May 19, 2015

Committee on Health, Education, Labor and Pensions
United States Senate
(Remarks Prepared for Delivery)

Good afternoon, Chairman Alexander, Ranking Member Murray, Members of the Committee.  Thank you for inviting me and the Chair Yang to testify today.

As General Counsel of the EEOC, I am in charge of the Commission's litigation program, overseeing the Agency's 15 Regional Attorneys and 325 outstanding staff members who conduct or support Commission litigation throughout the nation and are motivated by the highest ideals of public service.

This year we celebrate the 50th anniversary of the EEOC which was created by the landmark Civil Rights Act of 1964.   The Civil Rights Act, which grew out of the freedom struggle aimed at throwing off an odious racial caste system, has inspired each generation of Americans to expand opportunity for women, religious minorities, older workers, individuals with disabilities and the LGBT community.

This anniversary is an opportunity to reflect on how the statutes we enforce have transformed this nation by enabling countless individuals to unleash their individual potential and productivity.

So where are we today? As the agency's chief prosecutor I believe there is bad news and good news.  The bad news is that discrimination remains a problem in this country.  For example, in a recent case from North Carolina, two African-American truck drivers were repeatedly subjected to derogatory slurs that include the "n" word, a noose and threats of lynching.  However, the good news is that it took the jury in Winston-Salem less than an hour to find the employer liable and assess stiff damages. The court issued broad injunctive relief to make sure it did not happen again.  

Plainly there is work to do. The EEOC's goal to eradicate discrimination appropriately begins with prevention.  The EEOC issues policy guidance to convey the agency's views to the public of the statutes it enforces and devotes enormous attention and resources to public outreach and education.  When, following investigation of a charge, we find discrimination; we try to resolve it informally.  When informal resolution is not possible, the statute gives us authority to file suit in federal court.

Most of our cases settle -that is a good outcome because it means that the employer was willing to come to the table and work with us on an appropriate remedy. Last year, our office was able to favorably resolve 93% percent of its cases.  When we have had to go to trial, I am pleased to say we have won two-thirds of our jury trials from FY 2013 to the present. This public record shows a successful program in ensuring fairness for victims of unlawful discrimination and deterring future misconduct.     

My written testimony sets forth many examples of our successful litigation efforts.  We have successfully prosecuted cases involving employers who have failed to hire any women in certain positions;   who  admit to firing a woman because she is  pregnant;  who who have impeded economic independence for workers with disabilities.  We have also successfully litigated cases challenging age and religious discrimination.  As you know, the Supreme Court recently heard our religious discrimination case against Abercrombie and Fitch, a case defending the quintessentially American principles of religious freedom and tolerance.  Such a broad range of religious and other organizations filed amicus briefs in support of the EEOC's position, that one article commented that we had united the world's religions.

We, however, do not win all of our cases. I understand your concern about some high-profile losses and fee awards against the Commission.  Here is what we have done.  Where we are not successful, I have stressed a culture of examining "lessons learned" in order to carry out our public law enforcement mission more effectively.  This means my personal review of these cases; discussions with the attorneys involved; immediate adjustment of any internal practices, if appropriate, to ensure we don't repeat our mistakes, as well as to ensure we have fresh perspectives on the complex cases; and a review of the issues with management, as well as in training.  

 To close, despite these setbacks, we make a positive difference in the quality of opportunity for working families.  At a recent Commission meeting, we highlighted the resolution of a race and national origin harassment case filed against an oil well service business in Wyoming.  A Charging Party from this case recounted how he was shocked his supervisor casually called him and other Latino employees "dumb Mexicans" or "worthless Mexicans."  As is almost always the case, our resolution included significant non-monetary relief.  Our courageous charging party was grateful, testifying: "Now that it's all over, I am proud that we stood up for ourselves, and I'm glad EEOC was able to help get things like training and surveys as part of the settlement.   . . All I ever wanted was to change how people were being treated, and hopefully [I] help[ed] do that."

Thank you for your attention and I would be pleased to answer any questions.