illegal for a very long time.

And we do protect all of that discrimination, but how do we integrate some of the future of work issues into an actual strategic enforcement plan, where we're just more than identifying harassment.  We're more than identifying care-giver discrimination.  How do we make it narrowly tailored to let the public know that online harassment in the sense of you're working from home, or remote work is covered under these more broad categories?  And I'll let you both briefly answer, or whoever.

MS. MARTIN:  Well, very quickly, I do think that's one reason why I agree that guidance is very important.  I think that's one opportunity, if the care-giver guidance was further updated, and supplemented, to bring forward these examples.  And that's an important way of communicating with employers, and the general public about what does this look like, how does this translate into real life?

Similarly, I think that there is an important role for outreach, education, guidance around the questions regarding harassment, and online experiences of harassment.  So, I think that those are really important roles for the Commission to take on in the SEP.

COMMISSIONER SONDERLING:  Ms. Rodriguez, anything else on that?

MS. RODRIGUEZ:  I agree.  I mean I think nobody anticipated the pandemic happening, and it's really changed the way we do business, the way we work.  And I think that it's really important for the EEOC, when developing its SEP, to recognize that, and to really be mindful of the way in which workers may be experiencing harassment, or discrimination in these new types of work environments.

So, I think in order to do that, that will require doing a significant amount of outreach, and listening to workers in particular to understand what those experiences look like.  And then also I do think it would be helpful to speak with employers to better understand how these issues are coming up, and what are they doing to investigate them.  Are they running into issues as they investigate them, et cetera.

Because I think as Ms. Martin said, putting out some guidance around that would be very useful.  It would also inform how you enforce, and investigate those issues.

COMMISSIONER SONDERLING:  Thank you.

CHAIR BURROWS:  Excellent, and now we recognize Commissioner Lucas for eight minutes.

COMMISSIONER LUCAS:  Thank you.  Ms. Rodriguez, I want to start with you.  One thing I'm particularly interested in as we move forward with the strategic enforcement plan is complex related racial -- out of the fact that we have an increasingly multi-racial country that looks different than the 1960s, and the kinds of discrimination that may come up on race discrimination in light of that.

And you mentioned that we should focus on systemic, and also intentional race based discrimination.  One thing I've been seeing recently in a number of, a pattern of our cases involving intentional, and systemic race discrimination against black workers is Hispanic preference cases.  Where we have an employer who has a preference for Hispanic workers, or Hispanic speaking workers.

So, the requirement for Spanish speaking essentially will exclude many black workers, as well as Asian, or white workers.  Is that something that you're seeing as well as a significant area of race discrimination?

MS. RODRIGUEZ:  That is an issue that I've seen, including when I was at the OFCCP most recently, we did handle cases like that.  And I think the bottom line is with any sort of job requirement, it has to be job related, right?  You can't have a preference that is unjustifiable.  So, if the job truly requires a language capability, then that is a justified job requirement.

But if there is a preference for one group over another without basis, then obviously that is discriminatory.  So, I would encourage the EEOC to continue looking into those cases, and to pursue them where there seems to be intentional discrimination.

COMMISSIONER LUCAS:  Do you think we need more guidance on that, or I'm always interested in is that a result of a not enough focus in terms of our guidance on that particular area, or is this more sort of incentives for employers perhaps because they may be assuming that someone who is Hispanic might be an illegal immigrant, and therefore they can mistreat them.

So, a sort of dual racial discrimination in both directions.  What do you think is driving some of those systemic cases?

MS. RODRIGUEZ:  So, I've heard a lot of my co-panelists talk about occupational segregation, and often times not just with Latinx  workers, but with other groups as well, when you have a situation where an employer is utilizing a preference for a particular group, they tend to be driving those employees into lower paid jobs.

And so while there may be a preference to hire a particular group for a particular job, usually those are lower paid, worse jobs.  So, I think generally it would be very useful to have guidance on occupational segregation, and to really explain to employers what that looks like, and how it can be avoided.  Not just for one particular group, but for women, and for other groups as well that experience occupational segregation.

COMMISSIONER LUCAS:  Thank you.  I'm not sure if it was you, or another panelist who talked about college degree requirements also, was that in your testimony as well?

MS. RODRIGUEZ:  Yes.

COMMISSIONER LUCAS:  That's something I'm also very interested in as an unnecessary requirement that may then have an impact particularly on black, and other workers of color.  Can you talk a little bit more about that?

MS. RODRIGUEZ:  Sure.  So, Mr. Gay had mentioned the dynamics in which we're currently operating within our economy, and the difficulties that employers are facing to fill open jobs.  And a lot of organizations are doing really great work to identify barriers to equal employment opportunity, including unjustifiable degree requirements.

For many reasons, black workers have lower rates of college degree attainment, for economic reasons, and for other reasons.  And often times, employers will tack on a college degree requirement to a job, even though it's not required.  And that can really serve as a barrier to black workers, and other workers from underserved communities.

So, I do urge the EEOC to continue looking at that issue.  I believe it's probably an issue that can be explored through the hire initiative, which I think is doing really fantastic work identify artificial barriers to equal employment opportunity.  But particularly in this moment in our economy, when so many black workers, and other workers from underserved communities faced historic unemployment rates.

It's very important that the EEOC do all that it can to urge employers to really take a close look at the hiring processes, and to identify unnecessary artificial barriers that can lock people out from good jobs.

COMMISSIONER LUCAS:  Thank you.  And following up on that, Mr. Gay, I was interested on what the management bar's view is on degree requirements. Are you seeing that as an area of increased scrutiny when you're counseling clients about how to handle things well, and prevent discrimination?

MR. GAY:  Yeah, I would be if a client asked me on a job description, or deciding thing, I will look at that as an issue concerning, say why do you really need it?  In New York they've created a group called the 110 Coalition founded by Ken Chenault from American Express and Ken Frazier from American, a couple other CEOs who got together to challenge the validity of these credentials.

Pointing out the objective was to create an opportunity for one million blacks in senior level jobs that would be -- opportunities that would usually be prohibited for them because of the credentials.  Credentials are not necessary all the time, in fact some of the richest people in this world dropped out of college, and are now worth billions of dollars.

A gentleman I think last week just made 10 billion dollars selling his product after he dropped out of college.  So, yes, degrees are good, degrees are helpful, but they're not the true all.  And if you really have a degree, there should be a purpose behind it.  And I'm not objecting to suggestions that that should be challenged, and there should be guidance pointing that reason out.

COMMISSIONER LUCAS:  How do we balance -- I think a lot of employers implemented college degree requirements as a screening device in the work of not being able to, or feeling pressure not to have testing.  So, there's been a lot of discussions about skill based hiring, which I think is admirable, but from your perspective, do you feel like you're perhaps caught a little bit in a pincher grip?

In that on the one hand, testing can have disparate impacts, but on the other hand, skills based testing can also be helpful to prevent someone from having barriers based on unnecessary college degrees. So, can you talk about that tension to the extent that you see that there's a tension there?

MR. GAY:  I see more danger with it being a credential of a college degree if it's not necessary within a skill.  If you have a job, and the skills testing is based upon the skills required for the job, that's probably appropriate.  But if you're creating a situation where you're saying a person has to have this degree, or that degree, and it's really not necessary for the job, that creates much more disparity.

Because it's pointing out yes, unfortunately if you go back into our schools today, graduate school, colleges, there are fewer people of color.  Very concerning to me is very few people of color who are male.  That has really become a very major problem.  Partly because of the incarceration in this country, partly because of the opportunity problem.

So, I am very concerned about just credentials being required, and if it's arbitrary, and not really necessary for the job.

COMMISSIONER LUCAS:  That's very helpful.  You also talked a little bit about electronic monitoring devices being a significant issue you were seeing.  If you could tell us a little bit more about that.  I focused more on the AI angle, but in terms of monitoring devices, I think that would be interesting to explore.

MR. GAY:  I can't point to any particulars, but we have a reality today that companies have people working remotely.  And companies, there's a lot of software that's developed that allows you to monitor more closely, the employees being more closely monitored working remotely than they are working from in their office.

The key stroke, the eye content on the screen, all kinds of ways being done to be able to check that.  To the degree that creates disparity, that concerns me, and I think companies need to be aware that could be a problem and you need to be paying attention to this, and that's what I'm suggesting.  Guidance would be helpful for us to give direction to clients about how to avoid having problems.

COMMISSIONER LUCAS:  Thank you so much.

CHAIR BURROWS:  Thank you, and I recognize myself for eight minutes.  I wanted to continue, just to follow up with Mr. Gay on that, because I find the artificial intelligence has been a particular interest, I think for this entire Commission, certainly for me.  And I would like to find out a little bit more about what kind of guidance, either with respect to the more high -tech machine learning kinds of things.

Or in particular, you've been mentioning this surveillance issue.  So, with respect to remote work, and the increase in surveillance.  So, talk to me a little bit about what you think would be most interesting, or the most helpful for the private employers in particular for us to do in that area.

MR. GAY:  Well, I'll give you an example.  In New York, as effective this January 1st, 2023, there's going to be a requirement that employers who use AI for promotions, or hiring will now have to have a third-party audit of the process they're using.  They didn't give enough details on how to do that audit, or who does the audit, but they now have this requirement that you can't do that unless you have that.

So, this is a virgin area that a lot of people that don't know it might be a problem yet. So, I'm suggesting to the degree the Commission assemble a combination of both plaintiff bar members, and defense bar lawyers, in house, and outside, I think it's very important to have in-house counsel in part of that discussion to sit down, and discuss what they're seeing, what they're visualizing.

Having some CHROs present to see what are you visualizing, and discuss what can be avoided.  Because there are going to be inherently problems there.  Some of those problems are going to be directly from the managers who are overseeing this, and monitoring that.  It's typically more of a human area than it is a system area, even to the degree that algorithms that are developed found the bias of the person loading the algorithm in place.

We've got to be able to address that, and putting people on notice that's a problem is real.  As I read through the proposed comments in the bill they did in New York, a lot of people complained it was only restricting to promotions, and hiring, and all the other things that go on in a workplace were not being addressed.

And I noticed as I looked across the country in the last two, or three years, almost every state is starting to look at AI, and they're creating task forces in a lot of states to be able to look at this, and say to this, so I would look urge the necessity both of the agency, EEOC creating its own task force, and coordinating with the other agencies to kind of look at this in a systematic way across the country.

CHAIR BURROWS:  Thank you.  I'm cognizant to that it's not easy for employers when there are 1000 different approaches to the same issue.  I would like to -- just with respect to the issue of racial justice, Ms. Rodriguez, I know that the Lawyer's Committee has been laboring in that particular venue for a very long time.

With respect to that, are there particular types of enforcement actions in particular, or areas where the EEOC is best situated to look at it?  Where it's really not something that we can expect the private plaintiffs, or civil rights to be able to reach in the same way that the government could?

MS. RODRIGUEZ:  Thank you Chair Burrows for that question.  It's a very important one, because I think for black communities, and communities of color, often times there's a real lack of access to obtaining an attorney, to obtaining legal resources.  And so enforcement agencies like the EEOC play a very important role in filling that gap.

And that's why in my testimony I really focused on systemic enforcement.  Because in order to bring about change in employer's processes that may be having a disproportionate impact on black workers, you really have to focus on it from a systemic perspective.  Only handling a single charge may not get to the root of the problem if the problem in fact is a broader problem.

And we've been talking a lot about neutral policies that may have a disproportionate impact, and Commissioner Lucas brought up unjustified degree requirements that may have a disproportionate impact.  An individual employee may not realize that that requirement is having a disproportionate impact on the group to which they belong.

And that's really the sort of thing that an agency like the EEOC can better tackle than an individual plaintiff.  So, from a racial justice perspective, it is really important to approach these issues from a more holistic perspective as opposed to an individual employee perspective.

CHAIR BURROWS:  And Ms. Conti, you sort of touched on that earlier.  But are there particular areas where the government is really, if we don't step up we're not going to see action on that at all?

MS. CONTI:  We're really worried about this surveillance issue in particular in terms of retail, warehouse, hospitality, some areas of it. And we know for example there are warehouse workers that are made to wear devices on some part of their body during the day that continually tracks them to make sure they're hitting pre-established targets of doing this many widgets per hour, or this many units per hour.

And when they're not, they then are penalized, they are written up, sometimes fired. In many warehouses what we're seeing is it's leading to things like people not taking rest breaks, not taking bathroom breaks when they need them.  And working so hard, and with such unreasonable expectations knowing that they're measured against this device on their arm, that the incident of work-place injuries then are so much higher.

And these are places that are largely, at least as of now, un-unionized, and there's a real unbalance of power.  So, it is very important for the EEOC to step up in situations like this, where Mr. Gay is completely correct, that    there are certainly very important surveillance issues in terms of remote work.  But then there are these jobs in health care, in cleaning hotel rooms, and working in warehouses, on retail floors that can't be done remotely.

Where increasingly people are being watched, and surveilled their every single move. And we know from research studies as well, that there is often more distrust for example that black workers won't work as hard as white workers, or won't work as hard as Latinx workers.  So, they may be subjected to even more extreme surveillance.

And any little mistake they make may be held against them in ways that it wouldn't be held against a worker of a different color, or a different nationality.  So, we think it is very important for the EEOC to be in those situations to help correct the imbalance of power.

CHAIR BURROWS:  Thank you.  And then finally Ms. Martin.  I am really interested, since we had some conversation today about how these different legal rubrics are tricky across the board.  I'm interested particularly in pay, and the work that you all have been doing in that area.  As there's 51 different, or more different approaches to that, what do you think that the EEOC most needs to be doing there?

Or frankly if you want to add anything else, I'm interested to hear.

MS. MARTIN:  Well, in addition to the importance of continuing to work towards reinstating pay data collection, I think that there is important work for the EEOC to do focusing on working to ensure that courts are not accepting defenses to equal pay claims that are not job related.  Salary history is an important place where we've seen a lot of attention.

And growing awareness of the ways in which reliance on salary history can create disparities that are really unrelated to skills, and demands at a particular job.  In pay discrimination cases too, I think there are real issues with comparator standards, and inappropriately narrow requirements for showing who is a proper comparator.

I think there too, there is really importance guidance, enforcement argument to be made about the ways in which jobs that are not identical, but are equivalent in demands, in qualifications, in duties, how those are properly compared in equal pay cases.

CHAIR BURROWS:  All right, thank you all, there is so much more to discuss, but I know that we have -- our time is limited, so I am so grateful.  And we will now take a very short 10 minute recess, and hear from our second panel thereafter.  Thank you so much.

(Whereupon, the above-entitled matter went off the record for a short recess.)

CHAIR BURROWS:  And I will start with Manjusha Kulkarni, who is executive director of AAPI Equity Alliance, which serves, and represents the 1.5 million -- I am sorry, I am in the wrong panel, okay, thank you.  So, we will be hearing from her, but that will be a little later.  So, I'm going to start with Emily Dickens, who is the chief of staff, and head of government affairs, and corporate secretary for the Society for Human Resources Management.

And her organization's mission rather, is to create better workplaces, where employees, and employers thrive together.  Next, we'll hear from Linda Correia.  She's the president of the National Employment Lawyers Association, and the founder of Correia & Puth PLLC.  NELA's mission is to empower workers, and make sure that worker's rights attorneys through legal training, and advocacy for laws, and policies will really help to make a better, and more level playing field for workers in this country.

And then we have David Fortney, co-founder, and partner at Fortney & Scott, a management employment law firm here representing employers from Fortune 50 companies to small startups.  Mr. Fortney is also co-founder, and co-chair of the Institute for WorkPlace Equality, a nonprofit employer association that provides training, and education to assist companies in understanding equal employment opportunity laws.

And finally we have, I believe our remote participant today is Eve Hill, partner at Brown Goldstein & Levy, and her practice focuses on disability rights, and civil rights.  She's chair of trustees for the Bazelon Center for Mental Health Law.  And so I thank all of you again for being here today.  And as a reminder you each have five minutes for your opening remarks, and I'm pleased to start with Ms. Dickens.

MS. DICKENS:  Well good morning Chair Burrows, and distinguished Commissioners.  I'm honored to testify before the Commission today.  As you mentioned, SHRM has 317000 plus members who impact the lives, and livelihoods of more than 115 million workers, and their families, which is why we value our long standing partnership with the Commission.

Your agency is essential to our member's mission to create better workplaces, and a better world.  And I want to bring to your attention today several key issues that are critical to the mission.  Untapped talent pools, skill based hiring, artificial intelligence utilization, and compensation data collection.

At SHRM we call the often overlooked workers such as veterans, individuals aged 60, or older, differently abled workers, and those with a criminal record, and opportunity youth, untapped talent pools.  These job candidates often possess specialized in demand skills that we believe would be a focus on alternative credentials.

Particularly with respect to untapped talent pools that could serve an important role in encouraging their employment.  SHRM stands ready to provide technical assistance to the Commission on these fronts.  Next, we'd like to discuss, let's talk more about the formerly incarcerated, or what we call second chance job candidates.

Way back in 2018 when that First Step Act was passed, we jumped at the opportunity to create workplaces that would receive these individuals as they re-entered the workplace.  Through the SHRM Foundation, we developed the getting talent back to work initiative, which provides a tool kit with no cost high quality resources to support employer efforts to recruit, welcome, and develop the 80 million American adults with a criminal background.

We urge the EEOC to partner with us in working with the Bureau of Prisons to better help prepare returning citizens, and employers to support a successful return to work for these individuals.  Next, when we talk about differently abled workers, we know the responsibility to enforce the Americans with Disabilities Act comes under your authority.

And you provide guidance to create opportunities for this underutilized work force. We applaud the Commission for the clear, and concrete guidance issued in May regarding how the ADA interacts with software, or other digital tools when used in the hiring process, and we welcome further guidance on how to expand, and increase employment opportunities for differently abled workers.

Finally, I'd like to touch on older workers.  SHRM urges the EEOC to take a leadership role with other federal agencies to identify barriers, and issue guidance to help employers build out programs that encourage older workers to re-enter the work force.  For example, the treatment of pensions, or retirement benefits should be reimagined to remove barriers to entry.

Beyond untapped talent, SHRM has made skills based hiring a priority.  The replacement of educational attainment with skills assessments requires the ability of an organization to craft job descriptions that reflect the knowledge, skills, and abilities necessary for on-the-job success, and identify assessments aligned with those KSAs.

Some examples of assessment tests are cognitive ability tests, job knowledge tests, personality tests, and integrity tests.  However, the uniform guidelines on employee selection were drafted in 1978.  SHRM urges you to revisit these roles, and to provide compliance assistance to employers seeking to expand equity through the use of skills based hiring.

Lastly, we all know technology has greatly changed the world of work, and artificial intelligence has already transformed how businesses operate.  But potential benefits must be weighed against potential risks.  We commend the hire initiative for examining the issues surrounding the use of AI in the work force.

According to our research nearly one in four organizations use automation to support HR related activities with 79 percent of users utilizing AI for recruitment, and hiring, or planning to use it in the next five years.  AI helps to reduce to the time it takes to fill open positions.  Nearly three-in-five organizations report that the quality of their organizations hires is higher due to the use of AI.

This is not the moment to impose heavy handed regulatory restrictions that will set key HR functions back, and impede the ability to create, and identify talent pipelines.  Before concluding, I want to share a few thoughts on the National Academy of Sciences study that evaluated compensation data collected through the EEO-1 form.

First, the serious flaws, and design of the pay data collection identified in the report raise issues about the value of this data.  EEOC should engage in notice, and comment rule making regarding any future pay data collections so as to allow stakeholders to voice their concerns, and address those flaws.

The EEOC may act on these recommendations of the NAS, and improve its measurement instrument through extensive field testing before any additional collections.  Finally, the report warns the Commission that it should thoughtfully research the issue of pay data, engage with the public in transparent ways, and address the privacy concerns, and financial burdens inherent in the current collection instrument.

HR professionals work hard on compensation equity, and are ready to work closely with you on this important issue.  We believe providing more opportunities for collaboration will strengthen your efforts.  At SHRM, lastly we believe in civility in the workplace.  It's critical to creating a positive culture.  We urge you to continue to lead by example.

It's been an honor to work with this particular Commission, and to see how you all have worked across the aisle on so many critical issues.  We look forward to serving as a conduit between HR professionals, and the EEOC, so we can achieve our common goal of eliminating discrimination in the workplace.  Thank you.

CHAIR BURROWS:  Thank you.  And now I recognize Ms. Correia for five minutes.

MS. CORREIA:  Thank you.  First, I'd like to thank the Commission for its efforts to preserve access to the legal system for workers exercising their rights under our employment discrimination statutes.  The Commission's focus on practices that discourage, or prohibit employers from exercising their rights, or that impede EEOC's investigative, or enforcement efforts is very important.

The use of non-disclosure agreements, or NDAs interferes with workers bringing their claims to the EEOC, and impedes EEOC's investigative, and enforcement efforts.  We at NELA think that there is an important role for EEOC to play here.  There's been a lot of public discourse recently about the use of NDAs in the contexts of sexual harassment cases, and whether they're helpful to maintain a worker's privacy if she's been sexually harassed, or even raped.

Or whether they gag workers, and are more beneficial to sexual harassers, and the companies that continue to employ them.  But NDAs are a cornerstone of the practice of concealing evidence of unlawful behavior.  And this is not a partisan issue, it's not just about sexual harassment, but also racial harassment, and other kinds of discrimination, and retaliation.

An NDA is a contract to conceal from other workers information that those workers could use to support their claims in EEOC's investigation, and enforcement activities.  That means NDAs conceal information that EEOC investigators need to assess the strength of claims, whether to even ask a respondent for a response to the charge, whether to investigate further, and ultimately whether to make a finding of discrimination.

So, NDAs create a systemic barrier for workers who want to pursue their claims.  NDAs also undermine EEOC's efforts regarding bystander intervention training, which is designed to encourage workers to speak up on behalf of their co-workers, to oppose discrimination, or retaliation when they see it.

Discrimination, and retaliation are pervasive because they thrive in the dark.  When a worker signs an NDA, they agree not to tell coworkers sitting in the next cubicle, or in the next office about a predator's behavior, about a supervisor's discriminatory actions, or about the company's discriminatory, or retaliatory response.

The employer knows about the behavior, but the co-workers are left in the dark, vulnerable to the same harassment, or discrimination, and retaliation.  And we would like to work with you to provide examples where this has been especially problematic.  A patchwork of state laws have been adopted in the past four, or five years that grapple with these issues.

But the chilling effect that workers face without witnesses is severe.  So, we suggest three ways that the EEOC's enforcement efforts should turn more directly to protecting these workers.  First, the EEOC should say in direct terms, you cannot make a contract to conceal witnesses, or information from other workers, or from the EEOC.

Second, EEOC could also consider whether respondents use the fact of confidentiality based on NDAs as a justification for not truthfully disclosing previous claims of discrimination, or retaliation.  Third, the EEOC should clarify that vague non-disparagement agreements are not an acceptable way to conceal truthful statements, or documentary evidence of discrimination, or retaliation.

This would not be the first time EEOC has done something like this.  In the 1990s the EEOC recognized that employers were insisting on provisions that prohibited workers from filing an EEOC charge as a condition of settlement.  The EEOC issued enforcement guidance in 1997, and the practice stopped immediately.  To this day, boilerplate settlement terms expressly say that a worker still has a right to file a charge.

Although they may waive the right to recover a remedy through their own lawsuit, and they may waive the right to recover a remedy in a case brought by the EEOC on their behalf.  New guidance could clarify that NDAs interfere with the right of a worker to file a charge, or to assist, or participate in any manner in an investigation of a claim of discrimination, or retaliation.

We recognize that there's a tension among worker advocates, and employer advocates over whether the use of NDAs should be permitted to a certain extent to protect the privacy of parties where they choose to use that mechanism, but this can be straight forward.  Once a lawsuit is filed, facts in the public domain cannot be the subject of a contract to conceal those facts.

No one should be forced to agree to such a contract, yet employers continue to require NDAs even after a lawsuit has been filed, and this interference should be ended.  The important public policy goals to prevent, and ultimately end discrimination in the work- place should be paramount here.  The public policy goal of preventing, and ultimately eradicating discrimination, and retaliation should be most important here.

Workers who are mistreated in the workplace, or who witness illegal conduct aimed at another worker should be encouraged to tell the truth, and they should be protected from any practice that would stop them from doing so.  Clear guidance on this from the EEOC would be a critical step that the EEOC could take to eradicate workplace discrimination.

I thank you so much for the opportunity to be here to speak with you, and I welcome your questions.

CHAIR BURROWS:  Thank you.  And I recognize now David Fortney for five minutes.  I apologize, I think our clock was showing eight minutes earlier, so I apologize for that.  But we will do five minutes just to keep it consistent with the plan here.  Thank you.

MR. FORTNEY:  Terrific.  Good morning, thank you Chair Burrows, Vice Chair Samuels, and Commissioners.  It's a privilege to be here today, and to be able to provide some input as you evaluate how you spend your limited resources, and set your enforcement priorities.  I want to focus on two specific areas that I think are really at the forefront for most employers.

Artificial intelligence, and the newly released recommendations on collecting pay data. Both of which I know have been touched on by others, but I want to really hone in on those a little bit in the limited time available.  With respect to artificial intelligence, the current guidance, although I want to acknowledge, and appreciate the most recent guidance under the ADA, it's helpful, I would call that a good start.

We need more guidance.  There are efforts afoot, and I believe the Commission's aware, but the Institute for Workplace Equality has a technical advisory committee, former Vice Chair Vicki Lipnic is chairing that.  I think it would represent much of what the Commission would like to do, and I hope its report, which will be issued in the fourth quarter, can be a jump start to the Commission's process.

In the technical advisory committee, we have a cross discipline set of experts, about four dozen, about 45 to 50 participants including industrial organization psychologists, employment attorneys, both representing workers, and employers.  Employers who use AI tools, vendors who develop those tools, as well as former both EEOC, and other enforcement agency officials.

As you might imagine, the discussions are robust as we like to say, and varied.  In fact we spent all day yesterday, a very long day, discussing a number of recommendations.  We're very honed in, and focused on developing recommendations on the application of the uniform guidelines, and I think we're going to get there. The report as I indicated, will be made public.

We will certainly share it with the Commission, and would commend it, and would appreciate consideration.  And obviously any follow up, we'd be interested in doing.  One other point on AI that I think is important, not addressed by our report, but I want to recognize the EEOC, we've touched -- other witnesses on other state agencies, but there are other federal agencies.

In addition to OFCCP, we have the FTC, and others.  Respectfully, we would like to see the federal sector try to get organized.  I appreciate each agency has its own jurisdiction, and responsibility.  Largely EEOC, you should be the lead agency in coordination, and avoiding redundancy, and certainly at a minimum, consistent application of the Title VII principles are imperative.

So, that leadership needs to come from this agency, and we would ask that that occur with your fellow agencies.  Second, I want to, in the brief time remaining, touch on the NAS report.  The NAS report regarding pay data collection.  We've not been a stranger to these issues, we've had the privilege of presenting to the Commission before, to the National Academy of Sciences.

And certainly at this point to be specific, we do not favor a repeat of what was done last time.  Do not simply put out component two, and use box five instead of box one W2 data. That is, respectfully would not be okay, it would not be well advised, and it would be directly contrary to what the National Academy of Sciences has, in a very thoughtful, 300 page, detailed report, recommended.

Specific considerations that I think we can deal with.  The concept of a comprehensive plan that is well coordinated, with EEOC as the collection agency, OFC, and the Justice Department.  That was recommended in the first NAS report, reiterated in this one, that's imperative.  Second, a meaningful pilot program.

Do not unleash a data collection, I appreciate the last time it was done at the behest of a federal court who effectively pulled a chair up to the table, and directed what we all had to do.  That should not be repeated this time.  We have the gift of time, let's be thoughtful, and do something that is going to be effective.

A rule making process would be appropriate, not just a Paperwork Reduction Act, rule making is much more robust.  We have a lot of Administrative Procedure Act expertise within your agency that would be appropriate.  The security of compensation data.  This is, as they say, a big deal.  Not with respect to the EEOC, the security is well guarded here.

In fact, there are criminal penalties that attach, and as far as I know, a perfect track record by this agency.  But under your work sharing agreements, the collected data is shared with a multitude of agencies.  The Labor Department, state agencies, among others.  That effectively, and once it leaves here, then the protections on the data are much lower.

At best FOIA, Freedom of Information Act protections, and this isn't just an academic discussion, the Labor Department currently is responding to a request for five years of EEO1 data by every federal contractor.  Now, whether that's going to be produced, how it's going to be handled, so understanding this, perhaps imposing the same level of security that it enjoys with EEOC would be appropriate.

That may require legislative changes, but respectively from our vantage point, the current system, once you turn the data over, it's like putting it into a sieve with at least 50, or 51 holes, because you've got the states, you've got the other agencies, and you only have FOIA protecting it, that's not sufficient.  If pay data is to be collected, base pay.

That base pay is the most effective, we have detailed the reasons for that, not the W2 earnings.  Finally, with just touching on the revamp of the EEO1 form that was recommended, that's an interesting, that's not a one, and done.  That would require a thoughtful process, and energy.  But certainly reviewing the EEO1 classifications, and using the standard occupation codes, that would start to collect data in a more meaningful form that would be beneficial.

The EEO-1 form keep in mind, is a 1966 vehicle, and everyone I think agrees, it does not match well what we have today.  So, I'm short on time, I just would end with, with respect to the uniform guidelines, application of AI, more guidance on that specifically.  We're going to provide a detailed report, and recommendations that we hope will be helpful, and will continue to look to work with you on that.

Number two, the pay data collection, let's take a pause, let's do it thoughtfully, and let's do it well if it's going to go forward.  Thank you, and I'd be pleased to answer any questions.

CHAIR BURROWS:  Thank you, and with that I'll recognize the vice chair for eight minutes. I'm sorry, I apologize.  Eve hill will have her opening statement, and she is recognized for five.

MS. HILL:  Good morning Madam Chair, and honorable Commissioners, thank you for having me today.  I'm really sorry I couldn't be there in person.  I'll be focusing on two groups of workers, LGBTQ+ individuals, and individuals with disabilities.  Now that the Supreme Court has ratified EEOC's view that LGBTQ+ persons are covered under Title VII, a few issues will remain to be clarified.

Such as gender-based dress, and hairstyle codes, bathroom issues for transgender employees, and the fact that harassment may take different forms for LGBTQ employees.  Most of this can be addressed through guidance, and private attorneys can take it from there.  But some things that the EEOC has particular tools, and resources to address include the intersection of LGBTQ+ rights, and employer's claims of religious freedoms.

Those will undoubtedly be prevalent issues in coming years, and the EEOC should take this moment to establish strong principles under both Title VII, and the Religious Freedom Restoration Act of how limited the circumstances are when an LGBTQ+ person would substantially burden an employer's religious practice, and not be the least restrictive means of combating LGBTQ+ discrimination.

But the biggest barrier will likely be that LGBTQ+ discrimination will go underground.  Employers will stop being explicit in their discrimination.  The reason for not hiring a person will be the same, the result will be the same, in that the person will not be hired, but no reason will be given, and in too many instances, private litigants, and their attorneys will not be able to prove discrimination.

Employers should not feel free to intentionally discriminate against LGBTQ+ people in their work forces.  And the EEOC has unique tools to be able to ensure that they don't, by reinstituting audit testing, also known as matched pair testing, to root out that hidden discrimination.  Regarding disability, many of the cases I am encountering these days involve inaccessible employee use technology.

Too many employers don't even consider accessibility when they purchase new technology. And as a result, when they hire a person with a disability, they have to cobble together accommodations to work around the inaccessibility.  When an inaccessible technology is baked into the center of your business, accommodations to overcome it may be expensive.

But buying inaccessible technology is not an excuse for excluding employees with disabilities, and people with disabilities should certainly not be the ones who suffer the consequences of ill-advised purchasing decisions. The EEOC should make clear that employers cannot escape the obligation to provide truly effective accommodations.

Even if they are expensive if the employer could have avoided the need for a work around by buying an accessible version of the technology in the first place.  Artificial intelligence based discrimination is one of the things that is most frightening me right now, I commend you for launching your agency wide initiative to address it.

AI tools are black boxes, and the employers using them often don't know how they work.  They often use current employees to predict who should be chosen as future employees, and people with disabilities rarely show up in statistically significant numbers in any employee pool, and our experiences are often outside the bell curve in a number of ways, so we will rarely be chosen by an AI based screening tool.

To teach AI you need data sets, and to test it you need data sets.  So employers, and enforcement agencies should insist that AI based screening providers teach, and test the tools on large, documented diverse data sets on an ongoing basis to ensure the results don't discriminate.  And for those that don't do that testing on a regular basis themselves, the EEOC, and the federal government should test them as well to provide the basis for enforcement.

EEOC, and the federal government should also play a leading role in developing such diverse data sets.  AI is also now being used on the job for surveillance through facial recognition, eye tracking, mouse tracking, etcetera, and these systems raise discrimination issues for those of us who look, move, or work differently because of a disability.

So, the EEOC should address the need to provide accommodations in those systems.  And we've now learned that most jobs, and testimony can be done remotely, but I'm already hearing employers who are denying remote work as an accommodation as they bring their employees back into the office.  It'll be important for the EEOC to focus on cases where employers are denying continued remote work to employees with disabilities.

Or harassing employees out of seeking remote work as an accommodation, such by requiring burdensome recertification unnecessarily frequently.  I would also ask that the focus on vulnerable workers both continue, and expand to include LGBTQ+ youth, and low wage workers with disabilities, and thank you very much for your time.

CHAIR BURROWS:  Well thank you, and my apologies again for almost skipping you.  We are delighted to have you with us, even though you are not here in the room with us.  And with that, I will recognize the vice chair for eight minutes.

VICE CHAIR SAMUELS:  Thank you so much to all of you for your really valuable insights, and I'm delighted to have this opportunity to begin, but not end our dialogue, since I really look forward to continuing the conversation as we move forward in implementing our priorities.  Let me start with Ms. Correia.  You are probably aware that retaliation is the most frequently cited basis for discrimination in the charges that we receive.

And that in fact it has been growing over time.  Do you have suggestions for how EEOC can best ensure that employers understand their obligations not to engage in retaliation, and workers understand their rights to be protected from it?

MS. CORREIA:  Well thank you for the question.  In this context, employees need to understand their rights, workers need to understand their rights, and employers need to understand what their obligations are.  And if, as was said in the earlier panel, employers are on the same page trying to ensure that we have a level playing field among workers, and employers.

And that the goal is to have a work-place free of discrimination, or retaliation, then taking adverse actions against workers who assert their claims, or who try to help other workers with their claims is something that they should understand that is disallowed.  And there have to be consequences for that when it does happen.

Employers who continue to employ individuals who discriminate against other employees, or who retaliate against employees send a clear signal to their work force about what is, and is not tolerated, and when that kind of behavior is tolerated, employees, or workers are afraid to speak up.  They're afraid for their livelihood, they're afraid that they're going to be retaliated against.

And that discouragement of ensuring that workers stand up for their rights, and for their co-workers rights is retaliation.  And for the EEOC to state that unequivocally in any way that it can, in guidance, would be very helpful.

VICE CHAIR SAMUELS:  Thank you, those are really helpful suggestions.  Let me ask both Ms. Dickens, and Mr. Fortney to expand a little bit on your comments about AI, and I look forward to seeing the report that former Chair Lipnic, and others are preparing, I'm sure it will be very useful.

But let me ask you this.  There is I think an increasing consciousness among large employers, that AI, while it has tremendous benefits, can also have pitfalls that need to be avoided.  Not so clear to me that either small employers, or vendors of the technology understand the potential risks.  Do you have suggestions for how EEOC can help to ensure that those particular groups of AI users, or producers understand their responsibilities?

MS. DICKENS:  Thank you for that question, Vice Chair.  As you know, almost 60 percent of SHRM's membership come from small and

medium-sized companies, so this is something we've been seriously considering.  And, here's how we think you can help them education, you all started this, you've been talking about AI in the workplace for so long, getting that education outgoing in front of these small businesses, being where they are.

But, also holding meetings with the AI vendors to have candid discussions with them, and partner with them in creating solutions, as well as holding similar meetings with interested stakeholders, like employers, because if the AI program is producing bias it's the employers who have to be -- may potentially have found themselves in violation of state and federal labor laws.  Also, I think overall, you can lead in providing guidance on the issues surrounding liability and transparency standards.

So, those are some quick ways I think you can get in front of those, holding these virtual meetings so that they can have access to you, because all of them can't travel.  But, I think providing additional education like you've been doing, visiting with these smaller organizations, and partnering organizations like SHRM.  As you all know, we have tons of events where we get these small and medium-sized business representatives, getting in front of them and talking about these issues and providing guidance will be helpful.  Thank you.

MR. FORTNEY:  Thank you, I think those are all excellent suggestions, and to build on those, the vendors in our experience, is a bit of the Wild West.  There are some vendors that, when you say, uniform guidelines, they know exactly what you're talking about, and what that means, and what validation means.  And, there are others that are primarily technology driven, very talented individuals, but haven't a clue as to the legal landscape in which their products work.

So, reaching into that sector, that is, the development sector, is very important.  Your jurisdiction, for better or worse, is limited to employers, customers.  And so, figuring out a way -- and, that's why I think the uniform guidelines and the concept of whether products, services, you know, software, can be validated, that will create market incentives that will, in my opinion, lead to vendors then becoming fairly familiar with what the uniform guidelines are, making sure their products are brought up to standard, because they will be rewarded in the marketplace.

So, I think that, even though your jurisdiction doesn't directly reach -- in addition to outreach, which I think is really important, but I think there's also some further work that can be leveraged.  Thank you for that question.

VICE CHAIR SAMUELS:  Those are very helpful suggestions, and it's obviously a whole new world out there, so I look forward to working with both of you.

A question for Ms. Hill, I think that you said that harassment of LGBTQI+ people manifests in different ways than it may against other protected groups, can you say a little bit more about what you mean by that, and the ways in which harassment in particular affects that community?

MS. HILL:  Sure, recent studies have indicated that harassment against LGBTQ-plus individuals is often based in religion, and so they are told either, that they are going to hell or that they need to engage in some religious conversion in order to cure their, apparently considered, condition.  And, this is obviously harassment on one side and yet, maybe, a truly held religious belief on the other, and those things need to be navigated.

VICE CHAIR SAMUELS:  Could I also ask you, I think you said that, maybe not just in the context of harassment, but that you believe there are only limited circumstances in which the presence of an LGBTQI-plus person in the workplace would impose a substantial burden on someone's religious beliefs or exercise, can you talk a little bit more about that?

MS. HILL:  Sure, so the Religious Freedom Restoration Act only prohibits religious -- only prohibits -- or permits LGBTQ+ discrimination by an employer if they have a sincere religious belief -- and that's the employer, not just any co-worker -- if it puts a substantial burden on the religious exercise -- not on the religious belief, but on the religious exercise -- and it is not the least restrictive means of combating LGBTQ+  discrimination.

So, there is a strong government interest in combating LGBTQ discrimination, and, if they can't do it through any other way, it is permitted, even then, to propose to put a substantial burden on the employer.  But, it should remain clear that, hiring an LGBTQ+ person is not an endorsement or facilitation of LGBT+ activity.

And, the Supreme Court has understood this in previous cases, in saying things like -- when schools were required to allow military organizations to recruit, that students can appreciate the difference between speech a school sponsors and speech the school permits, because legally required to do so, pursuant to an equal access policy.  Therefore, requiring non-discrimination against LGBTQ+ people, does not indicate sponsorship or endorsement, and is not a substantial burden on anyone's religious exercise.

VICE CHAIR SAMUELS:  Thank you, I'm out of time, unfortunately.  But, again, I look forward to continuing the dialogue.

CHAIR BURROWS:  Thank you, we'll now recognize Commissioner Dhillon, for eight minutes.

COMMISSIONER DHILLON:  Thank you.  Mr. Fortney, I appreciated your comments on the recent report from the National Academy of Sciences and I wanted to follow up on it, I'm hearing from stakeholders who are expressing concerns between the tension between the data that the NAS is recommending that the EEOC gather on each employee and employees' rights to privacy.

Among other things, these stakeholders are pointing to legislation that's recently passed in California, that will go into effect in early 2023, the California Privacy Rights Act.  And, among other things, the CPRA gives employees the right to request that employers delete personal information that the employer has collected, and further, gives employees the right to limit the use and disclosure of sensitive personal information.

What advice do you have for the Commission as it considers potential additional expanded data collections against this backdrop, this rapidly expanding privacy right environment?

MR. FORTNEY:  Thank you for that question.  Yeah, I think that the recommendations that occurred in the report on revamping the EEO-1 report, frankly -- at least in my view -- weren't anticipated, so they sort of, you know, sort of dropped in on us, so it (audio interference) sure there was as much input.

There was a very extensive list of data that was recommended to be collected, education level, sexual orientation, a vast amount of data that many employers, to begin with, may not even maintain or collect.  So, presumably, to respond to that you would have to now start collecting the data so there's a huge, much greater burden than I think the -- with all due respect to the academics that prepared the report -- than they appreciated, number one.

Number two, maintaining the PII is something that, increasingly, most employers are realizing less is better.  For a whole host of reasons, the state law legal landscape is complicated, data breaches become much more complicated, and, respectfully, government audits -- when you have this information, the government increasingly asks for huge amounts of personal identifying information in the course of audits, much of which, respectfully, we often believe isn't relevant but it's hard to say no if you've collected it.

So, I think that there is a balance, there are legitimate interests, people are concerned on diversity initiatives, and wanting to understand their workforce, and facilitating opportunities for people to provide that information, if they want to, voluntarily.

That's, kind of, level one, but often the recommendation was that the EEO-1 report would collect, effectively, for every single employer in the United States with 100 or more employees, a wide range of data.  Which, strikes me as being wildly not necessary and over overzealous.

So, I think the answer, to sum up, is largely no, to those recommendations.  And, that would help minimize conflicts with the state law -- if it goes forward we have to deal then with the conflicts, because I'm not sure there's going to be preemption, and then we're in a terrible position.

CHAIR BURROWS:  Well, and it's interesting that you raised the PII, personally identifiable information, point because that, actually, was going to be my second question.

I'm hearing those concerns, too, that, as you point out, even if the EOC collects the data, if it then provides data to other state agencies, to other federal government agencies, the breadth of the data that the NAS has recommended the EEOC collect is PII.

And, were it to fall into the wrong hands, were it to be misused, it could result in real harm to the employees that were trying to help, through identity theft and all the rest of it, and I'm wondering if you are hearing those similar kinds of concerns?

MR. FORTNEY:  We have similar concerns, and, in fact, in some instances where we've had, in the course of audits, that type of data collected by the government where the auditors then have lost the data they've collected, or misplaced it on a laptop or something.  We're then faced with having to notify the employees, notify the contracting agencies -- these are typically federal contractor's situations -- it's a mess.

And, largely, in my views, much of the data collection is unnecessary, it's sort of this overzealous, if you have it we have to collect it.  As opposed to a thoughtful, step-by-step, are there specific indicators, is there a real reason, what specific issue are we trying to address, and for which employees, if we need additional data, is it needed?  And, I think that would help, tailored as opposed to just put it all -- everything you've got, put it on the table.

CHAIR BURROWS:  Thank you.  Ms. Dickens, I wanted to stick with the theme of the NAS report, and specifically, its recommendations for future collections.

As Mr. Fortney alluded to, the NAS has proposed the EEOC collect additional categories of information about the nation's employees, including on an individualized employee-by-employee basis, race, ethnicity, gender, gender identity, sexual orientation, age or date of birth, disability status, veteran status, job title or some type of occupational code, FSLA exemption status, number of weeks worked, (audio interference) wages, total hours worked for non-exempt employer, full-time, part-time, or seasonal, education, job experience, tenure, and recommended the EEOC explorer how to gather information about individual employees' job performance.

I've heard some people describe this as, kind of, the boil the ocean kind of approach, what kind of burdens would this place on SHRM's members, to collect and provide this kind of data to the EEOC?  All of your members but, as you've alluded to, you also have a number of small employers, and I'm particularly interested in the burden that it would place on those employers?

MS. DICKENS:  Thank you, Commissioner, I'm exhausted just hearing that list, so can you imagine the HR professional in an organization with 25 to 50 people, who is the only HR professional there, she or he responsible for benefits management, responsible for hiring, and all the other issues, and regular compliance that they're dealing with every day?

It's exhausting, it's overwhelming in a time where we're losing employees because of the market.  And so, when I think about that burden, I think about the cost of that burden to a very small business who is really trying to do the right thing, and being able to use data that's already being collected would be so much easier.

So, I think, when we think about it, the burden of course is cost, but it's the burden on people.  And, we're talking about how our people are in this post, kind of, post-COVID environment, the mental health issues we know many of our HR professionals -- we call them the other frontline workers, because they've been the ones that are dealing with all of the issues that arose, in terms of getting people safely into the workplace, and all of those issues.

So, I would say to you that, the burden is extremely high.  Not just the monetary burden, it's the burden on the individuals in these small and medium-sized companies who are really trying to do the right thing, comply with the pre-existing things that they're already complying with and here's something else, too.  So, it's a very high burden.

CHAIR BURROWS:  Well, thank you, and I think you make a really important point.  I think HR professionals, I mean, at all times, but particularly during the pandemic and since the end of the pandemic, have really been on the frontlines.

And, they've had enormously stressful roles, and critical roles, to play in their organizations.  And, I think, as we perhaps knew but we've now more fully appreciated the critical role that HR professionals play in our nation's workforce, and they need to be supported.  I think I am out of time.

CHAIR BURROWS:  Thank you, and we'll go now to Commissioner Sonderling, for eight minutes.

COMMISSIONER SONDERLING:  Thank you.  So, I want to start, a question for all three of you, because I think we have a very nice cross-section here, we have HR, plaintiffs' representatives and management-side attorneys here.  So, this is about our strategic enforcement plan, we put out our strategic enforcement plan, it's going to -- if it looks like years past -- it's going to have a list of

priority areas where the Agency needs to spend our very valuable and limited resources to enforce, because that's what the workforce needs.

So, when we identify those, we will publish them in final form at some point, and what will happen is, Ms. Dickens, you'll have hundreds of HR professionals calling that 800 number you have for the hotline saying, what does this mean, how do I comply with my policies and practices, how do I make sure I'm not violating any of these strategic enforcement plans that the EEOC says?

Ms. Correia, you will likely have employees, or groups of other plaintiffs-side lawyers, looking at the strategic enforcement plan very closely to make sure that you're finding employees who can bring these cases to the EEOC.  And, how -- from the outside -- you can also help us get those cases to make sure that our strategic enforcement plan is actually useful, that we're getting the charges of discrimination.

And, Mr. Fortney, from a management side, whether it's in-house counsel or fellow defense-side, either corporate counsel or litigators, are also going to look at this, and how are we going to defend these kind of cases?  So, that's going to be the reaction from what we put out, so how do we get ahead of that?

And, I want to ask each of you individually, with your very unique and distinct backgrounds, what can we do alongside with this

strategic enforcement plan, to translate it into HR, to translate it for employees, and translate it for employers at the outset?  And, also, as it evolves, to make sense of this so it's effective?

I'll just start in order of where you're sitting, Ms. Dickens?

MS. DICKENS:  So, I'll say, you can't do it alone, right, you're going to have to lean on organizations who are working with HR professionals, and with employers, on getting this information out.  I think educating in advance about compliance and ways that they can comply with it, and I think also, it'll be so important to hear their voices as they're -- to listen to them as we're getting ready for you all to roll out this plan.

And, I think the other piece to this is, you can't talk enough about education, about those things that you find important, and getting them as educated about it in advance.  And, you do, this particular Commission has done a great job about doing that, you write tons of academic-like articles about this, you get out in front of -- you're on LinkedIn with these articles, you're where people are reading and looking for information, and you're getting that to them.

And, I think getting in front of them even more, and finding other ways to be visible on the topics that are going to be important in this plan, would be crucial, too.  And, I don't think there's a cost to that, right, I think it's just really being strategic about how you can get in front of the people who -- especially HR professionals, who are day-to-day going to have to manage this plan.

COMMISSIONER SONDERLING:  Thank you, that's great.

MS. CORREIA:  Thank you.  I'm going to say, I don't think this is complicated, I think if the EEOC is clear about the expectation of non-discrimination, non-retaliation in the workplace, and holds stakeholders to their obligations to ensure that we are working toward that goal, and is not ambiguous about what the expectations are, and doesn't just put out sort of aspirational, broad concepts about how we would all like everybody to have an equal opportunity, then I think that is extremely helpful, so that the parties do understand what their rights and their obligations are.

When the EEOC speaks about what is acceptable and what's not acceptable in the workplace, employees get the message and so do employers.  And so, I think clarity is important and making sure that both stakeholders are getting that information.

COMMISSIONER SONDERLING:  Thank you.

MR. FORTNEY:  I agree with that, and I think that -- so, the key is to take -- it's a bit of a misnomer, perhaps, to call it an enforcement plan -- I know that's the nomenclature -- it's a compliance plan.

Enforcement suggests that, you're going around seeing how many enforcement claims or actions you can bring, and some people run a scorecard on how much money you collect.  The purpose is to promote compliance, clarity promotes compliance, you have other tools in your toolbox, you can issue opinion letters, you can be very specific.

I will tell you, from our side of the equation, when an opinion letter comes down, that is a very useful tool with a client to help drive compliance.  It creates a nice, well-defined set of parameters, most companies will say, look, you know, within a wide range of reason, if that's what it takes, if I'm there and it's compliant, great.

So, opinion letters help, and your strategic -- I'm going to rename it, if I can -- compliance plan, because I think that's really what it's about, then you leverage the resources appropriately.  You still will have resources and, unfortunately, necessity where there's not compliance, then you pursue enforcement.

COMMISSIONER SONDERLING:  So, it sounds like we should do a second guide of translation for HR, for employees and employers would be helpful for, at least, getting the word across of what the strategic -- or, now renamed, compliance plan -- actually does.

I want to go to Ms. Hill, online, in the prior panel, I asked about our strategic enforcement plan, related to the future of work, remote work, and the hybrid work environment that a lot of employees are facing, and I asked the panelists about how we can more narrowly tailor it to the issues they were worried about.

From your perspective from, a disability perspective -- I know you briefly talked about some of the technology issues, but again, disability discrimination is illegal, employers have to provide reasonable accommodations, of course within means.  So, we know all that, so how can we actually be specific to the area we need to provide enforcement and compliance, instead of the generalities, related to the new work environment?

MS. HILL:  That's a great question, thank you.  One of the things regarding technology, both, the technology that we use to remote work and the technology that we now all use when we come into the office, is to get the word out there that, by the way, you, employer, will be responsible for the inaccessibility of your vendors' technology.  So, it's a really good idea to ask them about it and insist, and, as the customers, they have a really strong incentive to respond to you.

And, if you're not asking, then you are walking with blinders on, into potential problems.  Including, that you can't hire the people that you want to hire, that are the most experienced and most qualified to do these jobs, because you can't accommodate them.  And, that you will be -- it'll be hard to accommodate people once you have this inaccessible technology in your space.  So, I think those messages are really important, in addition to actual enforcement.

In terms of remote work, I think what's happening now is that employers are thinking, well, we're all coming back and I didn't allow people to remote work before, and so I'm not going to allow them to remote work anymore.  And, that, legally, has changed now, so you may have thought that it would be an undue hardship to allow people to remote work before, that you couldn't do some of these jobs remotely.

We now know that that is not true, that you can do the jobs, and so the legal analysis has changed because the facts have changed.  So, people need to think about remote work now differently than they used to, and it's not that they have to let everyone do it, but they have to let the people who need to work remotely because of a disability, do it in ways that they may not have, or may have had defenses to, in the past.

COMMISSIONER SONDERLING:  Thank you, all.

CHAIR BURROWS:  Thank you, I now recognize Commissioner Lucas, for eight minutes.

COMMISSIONER LUCAS:  Thank you.  I wanted to follow up on the remote work question, but come at it from a different angle.  I certainly can see that the pluses and minuses of it, but I want to make sure that we don't lose sight of some of the most vulnerable workers who do not have the privilege of remote work, as well as the large number of small businesses, medium businesses, and just varying types of frontline businesses, that remote work has never been an option for.

So, this question is for Ms. Dickens, if you could expand on that a little bit, in fact, I think SHRM put something out, noting that 60 percent of its respondents in one study, which represented 50 percent, of the U.S. workplace, rarely or never allowed employees to work remotely, even during and after the pandemic, based on business practicalities.  Could you talk a little bit more about that?

MS. DICKENS:  Yes, thank you, Commissioner.  And so, it is something we try to talk more about, there's been so much discussion about the ability to work remote but, as you all know, more than half of our workforce cannot do their jobs remotely, and most of them are in jobs that help us in our everyday daily lives.

And, we're doing more research and focus on them because mental health is so crucial, these people have seen so much during the pandemic, they've been often overworked because we have people who are leaving jobs, for either, health reasons or otherwise.  And so, we do need to talk about their ability to be able to have paid leave, for example, and other and other forms of leave that will help them -- have access to telehealth resources and things of that nature.

These are a group of people that are just silently working and doing their jobs, often lower wage, as you intimated.  And, because of so much remote work, struggling because they're located in areas where they're providing services that were dependent upon people being in the offices.

So, they're getting hit from all directions, in terms of not being able to make the money that they were making previously, dealing with mental health issues as they experience, personally and professionally, the impact of COVID, and then also not having some of the benefits that some of our white-collar workers, or those who can work from home, do have.

COMMISSIONER LUCAS:  What I'm hearing you say, in part is, A, we need to make sure we don't forget about those workers, and then, B, we also have to keep in mind that there might be other accommodations that those workers might benefit from, even if remote work might not be an option, is that fair?

MS. DICKENS:  Absolutely, thank you.

COMMISSIONER LUCAS:  I also wanted to ask you some questions about skills-based hiring, you know -- and this is following up on some questions I had to the prior panel -- I am a big proponent of skills-based hiring, and I have deep concerns about college degree requirements that are unnecessary.  But, I'm also cognizant of the fact that, to some degree, moves towards college degree requirements, over-credentialing, et cetera, was the result of heavy amounts of litigation around testing, disparate impact claims based on testing.

So, how do we balance that, the benefits of moving towards skill-based hiring, but also the impact of potential litigation related to testing-based disparate impact claims?

MS. DICKENS:  So, thank you.  So, you're right, we are hearing that we have more organizations that are using a diverse set of ways to bring people into their organization, so testing is just one aspect of it.  Because we're trying to get people in the workplace more quickly now than before, because of our talent issues, you're seeing more of a leaning into testing as well.

I think they're spending more time working with vendors, and trying to identify beforehand, whether there is some unintentional bias as a result of this.  But, if I can give you just a bit of data, as we've seen 82 percent of organizations that require work samples or work simulation tests, do so for applicants identified for further consideration.

So, that means, that's further -- so that means, initially when you come in, you're getting the individuals who, we're not using the testing to get them in the front door, it's once we've had that initial discussion, now we're using some additional testing.  So, I think that helps a bit with the bias issues that we're seeing and some of the other issues we're seeing in that.

I think, it's continuously, we've also seen that the quality of hires are improving when we are using this kind of diverse format of some testing, as well as our normal daily recruitment skills, too.  And, for those who are doing it, they do plan to expand, one-in-four want to expand their use of these assessments within the next five years.

So, what we're hearing and seeing from the vendors is that, there's more accountability on their behalf to make sure that they are testing and piloting initiatives so that they're not having a negative impact on the individuals who are trying to attain jobs.

COMMISSIONER LUCAS:  Do you find that adopting a skills-based test, or other testing, may help avoid some of the conscious, or unconscious, biases that you might get in a completely unstructured sort of personality fit-based interview?

MS. DICKENS:  We are, and why we can say that, also, is that we're seeing so many different types of assessments and testing being

used, based on that particular workplace.  And, it's really looking at the skills that are needed to do the job and not the individual per se.

And, even if we talk about remote work and our individuals with disabilities, if you think about that, many of them have those skills, now they can do that from home, they tested well and we know they have the skills.  And, that disability is not a hindrance because they can do it remotely, and provide the skills that that employer needs.  So, it's helping people on all sides to work.

COMMISSIONER LUCAS:  Thank you.  Mr. Fortney, I wanted to ask you a question, you talked about the security of compensation data and concerns about it, when we share it or provide it to other agencies.  In terms of our work-sharing and data-sharing agreements, is it your opinion that we should contractually impose some level of security or confidentiality that's equivalent to Title VII, when we pass compensation data, or other sensitive data, to other entities?

MR. FORTNEY:  The short answer is yes, you certainly have the authority to do that, there's no reason not to.  And, if you think about it from our clients' perspective, our members perspective, employers -- it's not voluntary, the federal government compels the collection.

The collecting agency is done, as I indicated, an excellent job and the data collection initially is protected with criminal sanctions if it's disclosed, great, that part works well -- it's what happens thereafter.  And so, respectfully, I would recommend that the Commission, as the primary custodian, then acts accordingly.

And, there's no reason to think that it should have a, you know -- effectively, it creates sort of a loophole to the protections that are very solid in place for the initial data collection, and maintenance by the EEOC.  So, yes.

COMMISSIONER LUCAS:  I had another question for you.  You mentioned the vendors are the wild west.

MR. FORTNEY:  Some of them. 

COMMISSIONER LUCAS:  Some of them.

MR. FORTNEY:  Yes.

COMMISSIONER LUCAS:  And that some of that is from a perceived lack of liability for vendors.  So I had a two-part question.  For some of these AI vendors, would you say that they are, by perhaps administering a selection test or other data screening tool, procuring employees opportunities for work?  Are they working sort of like an employment placement agency?

Perhaps I'm misunderstanding something.

MR. FORTNEY:  That's an interesting question.  I mean, I think -- what I was trying to communicate was that the designers of some of these products, some of them are really just focused on the technology and all the ways in which the data can be collected, scrubbed, collected.  The analytics, the dashboards they can create without really understanding what the impact is.  And then allowing their customer to sort of plug in whatever they want.

Much as you might if you bought a super movie package from HBO or something.  I mean, they're not really concerned about how it's consumed or what the end-user is doing.  They just want to offer options.  And that's not the landscape in which employers of course, are consuming those materials.

COMMISSIONER LUCAS:  I think I'm out of time, so we'll have to continue the conversation.  Thank you to all of our witnesses.

MR. FORTNEY:  Of course, thank you

CHAIR BURROWS:  Thank you.  I will now recognize myself for eight minutes.  I'll start with Ms. Hill.

The CDC has reported that one-in-five Americans that had COVID-19 now have what is considered long-COVID.  And it's clear and becoming clearer that those individuals who contract COVID, or at least for some of them, it manifests in ways that really do constitute a disability.  And so I'd love if you could talk to us a bit about some of the challenges that workers with COVID-related disabilities f ace in the workplace.

MS. HILL:  Thank you for that question.  Yes.  Long-COVID is posing very difficult issues for the people who experience it.  Partly because it's very difficult to get it diagnosed appropriately and it's very difficult to treat it.

We are still exploring all of those things and therefore they have difficulty reporting to their employers what accommodations they need and why.  And without a diagnosis, employers are -- maybe rightly -- skeptical of whether you actually have a disability.

So currently people are trapped in this place where they often can't even really get a diagnosis, but they have a set of symptoms that they need accommodations for, and they want to keep working.

In addition, they are facing a set of symptoms that are not the same on every day, or even all day every day.  And these are difficult to accommodate both for the individual and for the employer.  So that interactive process becomes incredibly important and really needs to be emphasized here.  Because the people often can keep doing the job, but they need to do it at different times than the regular all nine to five times.  They need often to be able to do it in different locations.  Locations, sometimes their homes.  But sometimes other locations that don't irritate the long-COVID symptoms.  There are a variety of different ways to accommodate.  And looking at the list of frequent accommodations for disabilities won't necessarily help you when you have one that comes and goes, that is worse at sometimes than others, and that you don't always know what the triggers are.

But it's really important that both the employees and the employers recognize that this is really a disability, and we really are required and want to accommodate it to keep this person working.

In addition -- but this is being hurt tremendously by the frequent attitude I'm encountering that COVID is now endemic and is like a cold.  I have COVID right now.  It's not that much like a cold.  But treating it as if it were just like a cold and we have no obligation to accommodate it is an attitudinal barrier that people with long-COVID are really running up against and that can't be allowed to stand under the Americans with Disabilities Act.

CHAIR BURROWS:  Thank you.  That's very helpful.  Sticking somewhat with the issue of disabilities, but sort of bringing it into the AI context, one of the things that I have been thinking quite a bit about and would be interested to hear how we can perhaps reach out to employers about.  So I guess I would direct this to David Fortney and to Emily Dickens.

With respect to the interactive process, when you are in AI context, what is the -- are there issues there where it might be helpful?  And I'm focused on this because -- helpful for us to speak to it more directly -- and I'm focused on this because of this interplay.  Most employers can't design these themselves.  Some can, right, but they're buying them from vendors. 

And so you have a vendor who's familiar with how it works and the employer who's actually doing the hiring.  And what happens if someone needs an accommodation in order to take that test?  Which may be perfectly fine, or whatever the selection device is.

But connecting with that, you may have an employer who's wonderful in accommodations generally, in fact I've actually encountered this, but doesn't necessarily have that connection with the vendor who's actually maybe implementing or knows how it works where accommodation might come up.

So are there things that we should be doing in that area?  And if there are any others with respect to our guidance and AI that you think would be helpful?  You've mentioned a number, so that's plenty.  But I'm interested in that in particular if you want to address it.

MR. FORTNEY:  Okay.  I'll kick off on this one.  Sure.  Happy to.

So I think at this stage there's a significant educational process.  I think that employers understanding, again, they are a consumer just as most of us have no idea how our telephone operates except that it's great and it helps us.  That's really how most employers are with respect to AI.

It's an extraordinarily helpful tool.  They use it.  It may have other capacities to address accommodations as you're suggesting.  So I think we need to create an environment where people are sufficiently curious.  I mean, I don't think there's an AI tool helpdesk, but that is kind of the concept of what we should try to get to.  So I would suggest at least initially it could be a raising of awareness, and I think that can be done.  I think the Commission is particularly well-suited for that.

And it's both not only on employers but on, in your example, applicants or others because I'm not sure there's awareness there that they -- well this is the only way I can take this type of pre-employment, whatever the step is.  I have a bit of a problem, typically filling out or completing a form in this way, is there some option.

That could be -- I think that could be helpful.  I'm sure that I've got more than that to start with because I want to start with a step before I get all the way down the trail.

CHAIR BURROWS:  Understood.  Thank you.

Ms. Dickens?

MS. DICKENS:  And here's what I'll add.  It is extremely important that you do engage.  There are states that are passing laws that hold the employer, which nine times out of ten on behalf of the employer is the HR professional, accountable for discrimination that results as a result of using that particular type of AI, and it's --

And you know how laws across state happen, right -- this body thinks it's a great law.  It's going to show up in another state, and I think you've got to get people more -- you've got to get vendors understanding that there is a responsibility on their part to think about those issues.

And we understand that they've got a skill set that helps them do this great thing, but they also have got to think about the soft skills and those things that they've got to be more intuitive about as they're creating these tools.       And then ways to protect the employers that are just trying to do the right thing.  They're trying to meet a need and they're trying to serve more applicants.  They're trying to gauge and train their employees; whatever it is they're using the tool for, and it just doesn't seem right for them to be penalized for that because someone else isn't thinking about those important issues.

CHAIR BURROWS:  Okay.  And Ms. Correia, we've been also focused on initiative and combating retaliation.  And I would love your thoughts on how we can get that message out particularly, and maybe partner with organizations like yours for those most vulnerable workers.  For those folks who, you know, how do we get that out to the employees who may be just going day-to-day and really are terrified to report to us?

MS. CORREIA:  I think it's a matter of education and ensuring that employees are informed of what their rights are and to ensure that there are no barriers to their ability to collect information to support their claims.  And that when they encounter resistance to those efforts to bring those claims at work from their employer, that that is retaliation and that is not okay.

And I think that education component is very important.  And if employers are taking steps that interfere with employee's abilities, or worker's abilities to bring their claims or to marshal witness to support them, or to have access to the tools that the employer is using, and they complain about that. 

Those tools are, in my view, are no different from the mechanical tools that employers provide for workers to do their mechanical jobs.  And no one would want an employer to get the message that giving a mechanical tool or an equipment to a worker that is unsafe or that is actually going to harm them or is not going to accomplish the job in a way that hurts the worker.  No one would say that the employer should be exempt from responsibility for that.

So in the same way, if someone is trying to use AI as a tool in the workplace, and employees complain about the problems that they have using that tool, the employer needs to know that they need to make sure that it's an effective tool and that if they are using it unfairly, there are going to be consequences for that.

CHAIR BURROWS:  I think you all.  It has been an absolute pleasure to engage in this conversation with you.  And while I wish we had longer, it has been informative in the time that we had and I am so grateful.

So with that, we will convene this panel and we will go to a lunch break of one hour.  12:54 is currently the time, so I would say that we will be back at 1:54.  Thanks so much.

(Whereupon, the above-entitled matter went off the record at 12:54 p.m. and resumed at 1:54 p.m.)

CHAIR BURROWS:  The meeting will now resume.  Welcome back to my fellow Commissioners and members of the public who are joining us in person and virtually today.  And a very special welcome to our third panel of distinguished speakers for participating in today's listening session and for sharing your insights with us here today.

With that, I am very pleased to be able to introduce the speakers on our final panel in the order that they will be speaking today.

So we have first, Manjusha Kulkarni, excuse me, executive director of AAPI Equity Alliance which serves and represents the 1.5 million Asian Americans and Pacific Islanders in Los Angeles County. 

In March of 2020, Ms. Kulkarni co-founded Stop AAPI Hate, the nation's leading aggregator of COVID-19 related hate incidents against AAH -- AA, Native Hawaiian, and Pacific Islander persons.

I would also next like to introduce Nick Reaves, welcome.  Counsel for the Becket Fund for Religious Liberty.  A non-profit, public interest legal and education institute with a mission to protect the free expression of all faiths.  Mr. Reaves' practice focuses on First Amendments and appellate litigation.  Welcome.

And I have next, Chris Williams who I believe is also joining us.   Yes, excellent.  Hello.  Welcome.  Director of litigation for our National Legal Advocacy Network.  A non-profit organization that promotes greater equity in our economy and society through organizing, empowering marginalized people, and challenging entrenched forms of discrimination.

Prior to practicing law, Mr. Williams spent over a decade as a union organizer in the Chicago area.  And working with labor unions and was a founding member of a Chicago-based worker center.  So thank you for being here as well.

And last but certainly not least, we have Holly Biglow, who I believe is also joining us remotely.  The government affairs director on the financial security team at AARP where she covers workforce age discrimination, paid leave, and unemployment issues.

Before joining AARP, Ms. Biglow was a lobbyist at the American Federation of State, County, and Municipal Employees where she represented the interest of public sector employees.

And so I think you all again for being here today and would invite you now to give five minutes of opening testimony.  And I'll begin with Ms. Kulkarni who is joining us remotely.

MS. KULKARNI:  Good morning, good afternoon.  Again, my name is Manjusha Kulkarni and I'm executive director of AAPI Equity Alliance and co-founder of Stop AAPI Hate.  I want to thank the Equal Opportunity -- Equal Employment Opportunity Commission, and Chair Burrows, Vice-Chair Samuels, Commissioner's Dhillon, Sonderling and Lucas for the opportunity to participate in the listening session today.

On March 19, 2020, AAPI Equity Alliance, in conjunction with Chinese for Affirmative Action in San Francisco State Universities Asian-American Studies department launched Stop AAPI Hate because of what we saw as an emerging pattern of hate incidents against Asian Americans and Pacific Islanders in the United States.

Between March 2020 and March 2022, we have received over 11,000 self-reported incidents of bias and discrimination from all 50 states, making Stop AAPI Hate the leading aggregator of anti-Asian hate incidents.

From our analysis of the 11,000 incidents, the following trends have emerged.  Sixty-three percent involve verbal harassment.  Sixteen percent involve physical assault.  Twelve percent, civil rights violations including refusal of service, discrimination in housing and the workplace.

The vast majority of these incidents are not crimes, and therefore not hate crimes despite misperceptions sometimes perpetuated by mainstream media.  Our data indicates that especially vulnerable populations including women, youth, and seniors have reported experiencing anti-hate incidents at significant rates.

Women have reported 62 percent of these incidents.  Asian-Americans across ethnicities are experiencing the heightened racism today and while Chinese Americans have often been the explicit target of perpetrators, they make up only 43 percent of individuals who have reported at Stop AAPI Hate.  The other 57 percent identify as other east-Asians as well as southeast-Asian, south-Asian, and Pacific Islander.

Forty-nine percent take place in public streets, parks, and are the primary site of discrimination.  Twenty-seven percent specifically have occurred at businesses.  And more importantly for our conversation today, six percent involve incidents in the workplace.

The incidents we have received have fallen into three categories: Employees experiencing discrimination at the hands of employers or supervisors and managers; number two, employees experiencing racism at the hands of co-workers; and number three, employees experiencing incidents in some way perpetrated by customers or patients.

I'm going to share with you examples of the three categories.  Apologies for the language.  These are direct quotes by respondents.

Of the first category, "A project manager from a wind turbine company belittled me and made racist comments to me, to my face in front of all my co-workers during orientation.  When he was looking through a list of names he stopped at my name and said, 'Ching chong ling long' and laughed."  This was reported by a Cambodian American in Texas.

Of the second, "I'm half Korean.  I worked at a Korean barbeque restaurant as a server and another server made racist impressions of Asian guests saying, 'I no understand you.  You no speak Engrish.'  He would say this out load in the dining area and kitchen."  This was reported by a Korean American also in Texas.

Of the third category, "A patient called me an explicit name and told me not to bring disease with me in his in-patient room that I was assigned to assist him with as a medical personnel."  This was reported by a Vietnamese American woman in Minnesota.

In addition to sharing our data, we at Stop AAPI Hate have conducted policy advocacy with lawmakers and government officials to advance civil rights of our community members.  In that vein, we've worked closely with staff of the US Attorney's office, California Department of Fair Employment and Housing, and the California US Department of Justice.

AAPI community members have reported that they find it difficult to navigate legal and administrative processes to obtain redress for the discrimination they have experienced.  They do not necessarily understand their rights and the avenues afforded by federal, state, or local government agencies, nor do they understand law enforcement beyond policing. 

Often these processes are complicated and require direct legal assistance or representation, and also a strong command of the English language.  Given that so many are limited English proficient, and the fact that few pieces of information are translated into Asian languages by agencies, employees rarely report these.

We have been working to change that and look forward to hearing about changes made within EEOC to afford improved opportunities in reporting.  For reporting and redrafts.  Thank you.

CHAIR BURROWS:  Thank you very much.

And we'll go now to Mr. Reaves.

MR. REAVES:  Chair Burrows and honorable Commissioners thank you so much for inviting me here today to testify about the importance of preventing religious discrimination and why this should be a priority for the EEOC going forwards.

At the Becket Fund for Religious Liberty, we've represented numerous individuals from diverse religious backgrounds.  Individuals like Mitche Dalberiste, a black Seventh Day Adventist who was denied a religious accommodation because of his faith.  Or Kawal Tagore, a Sikh woman who was fired from her job at the IRS for refusing to abandon her kirpan.

Our experience has shown that there are often straightforward and sensible ways for employers to accommodate to religious employees in the workplace.  And finding and promoting these consensus solutions should be a priority, especially as our society becomes more religiously diverse.

So what can the EEOC in particular do?  First, the EEOC can educate employees about their rights.  In our experience few know for example, that employers have an affirmative duty to provide religious accommodations to employers under Title VII.  Without this knowledge, and employee doesn't know to speak up when their rights aren't being respected.

There's also a misconception common among religious minorities that the EEOC doesn't actually protect employees from religious discrimination.  The EEOC could counter this misperception by better publicizing both its relevant guidance and its enforcement actions in eradicating religious discrimination.

Second, the EEOC should pay special attention to religious discrimination in the hiring process.  At Becket, we've encountered many individuals afraid to ask for an accommodation during the hiring process for fear that it will cost them the job.  Through both education and enforcement, the EEOC can help protect religious employees fearful of discrimination at this sensitive juncture.

And third, the EEOC should continue to advocate in favor of a common sense and true to the text interpretation of the term "undue-hardship" in Title VII.  The Supreme Court's decision in Transworld Airlines vs. Hardison all but gutted the requirement that employers meaningfully accommodate religious employees in the workplace.  Hardison allows even the nation's largest employers to point to small costs or minimal administrative burdens to deny a religion accommodation.

For example, in one of Becket's cases, Patterson vs. Walgreens, Mr. Darryl Patterson, a black Seventh Day Adventist was fired by Walgreens because he couldn't work on his Sabbath.  Walgreens won the case because two federal courts concluded under Hardison that 135 billion dollar company could fire Mr. Patterson rather than find a way to let him keep his job while also observing his Sabbath.

The EEOC supported Mr. Patterson at the Supreme Court and argued that Hardison was incorrect.  The EEOC should prioritize reversing this harmful precedent and right now there is an opportunity to do just that in the Groff vs. DeJoy case, a Sabbath accommodation case which may soon be heading to the Supreme Court.

In our experience at Becket, accommodating religious employees can mutually benefit both the employer and the employee.  And when conflicts do arise, the EEOC can help to encourage practical solutions that allow religious employees to continue to contribute as productive employees who bring a diversity of viewpoints, identities, and experiences to their place of work.

As Commissioners, you have a unique opportunity to ensure that employees can work in a place that respects both their faith and their identity.  Thank you for allowing me to be part of this conversation today.  And I look forward to your questions.

CHAIR BURROWS:  Thank you.  We'll go now to Mr. Williams.

MR. WILLIAMS:  Good afternoon.  First, I truly want to thank you for including us in this discussion about the EEOC's strategic enforcement priorities.

I want to focus my comments on the temp staffing industry.  I know my colleague from NELP touched on it from the 5000 view, but I want to dig deep because I think this is a particularly problematic industry.

My comments on the staffing industry also reflect the work of not only National Legal Advocacy Network, but of Temp Worker Justice, and innumerable other community-based worker centers who encounter workers being exploited in the temp industry on a daily basis.

First, I want to commend the EEOC on making temp staffing a priority area in the past and calling the Commission to renew and enhance that commitment in the new strategic enforcement priorities.  Of course, there's discrimination in all industries, so why focus on the special focus on staffing?

First, staffing cuts across almost all industries.  It's hard to think of any industry that is not using temporary staffing workers. 

Second, that staffing has grown incredibly rapidly.  It's impact on work opportunities cannot be ignored.

The American Staffing Association itself boasted over 16 million assignments are made each year by staffing agencies.  It's too large to ignore.

Third, the "temp" in temp staffing is more and more becoming a misnomer.  Many of the jobs being filled are permanent long-term jobs, they're just being filled by "temporary workers," workers without any long-term commitment.

Fourth, the structure of the staffing/client/employer relationship fosters systemic discrimination.  I've been struck by the extent to which much of the systemic discrimination is driven by the client/employer's discriminatory requests.  So if you'll indulge me, I'd like to just read a short excerpt from testimony in two cases that I've been involved in.

The first, "Just send me white guys under 40."  It's pretty straightforward.  This is a quote from testimony of a staffing agency operator in Nashville, Tennessee, about a request from a warehouse manager.  "When she told the company, 'I can't do that, it would be illegal' she lost the contract."  And another staffing agency picked up those assignments, presumably sending white guys under 40.

In another case the staffing agents operator in Chicago testified, "The plant manager told me he wanted young good-looking Hispanic females, and that he would take his business elsewhere if the agency didn't provide them."  Again, threats made by the client employer if the agency did not meet his specific, if not unlawful, request.

I think these quotes highlight the amount of leverage that companies that use staffing agencies have over them.  These two cases were successful, but only because they were high-up individual whistle-blower in the staffing agencies who were willing to pull back the curtain on the illegal practices.  This unfortunately is the exception, not the rule.

I'd like to offer what I believe are some of the key reasons that staffing is uniquely problematic.  First, the lack of transparency.  I'm not talking about transparency in motivation for why someone was fired or why they were not hired.  That exists everywhere.  But I'm talking about the transparency of what the jobs are themselves.

Typically, staffing agencies will place workers at dozens of companies in hundreds of jobs, and the workers often even know what those jobs are.  So not only do they not know what jobs they're applying for, they don't know what jobs they're not being considered for if there's a discriminatory request. And if somebody fits in a category that somebody doesn't want, the staffing agency's not even going to consider them for that job. 

If someone with a visible disability comes in, they can probably forget working at all.  They won't know if they could have performed the essential functions at any of the many jobs available with a reasonable accommodation because they don't know what the jobs are.  And of course, once someone with a disability gets one assignment, the staffing agency knows about that disability and all of the pre-job limitations on questions about disability are no longer relevant.

There's even less transparency about the jobs now with the post-COVID, because of the online applying -- application process and with the advent of app-based staffing, which I think we're going to see coming pretty rapidly. 

The second thing is that these are contingent jobs for contingent workers.  There is no expectation of ongoing employment unlike direct-hire job where you assume you'll be here tomorrow, there is no such thing.  And as a result, there's not really a formal hiring and firing decisions.  There's either work or there's not work.  And so there's often not a specific decision to challenge, just no work today.

I'd like to discuss a couple of recommendations we have.  First of all, it's time for the exemption for staffing agencies from the EEO-1 to end.  There should be more documentation, not less from staffing agencies.  And frankly, it should expand to applicants for jobs, not just those who are assigned.  That's where the discrimination really comes out.

Second, the EEOC should rely on match pair testing.  Even if the EEOC itself can't do that, we can -- organizations like ours are working to uncover discrimination through match pair testing.  I shared a study with you called Opening the Door, done in Chicago which shows over two-thirds of the agencies tested were engaged in some kind of discrimination.  This is the way to get behind the curtain.

Third, I would create -- suggest the creation of a hotline for whistleblowers.  I've been surprised that whistleblowers are really the ones that dislike these discriminatory requests the most.  It makes it harder to do their job, and frankly they often think it's unfair.  One of the most inspiring things I've seen is how the Latinx recruiters are the ones who come out to testify about the race discrimination against African American applicants.  And that's the only way we've been able to succeed.

Joint employer liability is critical.  I know you do it but continue that.  I also suggest the EEOC consider staffing as a discrimination in recruitment.  When a staffing agency is located outside -- when a company hires people from outside its own community and buses them in to work, and the staffing agencies are citing themselves, locating themselves in different communities.  I think often that is a form of discrimination recruitment.

We would ask that you revisit guidance on accommodations with people with disability in the staffing context.  And we've had great success working with EEOC in the Chicago area with that office.  We'd love to -- we see these problems nationwide; we'd love to work with EEOC in a similar way across the country.

Apologize for going over.

CHAIR BURROWS:  Thank you very much.  I will now recognize Ms. Biglow for a period of five minutes.

MS. BIGLOW:  Good afternoon, Chair Burrows, Vice Chair Samuels, Commissioners Dhillon, Sonderling and Lucas.  I am Holly Biglow, a government affairs director on the financial security team at AARP.

On behalf of our 38 million members and all older Americans nationwide, AARP thanks you for inviting us to testify today to share information on hiring practices that deny job opportunities to older workers.  AARP believes that any type of discrimination is unacceptable.       Too often, when discussing discrimination in the workforce age is not included.  But ageism in the labor force is still prevalent and must be addressed.

Research released by AARP in May 2021, found that 78 percent of older workers said they have seen or experienced age discrimination in the workplace, the highest level since AARP began tracking this question in 2003.  In addition, a recent AARP study shows that nearly two out of three women, age 50 plus, experience age discrimination regularly.

While the labor market has improved overall, older job seekers still experience long-term unemployment at a higher rate than their younger counterparts.  Based on the August jobs report, the percentage of job seekers ages 55 and older who are long-term unemployed was 25 percent compared to just over 18 percent of job seekers ages 16 to 54.  So we know that older job seekers are having a hard time re-entering the workforce even as employment overall shows significant growth.

Age discrimination in hiring is a persistent and widespread problem that demands much more of the EEOC's attention.  We appreciate that the set priority on hiring discrimination      includes age discriminatory practices.  However, the EEOC has brought few age discrimination in hiring lawsuits, so we urge the EEOC to increase its litigation and enforcement efforts to attack discriminatory hiring practices that deny job opportunities to older workers.

AARP is aware that some online job search sites, applications, and social media platforms continue to screen out older applicants and/or to allow employers to do so.  For example, some require applicants to include dates of birth or graduation dates in fields that cannot be bypassed.  These practices facilitate discrimination and deter older individuals from applying.

Some sites have taken this type of age-related inquiry a step further.  Instead of asking for dates of graduation or dates of prior employment, they use drop down menus that only go back to a certain year, say 1980, therefore excluding older applicants.

We are aware that the EEOC has launched an artificial intelligence and algorithmic fairness initiative and that the EEOC recently filed a lawsuit alleging that three companies, collectively called iTutorGroup program their online recruitment software to automatically reject older applicants because of their age. 

We applaud this work but urge the Commission to increase the resources needed to effectively tackle these complicated issues by hiring staff with expertise in AI and assisting investigators in identifying discriminatory AI practices.

Finally, we call on the EEOC to examine the causes of the continuing decline in the number of discrimination charges filed with the Commission during times when workplaces and our society see evidence of pervasive ageism, racism, sexism, and xenophobia.  While more older workers reported experiencing age discrimination in AARP's recent survey than ever before, only three percent of those, on average, contacted the EEOC.  Most said they didn't take any action because they felt it wouldn't make a difference.  The fact that most charges are administratively dismissed or quickly closed reinforces the perception that filing a charge with the EEOC isn't worth the effort.

The Commission's cumbersome charge system may also be one of the causes of the decline in charge filings.  It imposes time-consuming hurdles by requiring the submission of an inquiry and an interview before an individual can file a charge.  AARP urges the Commission to allow attorneys and individuals to file charges online without these prerequisite steps.  Online filing has become commonplace and routine.

Again, thank you for allowing AARP to testify today.  I'm happy to answer any questions.

CHAIR BURROWS:  Thank you.  All right.  So we will go now to the Vice Chair to be recognized for eight minutes of questions.

VICE CHAIR SAMUELS:  Well, thank you Chair Burrows and thank you to all of our witnesses for that invaluable testimony.  This is very insightful as we think about our priorities for the next five years.

I have a variety of questions which I undoubtedly won't get to, so this should be the first installment of a continuing dialog.  But let me start with Ms. Kulkarni if I could.

You talk about the extraordinary increase of anti-AAPI harassment, assaults, violence, hate.  And my sense had been that some significant component of that was related to the pandemic and to the unfortunate perception that it originated in China and was being carried by AAPI communities.

So I guess my question is, given that the pandemic is receding are you seeing any signs for hope that AAPI hate is diminishing or are there still COVID-related incidents that we should take account of as part of our work to address the impact of the pandemic?

MS. KULKARNI:  Thank you for that question, Vice Chair.  Yes, you are right that the origins of much of this discrimination was related to COVID-19 and perceptions about its origins and whether members of our community were specifically ones that transmitted the disease to their fellow Americans.

Unfortunately this appears, based on our data and our analysis over two years, to be like a genie being let out of a bottle which is, it's hard to put it back in, right?  And so even though we have seen recession in terms of the proliferation of the disease and the spread of the virus, we continue to get incident reports from all across the country. 

And so I think what has happened essentially, is individuals learned either through political leaders that they listened and followed, from mainstream media, and you know, the way that the reporting was done.  The way that you know, photos of the disease always included pictures of Asian-Americans that now that perception is really fully ensconced in our society and that individuals in our community continue to experience discrimination even though the disease itself has in many ways receded.

VICE CHAIR SAMUELS:  Well thank you for sharing that.  It's discouraging to hear but absolutely information that we need to have. 

Let me turn to Mr. Reaves.  The EEOC has long taken the position that a failure to accommodate an employee's religious beliefs is in and of itself enough of an adverse action to trigger liability under Title VII.  But there are courts that have disagreed and say you need to have been disciplined or fired as a result of your failure to forego your right to an accommodation.

Does Becket have a view on that and how extensive do you think this court trend is to say that you need some ultimate adverse action rather than just challenging the denial of an accommodation?

MR. REAVES:  That is a great question and that is something that we have seen come up on several occasions.  I think I certainly agree with the EEOC's position that failure to accommodate is itself a problem that should be resolved and that can be resolved.

In terms of a court trend, I think it's hard to say.  I don't think we've seen enough cases to know for sure kind of what direction it's going but I think that's certainly something that the EEOC could continue to pursue, not only through guidance but through amicus briefs and through other efforts in court to make that view kind of better known in the judiciary as well.

VICE CHAIR SAMUELS:  And I assume your view of this would extend to giving a cause of action even if someone agrees to forego the accommodation, much like sexual harassment.  If someone submits to sexual advances that doesn't preclude them from filing a harassment complaint.  That someone sucks-up, not getting an accommodation, and comes to work on his Sabbath, should not preclude that person from filing a failure to accommodate claim?

MR. REAVES:  Yes, I think that's right.  I think we have seen instances where someone is forced to choose between their job and their faith.  And that's a very difficult decision to make.  And sometimes, you know, sometimes people feel like they are compelled to shave their beard or to give up on another religious tenet because they need to feed their family, and I think that's an unfortunate situation to put people in.

But just because they haven't been perfectly consistent in the past, consistent in following their religious beliefs, that shouldn't prevent them from getting a remedy in the future.

VICE CHAIR SAMUELS:  Thanks, that's helpful.  Confirms my own views, so particularly helpful.

Let me turn to Ms. Biglow.  I was going to ask you a question about the reasons that we've seen a decline in the number of age discrimination charges that have been filed despite the results of your survey which are pretty shocking about the extent of age discrimination in the workplace, but I think you've given us some valuable insight to that.  If you have anything to add, please feel free.

But my question is really about inter-sectional discrimination that older workers experience and whether you have seen an increase in, or raise in which age discrimination intersects with race, or sex, or national origin, or disability discrimination in ways that we should be alert to going forward.

MS. BIGLOW:  Thank you, Vice Chair.  I can look further into this.  I mean, we know that age discrimination occurs no matter your gender, your race, your religion, et cetera.  It happens.  I shared a statistic about women that experience age discrimination and we definitely have some information regarding race, et cetera.  So I can share more information on that.

VICE CHAIR SAMUELS:  That would be helpful to know.  Thank you, I appreciate it.  And let me end up with Mr. Williams in my 33 seconds to go.

I suspect that employees of temporary agency staffing firms are confused about who might be held liable in circumstances where they're subject to discrimination.  How can we do a better job of letting both workers and staffing firms and ultimate employers know who might be responsible for addressing discrimination to which they're subject?

MR. WILLIAMS:  Yeah.  In my experience they are confused and it's not by accident.  In fact, the staffing agencies and the client/employers play a role in that. 

Very often staffing agencies will say, you can't make a complaint to the client company that, you know, that you're being sexually harassed, or you're not being accommodated.  You've got to come back here, and we'll deal with it.  And the way that they deal with it is then they say, well we're your employer.  We're not going to send you back there, we'll send you somewhere else. 

So I think bringing some enforcement actions around that, and I know there's been some effort to make clear that both are joint-employers and therefore employees must be able to complain to both.  I think that's really important in just providing more education on the fact that these are joint employers, that you can have more than one employer.

VICE CHAIR SAMUELS:  Thank you all so much.

CHAIR BURROWS:  So we recognize now, Commissioner Dhillon for eight minutes.

COMMISSIONER DHILLON:  Thank you.  And thank you for the witnesses for appearing here today, both live and virtually.

Mr. Reaves, I was pleased that you mentioned the Patterson vs. Walgreens matter in your opening remarks.  And as you noted, in 2019 the then constituted Commission voted unanimously to file a brief with the Department of Justice urging the court to grant cert because it was the view of the Commission and the Department of Justice that the time had come for the court to revisit its decision in TWA vs. Hardison. 

And I think that among the many, many lessons of the pandemic, certainly the vaccine religious exemption issues have demonstrated that that standard really does need to have another look.  And I was also pleased that you mentioned the Groff vs. DeJoy case which I believe there is a cert petition that has been filed there. 

That involves a case where post office worker was denied an accommodation to observe the Sunday Sabbath.  I think regrettably, the Department of Justice has defended the actions of the employer below.  So I think it is unlikely this time that the Department of Justice and the EEOC will be able to -- what I would hope would be the view, again, that the time has come.

But I'd like you to expand on the reasons why you and the Becket Fund believe that it is important at this time for the court to re-examine its decision in TWA vs. Hardison.

MR. REAVES:  Thank you, Commissioner.  And I agree with a lot of what you've already said.  I guess just to kind of make two points.  One on the legal side and one on the more practical side.           You know, legally Hardison is hardly defensible.  Title VII requires employers to accommodate religious employees absent an undue hardship.  That's the language in the statute.  Hardison redefined "undue hardship" to mean anything more than a de minimis, or minimal burden.

That's inconsistent with the plain text of the statute.  That's clearly inconsistent with congressional intent and it's inconsistent with how Congress and the courts have interpreted the ADA which has the same undue hardship language.  And actually there, undue hardship is defined as an action requiring significant difficulty or expense.  Very different from the standard use in religious accommodation cases.

So on the more practical side, Becket has represented numerous clients who have faced employment -- had employment actions taken against them because they weren't accommodated, or they lost their job for lack of an accommodation.  And practically speaking, Hardison allows employers to deny even very simple accommodations like voluntary swap-shifts or kind of, changing around a schedule to allow someone not to work at a certain time or to take a short prayer break of that's required by their faith.

And it's unfortunately most harmful for low-wage workers.  Because those are often the type of jobs that are shift work, where you can't take a few minutes or rearrange your schedule in the same way that someone who's being paid an annual salary could. 

And you know, we've also seen that this has been a barrier for individuals to kind of, move up in their job because to become a manager or to kind of move up in an organization you sometimes have to be -- some companies require you to be willing to work on a Saturday, or to be willing to work even if you had a faith obligation that would conflict with the work hours.  So it's been a real barrier for people in certain religious minority communities to get better paying jobs.  And that's really been unfortunate and something we've seen across cases.

And I guess the last point I would make is that cost is often the justification that employers give when defending against these claims.  They're saying, it would cost money and we're not obligated to pay that money to accommodate this employee, so we'll just get rid of them. 

And in our experience that's not only been bad for the employee, but it decreases religious diversity in the workplace and it's bad for the business as well.  They're losing what has been in our experience great individuals who both care about their work but also take their faith seriously.  So I think you know, for all those reasons, Hardison is a case that Becket has consistently been working to try to reverse at the supreme court.

COMMISSIONER DHILLON:  Well thank you.  That was very helpful.

Mr. Williams, you've talked about temporary employees which I think most people could agree are among the most vulnerable people in our society, the most vulnerable workers.  And I think that's for a number of reasons.  But one of the aspects I'd like to focus on is the issue of literacy and the extent to which issues of literacy impact the temporary workforce.

So it is estimated that 130 million Americans struggle with their literacy and that their ability to read is below the basic definition of literacy.  So that means those people, they may not be able to read you know, labels on foods or understand household bills.  But in the work setting it also means they may not be able to understand job postings, job applications, new hire paperwork, employment policies, all those types of things.  And of course that means that will ultimately impact their ultimate earnings.

So I'd like you to talk about whether you think that the issues of literacy as they impact the temporary work force are a factor.  And if so, what is it that the EEOC can do to more effectively reach those employees who may not have what is defined as basic literacy skills.

MR. WILLIAMS:  Well I guess the first thing I would say is you know, a lot of the types of jobs, the lower skill jobs, the general labor jobs, there are no requirements that are established in advance of making an assignment.  And so any sort of weeding out of individuals based on, you know, maybe assumptions about them or anything else, is not based on any bona fide job requirement, in general, and particularly in the low wage, general labor jobs.  It's really just, send us people.  We'll take who we want, and we'll send back people we don't want.

I think if literacy is a basis for not allowing someone to work, I think the burden would be on the client employer to show that there's a legitimate reason for why that person can't do that.  We often see for example, that companies want bi-lingual workers to put things in boxes, right.  Why do you need a bi-lingual worker for that.  That's clearly a proxy for something else.

But in terms of literacy I guess, I would ask, are you asking how can the EEOC communicate people in that?

COMMISSIONER DHILLON:  I think my point is that if someone does not have basic literacy skills they may not be as aware of their rights.

MR. WILLIAMS:  Right.

COMMISSIONER DHILLON:  Because most of the time we communicate, we try to educate through the written word.  But we may not be reaching people who can't access that kind of information because they don't have basic literacy skills.  So if you think that is an issue, a reason why temp employees may not always be aware of their rights and able to effectively advocate on their behalf, what is it the EEOC needs to do?

MR. WILLIAMS:  Well I'm going to take off my lawyer hat now and go back to my job as an ESL and literacy teacher in the Chicago city college system.

And in all seriousness, because we have very effective programs working with the city colleges and working with government agencies like EEOC in establishing materials that could communicate rights to people at all different levels.  Whether it's English proficiency, whether it's lack of literacy, or whatever else.

And I think those kind of programs are very, very important and can be very, very effective.  And we established a whole curriculum around workplace rights.  And in fact, it was those classes that generated the first worker center in the Chicago area, which are you know, non-profit, community-based, advocacy organizations. 

Because these low income workers who didn't speak English or had difficulty with literacy were also coming and talking about their workplace experiences including religious discrimination and lack of accommodation.

COMMISSIONER DHILLON:  I think my time is up.  Thank you.

MR. WILLIAMS:  Okay.

CHAIR BURROWS:  Thank you.  We'll go now to Commissioner Sonderling.  Eight minutes.  Thank you.

COMMISSIONER SONDERLING:  I'll stay with you, Mr. Williams.  You know, our jurisdiction for employers, staffing agencies, and unions, you cover two of the three there.  With your prior experience related to your work with unions that we read in your bio.  So I have a question for you.

If you could just go back in time a little bit with all of your experiences there.  So we do have jurisdiction over unions.  In our strategic enforcement plan, where do you think that needs to fit in and whether it's from an enforcement side or a compliance side, what can we do related to working with unions or enforcing our laws if unions are violating those laws?  Just an overview of those topics with your expertise.  I think that would be very helpful for that category.

MR. WILLIAMS:  Yeah.  And I worked with a couple of unions.  After I taught for ten years, I became a union organizer for ten years and worked with AFSCMI and FCIU.  And you know, have seen how they work to advance the rights of workers in my opinion.

But also in my work as a lawyer and a teacher of low-income and low proficient in English proficiency or literacy proficiency, individuals have heard not so great stories about unions as well.  And so I think unions should be held to the same standard that any employer is held to, and I think the same program should apply.  The outreach to the unions and trying to work with them.          I think one of the earlier witnesses said you know most employers don't want to violate the law and they just may lack information.  I think that's somewhat true at labor unions.  But I would hope that there would be outreach programs to education unions.  There certainly has been a long history of discrimination in unions and I think unions have come a long way in that regard.  But it's not done.  And so I think it's not much different from how you would treat dealing with employers.

COMMISSIONER SONDERLING:  And switching to staffing agencies quickly, for our enforcement plan you've listed a lot of issues that you're seeing.  What would be the most important issue right now from law enforcement, our jurisdiction where employees have to bring these charges of discrimination forward.  Out of all the issues you've raised, what is the most important to tackle right away in the strategic enforcement plan if you just pick one?

MR. WILLIAMS:  Yeah.  I think changing the administrative exemption for the EEO-1's.  The first time I encountered that exemption, you know, we asked for the EEO-1s in discovery and were told, we don't have to do it.  And I couldn't believe it.  I don't understand why.  If anything, I think staffing agencies should be held to, you know, should be required to document more not less than other employees who do direct hiring because of the sort of hidden nature of discrimination that I discussed earlier between the two.

COMMISSOINER SONDERLING:  Thank you very much. 

I'll move to Mr. Reaves.  We've talked religious discrimination.  Obviously a huge topic, very broad from the types of cases to the institutions that are exempt from our laws.  But from an enforcement perspective which is what this meeting is about.  I know a lot of the conversation of your opening and with other witnesses has been around accommodations and that area there, and the standards of what employers have to do or not.

Putting that aside you know, from an actual enforcement perspective, what kind of cases would you like to see the government bring in the religious context, you know, especially from us for the EEOC with religious discrimination, but you can't really discuss the accommodation piece because it's already been vetted out.

I'm just curious what else is out there and what else you think our resources should be used, if there's certain groups or you know, post-pandemic issues that are now arising that we can be looking at?

MR. REAVES:  Thank you for your question.  You know, I think we've seen -- especially post-pandemic -- kind of newer kind of issues that we have not dealt with before.  I mean, this is perhaps more of an accommodation point, but employees who have beards who need a special PPE would be something that's new that we haven't seen before.  Vaccine accommodations is something new.

In terms of kind of, discrimination, you know, I think one kind of cross-cutting recommendation I would have is making it easier for -- and this is something we discussed before.  Making it easier for employees to be able to file a charge with the EEOC.  That's something we've noticed kind of across all of our different stakeholders and different types of cases that it can be difficult for them to come forward.  They may not understand their rights.  And then to be able to come forward and to understand how to file a charge with the EEOC.  Just trying to maybe simplify that process as well.

But in terms of you know, specific types of discrimination, I think there has been an increase in discrimination against Muslim and Jewish individuals as well.  It's something we've seen I think between 2019 and 2022 there was about a 30 percent increase in perceptions of discrimination against Muslim individuals in the United States.  And I don't know the exact numbers on Jewish individuals, but we've seen a discrimination growing for both of those groups.

COMMISSIONER SONDERLING:  Now from the perspective of what religion is and a sincerely held religious belief, you know, as we've seen with the vaccine mandate case.  That definition, which was largely for employment lawyers before to make that analysis is now front and center. 

What do we need to do now to make sure people of all faiths, not just the big ones, as long as they have that sincerely held religious believe, know that they have rights in the workplace too.  And do you see a hesitancy related to that about having then to prove if you're really religious or not?

MR. REAVES:  I think the EEOC's guidance on this point has already been very successful and we've already heard great responses on the Q&A that the EEOC provided.  I think the main point is kind of what you were alluding to that the burden is not on the employee to prove that they're being sincere.  There has to be evidence brought in that for some reason they're being insincere.

I think the other thing I would flag that has been very concerning from our perspective is that employees are coming to us and saying that employers are not respecting the process that they themselves have put in place.  They're not giving individualized case-by-case decisions to their employees and are not giving them kind of the due process that maybe the employee set up maybe in the first instance.  So kind of, helping to ensure the process for obtaining an accommodation is fair.

And like you said, I think another component is how much information is a religious employee required to come forward with to kind of prove up their religious belief.  And on that point the EEOC guidance is very helpful.  You're not required to get a letter from a minister or from a pastor, from a rabbi substantiating your beliefs as long as you can articulate your beliefs to the employer too.

COMMISSIONER SONDERLING:  When you meet with employees, do you see more of lack of awareness in the HR departments that religion is the same as being sexually harassed or discriminated against your age?

MR. REAVES:  I think we definitely do see a lack of awareness there.  And I actually think we've encountered several instances where the company has a written policy that is very good and protects religious employees.  You know, requires accommodations and prevents discrimination. 

But then when the rubber hits the road it's not being enforced because either the manager doesn't know the policy, or the manager doesn't understand the dynamic of religious discrimination in the workplace.

COMMISSIONER SONDERLING:  Great.  Thank you both.  Very unique perspectives from both of you.

CHAIR BURROWS:  Thank you, Commissioner Sonderling.

Now we'll go to Commissioner Lucas for eight minutes.

COMMISSIONER LUCAS:  Thank you.

I'm going to stay on speaking with you, Mr. Reaves.  You mentioned that you've seen a spike in vaccine related cases in the wake -- or charges and claims in the wake of the pandemic.

So while the pandemic may be a novel fact pattern, would you describe the law that applies here as new or uncertain?  For example, things that you mentioned about the need that someone should not be required to submit a letter from their pastor or faith leader.  Or the question of whether or not how you handle a sincere religious belief.  Is that new law or is that pretty well established?

MR. REAVES:  I think that is pretty well established and I think this is actually an issue that the EEOC has long done a good job enforcing before the pandemic.  I think almost ten percent of some of the enforcement actions and claims involved issues like, you know, vaccine accommodations and things like that. 

So I think it was an issue that the EEOC was leading on before the pandemic.  And I think the pandemic just significantly increased the number of individuals who were affected by this and made it a much bigger and more contentious issue.  But I think the law is pretty well settled on this.

I did mention the EEOC's Q&A on the vaccine accommodations.  I think it's very detailed.  It's very helpful.  I would also say there might still be room for more lay guidance.  It's a long document.  It's a little bit complicated.  I think there might be ways in which employees and employers could get kind of, a simpler, condensed version of that too.

COMMISSIONER LUCAS:  And that goes to another question I had.  You know, in addition to our Q&A, the Commission passed at the start of my term, their formal policy guidance on religious discrimination.  Do you feel like stakeholders and your clients are aware of that?  Or are there other ways that we could better educate the public about that longer document?

MR. REAVES:  Yes.  I do think it's probably not something that most of our non-lawyer stakeholders are aware of.  I will say in our experience one thing that religious groups really seem to pay close attention to is actually the government's position in litigation. 

So when there are religious liberty cases that raise novel issues or issues of interest to the Commission, in our experience minority religious groups and just anyone who may have an interest in that case pays very close attention to what the government is saying about that.  You know, they always want to know what's the government's position.

So I think another way to reach these communities is through filing amicus briefs, explaining what the government thinks about X, Y, or Z on important religious liberty issues that affect employment.

COMMISSIONER LUCAS:  Are there any other ways that the EEOC might better reach out to religious communities with its educational efforts?  You know, I've heard from some stakeholders saying that this was the first time they had heard from the EEOC, unfortunately, or they had only heard a couple times, or they hadn't had a sense that the agency cared about this issue.  Which I think is certainly unfortunate.

So how can we do better here?

MR. REAVES:  This touches on a point I was making before.  But I think you know, educating employers, and especially large employers, about what obligations they have to accommodate religious employees is another way.  I think that there are a lot of very good policies out there that these large companies have but when it comes to actually, you know, enforcing them in individual cases or making sure that individual employees are accommodated, that's where we've seen a lot of the problems.

I think also promoting affinity groups in the workplace or promoting a faith-friendly workplace is helpful.  You know, recognizing that an employee's faith is an important part of who they are, and they don't have to kind of, leave that at home when they come to the office.

And I mentioned this before as well, but something we've seen repeatedly is that individuals might not know that they're required to file a charge or might not understand how to file a charge with the EEOC if they have faced discrimination.

And I think you know; my final thought is something that you guys are already working on but just to kind of continue this effort of engaging directly with different religious groups and with stakeholders in these areas.  There are so many minority faiths who care deeply about these issues.  But just continuing to engage with them and you know, look at what issues are important at different times and to different groups.

For example, the Sabbath day accommodation has been an issue that has really been led by the Seventh Day Adventist Church and that organization.  And they've done a really good job of helping to encourage accommodations.  So working with those different groups and those different stakeholders is very important.

COMMISSIONER LUCAS:  Thank you.

Mr. Williams, you mentioned that you had noted that in some of these sort of wide-spread pattern practice or systemic cases involving discrimination against black workers in staffing or temp-agencies was often Hispanic managers or people who were sort of the referral agent.  Someone who was higher up in the staffing agency who was doing that. 

That's also been my experience in seeing some of the cases we've somewhat recently have been authorizing.  That's often paired with the discrimination happening as a result of Hispanic preference discrimination.  Is that a pattern you're seeing?  Is there like a reason why it tends to -- the type of people who may be blowing the whistle?

MR. WILLIAMS:  Yeah.  I live in Chicago and have been working in Illinois for a long time and it's definitely a pattern that we see.  You know, a lot of my early cases were about wage an hour and people being shorted pay.  And I started to realize when I looked at class lists, you know, it wasn't determinate, but these were largely Hispanic names.  And where are the, you know, non-Hispanic names?

And I came to realize in Chicago at least, that there was, you know, the exploitation of one group of workers and exclusion of the other.  You know, as I mentioned you know, the bright spot of this was that, you know, the structure of the staffing agency was to hire Hispanic recruiters and dispatchers and so forth who were supposed to carry out these discriminatory orders.  And they ultimately became the best witnesses to blow the witness.

I will say, you know, Chicago has a very large Mexican immigration population.  It's going to vary place to place.  As I've started to do more national work with organizations you know, we see different populations.  And sometimes it's you know, it's reverse or you know, it's a lot of times men versus women.

My colleague talked about age discrimination, very, very rampant.  I mean, that quote I read, "young pretty women," you know definitely indicative of sexual harassment but also age discrimination is very common to you know, to pass on older workers.  We see that a lot.

COMMISSIONER LUCAS:  Ms. Kulkarni, with my very short amount of time, just sort of running the numbers on -- you said six percent of the incidents involved the workplace.  I think that would come up to about 660 incidents.

Are you aware, are these turning into EEOC charges?  Are you seeing -- are you assisting people to file charges?  I'm just, you know, as we look for COVID and post-COVID and COVID-adjacent investigations and litigation, the pipeline matters too.  If people aren't managing to make it in, we're not going to see the output either.

So to date, we haven't had any Asian-American related harassment cases adjacent to the, or related to the pandemic.  So I'm just curious if you're seeing those turn into EEOC charges.

MS. KULKARNI:  Thank you for the question.  In some cases we are but, you know, as I mentioned at the end of my remarks, what is happening or what we are learning from community members is that they are being challenged by the processes that are in place currently.  Either because of language access, because of their lack of familiarity with the process, and which agencies to turn to.

So a number of the incidents, roughly about 40 percent or so, take place in California.  And so while we are lucky that we have a strong Department of Fair Employment and Housing which is now called the Civil Rights Department, people are also unaware of how to navigate that system and whether to use that verses the US Attorney's office and then EEOC.

And so we have been providing direct help to some of those individuals and we have built, more recently, a more streamlined intake process to be able to gather more information and then to provide that assistance.  So it's certainly our hope to do more of that moving forward, but we've not been able to provide help to all 600 individuals.  And in fact, not all of the 600 would qualify in terms of, you know, bringing forward a case and also are not necessarily interested.

We've learned that many individuals want simply to report so that there's basically common knowledge of what's happening across our country, but don't necessarily want to pursue litigation or other means in terms of getting redress for themselves or their families.

CHAIR BURROWS:  So I'm going to stay with you for just a minute, Ms. Kulkarni and I wanted to say first of all, thank you for the work that you're doing for this Commission on a bi-partisan basis following the horrific mass shootings in Atlanta, in that area last year.  In March.  We really pushed out a resolution unanimously, but also have been following that up with things like, you know, translating our written documents into Asian languages among others.

But can you talk about within these workplace cases, my sense is that there's a lot of harassment, maybe other forms of discrimination.  But about that, and are you seeing any other employers that you think actually have good practices that we should, you know, be thinking about, can we encourage at the Commission?

MS. KULKARNI:  Right.  Thank you for that question, Chair Burrows.

So what I would say is yes.  Quite a bit of this falls under the realm of harassment.  So again, either by supervisors, by co-workers, or even by customers and even patients. 

And I want to say that we actually, from the very beginning, have gotten a number of reports from physicians and other medical personnel that, in fact, patients have either requested, demanded other medical personnel -- even during the height of COVID -- rather than being seen by someone who looks and identifies as Asian-American or Pacific Islander.

And I do want to say too that -- and you referenced -- that I think some of the harassment is also sexual in nature.  And so I didn't have enough time to share that there was also a particularly troubling incident involving a female employee who was sexually harassed by her co-workers, but also asked, you know, what's your ethnicity, what's your race.  And then the sexual harassment in particular was racialized in addition to being sexualized.

And so to your second question which is about positive cases, we have not identified any up to this point, but we actually have a bill that just was signed by Governor Newsome in California, and creates a pilot program for businesses in which they are identified by Department of Fair Employment and Housing, the Civil Rights Department, as basically good stewards and strong businesses that are addressing the discrimination and hate and most notably harassment that their employees, as well as customers face.

And so we hope that that will be launching in 2023 and we will have strong data.  And again, given the fact that California has significant plurality of incidents, at least the ones reported to us, we believe that this could really move the needle in terms of understanding what those best practices are.

CHAIR BURROWS:  Thank you.

I'm going to go now to Mr. Reaves.  I am interested, you mentioned some of the forms of discrimination that -- based on religion -- that have, you know, come to your attention in this sort of pandemic, and hopefully, post-pandemic period.  And I, in particular, we've been looking at the civil rights implications of COVID-19.  So I'd like to hear more.  You mentioned discrimination generally with respect to persons of Muslim faith, of Jewish faith, and could you drill down for that for me a bit?  Because some of what we see is also harassment in those areas, but I didn't know if you wanted to say more about the forms of discrimination that have been taking place, or if it sort of runs the gamut.

MR. REAVES:  I do think it generally runs the gamut of types of discrimination.  We have seen an increase in outreach to our office from Muslim individuals and Sikh individuals.  I do think some of it is related to beard accommodations that I mentioned.  I think that has become a much bigger issue recently, in part because of the pandemic.

And I would say similarly on vaccine accommodations.  You know that has run the gamut in terms of different faiths as well.  We've had individuals, and I think this kind of goes to a broader point that I would like to just briefly mention that I think religious discrimination is a great example of a way in which the EEOC can kind of tackle other forms of discrimination as well.  Because so often religion is tied up with identity, national origin, race, and other things like that.  So you know, ways in which EEOC can prevent religious discrimination will have important kind of effects beyond just religion as well.

CHAIR BURROWS:  Thank you.  That's helpful.  The sort of accommodations with respect to PPE and that sort of thing, coming out of the pandemic.  Obviously we want everyone to be safe.  But that's a particular interest of mine, so I appreciate you raising it.

Mr. Williams, you sort of touched on this and the vulnerability and the unequal power when someone is a temp worker.  We've had a number of -- actually at every one of these sessions, we've gotten the recommendation that temp workers should be considered particularly vulnerable with respect to our work.  Do you have an opinion on that?  I don't know that you quite got that far earlier.

MR. WILLIAMS:  Yeah, I saw the clock and cut a little short.  But absolutely, and it's because of this dual relationship where there is no expectation of employment.  You go, first of all, you know, if you get an assignment, you're lucky enough to get an assignment it could last a day, it could last a week.

And usually these jobs, what we've seen is these jobs themselves last a long time.  They're pretty much permanent jobs, it's just who fills them is contingent. 

And so you know, people are very vulnerable because of that which we see very much happening, you know, affecting sexual harassment at the workplace.  We see it affecting retaliation.  If you have a complaint, whether it's about discrimination or anything else.  You're not fired, there's just no work, and everybody knows that, right.  You get a call and say, oh they don't need you tomorrow.  Why do they not need you tomorrow?  Nobody's going to tell you.

CHAIR BURROWS:  Thank you.  That's helpful.

And so I go next to Ms. Biglow.   You know, I wanted to ask you if you were seeing particular -- you touched on this a bit earlier but -- with respect to harassment or other stereotypes for older workers.  During this pandemic time I will tell you anecdotally. 

You know, I had FEPA share with me that right at the beginning of the pandemic there was a push to fire Asian workers and older workers because of a stereotype that they were either particularly vulnerable or responsible for the pandemic.  So I hope that is not across the board, but I would like to hear just your views on, in general, stereotype being discrimination with respect to the pandemic period that we're in.

MS. BIGLOW:  Thank you.  So I am aware of sort of, older workers being let go during the beginning of the pandemic.  And because of that, it has been harder for them to re-enter the work force.  But I can also elaborate more, and in written comments on that.  That's really all I can share right now.

CHAIR BURROWS:  Well I thank you, because you brought us exactly to the end of my time.  So that is brilliant, and I thank you for that.

And that is also really the end, although we could go many more hours if you all would indulge us, but I know we have limited time.  So thank you for sharing your thoughts, your expertise, your time with this Commission.  We are so incredibly grateful.

And as you know so well, because of the work that you do, this is really an important time for civil rights for this country and for this agency. 

And what we are striving to do with respect to this strategic enforcement plan is to really, you know, not follow, okay, what's hot now, and now there's media here, but to really think deeply and to hear from you and listen to you.  And then find a way to put those into practice in a guidance so that we're not just looking at it for the moment, but we're taking a thoughtful look over the next several years. 

So thank you, thank you, thank you.  As I mentioned, this is the third and final listening session to hear public input on the strategic enforcement plan.  We've heard from more than two dozen witnesses and I thank all of them.

And of course, this is the first piece of this.  We will continue to get both on our website and in the federal register, as well as at our email box, sep2022@eeoc.gov, which if you didn't catch that just go on our website.  We will be considering the testimony we heard today and looking at, you know, we've been working actually since the Spring to put together a draft on a bi-partisan basis with every office.  Included in that as well, is a number of our career staff experts across the agency.  So we'll be continuing to do that. 

And in closing, I'd just like to say a very sincere thanks to all of the folks who have been working tirelessly to prepare today's session.  Those in each of my Commissioner colleagues offices who have been working since the spring to put together a draft plan.  And we are hoping we will be able to share that with the public very soon.