EEOC Meeting on Race and Color Discrimination of April 19, 2006, Washington D.C.

Good Morning. I am Michael L. Foreman, Deputy Director of Legal Programs, appearing for Barbara R. Arnwine, Executive Director of the Lawyers’ Committee for Civil Rights Under Law (“Lawyers' Committee”). In 1963, the Lawyers' Committee was formed at the direction of President John F. Kennedy to focus the efforts of our nation’s bar to advance, through the rule of law, equal justice under the law. Since that time, the Lawyers' Committee has been at the forefront in advancing equality and access in the areas of education, housing, voting rights, community development, and minority business opportunities.

Title VII has not had a more active partner in the fight against unlawful discrimination in the workplace than the Lawyers' Committee. We worked tirelessly with a broad coalition of organizations to secure the passage of the Civil Rights Act of 1991 which overturned a series of U.S. Supreme Court decisions that were adverse to certain provisions of Title VII. In our continuing efforts to strengthen Title VII and its effectiveness, we have also have filed amicus curiae or friend of the court briefs in virtually every U.S. Supreme Court case affecting Title VII since its passage. The Lawyers' Committee knows the importance of meaningful enforcement of this vital law and the continuing vile effects of race and color discrimination in employment.

I would like to thank Chairperson Dominguez, Vice Chair Earp, Commissioner Ishimaru, all other Commissioners and staff for convening this meeting on the introduction of the new Chapter on Race and Color Discrimination for the Equal Employment Opportunity Commission’s (EEOC) Compliance Manual and, in particular, for providing the Lawyers' Committee the opportunity to participate in this momentous occasion.

The introduction of the chapter on race and color discrimination to the EEOC Compliance Manual has been long awaited and is greatly needed. Coming on the heels of the Commission’s Systemic Task Force’s acknowledgement of the importance of addressing systemic discrimination in the work place these two tools in tandem should reinvigorate the battle against race and color discrimination in today’s workforce.

As the Supreme Court articulated in Grutter v. Bollinger, the “skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints.” 1 It is imperative that employers promote the exposure referenced by the Supreme Court through appropriate training and the consistent enforcement of the equal employment opportunity statements they publish. Indeed, it is the responsibility of employers to take all reasonable steps to ensure that discrimination enters neither its formal implementation of policies and procedures, nor its day- to- day operations.

The EEOC chapter on race and color discrimination promises to provide guidance on the nuances of the behavior that constitutes a violation of Title VII. In 1964, the passage of Title VII offered hope that the discrimination entrenched in our nation’s workforce would be dismantled and replaced with equal employment opportunity for all. Sadly, the passage of federal laws banning employment discrimination has not resulted in the end of racial disparities. The introduction of this chapter on race and color discrimination is uniquely relevant at this point in history where, in spite of great strides, too many minorities find themselves falling below the national median income.

Race Still Matters

Although some declare that our society is colorblind, statistics reveal that a significant divide remains in employee earnings. Current U.S. Census data show that a color line exists in the wages earned in American workplaces. Just looking at the differences between black households and white households alone shows an ever increasing income gap. Since 1947 white households have not only out earned black households, but the median American income as well. Black households, however, have consistently fallen below the median American income.

In 1981, black households only earned 56.4% of what white households received in income. While white households earned 4.8% above the median income, the income of black households was 59.2% below the average. Ten years later, black households earned 57% of white households. White households earned 4.9% above the median and black households earned income at a rate 59.9% below the average.

The most current census data reveal that in 2001 black households earned 67.2% of the income white households receive in wages. White households earned 5% above the median income while black households were 65.3% below the national average. 2 Workplace inequities are a contributing factor to this disturbing trend of the incomes of black households falling farther below the median American income.

Current data also show that minorities are fighting an uphill battle when seeking self-employment in the construction industry through public works contracts. A study released by the National Bureau of Economic Research in February 2006 shows a rapid decline in the participation of minority contractors in the construction industry despite the effectiveness of programs designed to increase minority participation. The considerable evidence of discrimination justifying these programs aside, the successful challenges by non-minority contractors in the courts was one cause of the decline. Self-employment rates of minorities, black contractors in particular, collapse when these programs are replaced or weakened through court challenges. 3

Race and Color Chapter to EEOC Compliance Manual Essential

In our litigation, a consistent theme of inaction has emerged with both public and private employers. The paralysis from fear of exposing themselves to a lawsuit has often been the impetus for employers to do nothing in response to discriminatory behavior. As a result, these employers have allowed discrimination to permeate the workplace and, in some cases, become part of the agency or corporate culture. In some cases this inaction is a result of simply not appreciating the lingering and infectious impact of race and color in employment. Sadly, in other cases, the inaction manifests an intentional apathy to the consequences of discrimination.

We applaud the detail with which the EEOC has attempted to define race and color discrimination. For example, explaining that race and color discrimination not only encompasses an employee’s ancestry, but also appearance, culture, race-linked illnesses, and even the perception that an employee belongs to a particular racial group will surely be a revelation to some employers and increase sensitivity to these issues.

Another key component to the race and color discrimination chapter is how the definitions, examples, and explanations emphasize the need for employers to look at their employees as a complete person. As it is impossible for individuals to divide themselves into sections based on race, gender, culture, ethnicity, religious, and any disability – employers likewise must learn to relate to their employees as a multi-faceted person.

The EEOC must, however, couple the publication of the chapter on race and color discrimination to its compliance manual with aggressive education. The introduction of this chapter provides a unique opportunity to raise further awareness of the behaviors that constitute a violation of Title VII. As the government agency mandated with the enforcement of Title VII, the EEOC is the appropriate leader to shape a new conversation on race discrimination in the United States.

The recommendations in the EEOC Systemic Task Force Report published last month are an excellent start. The Lawyers' Committee encourages the EEOC to implement the recommendations in this report including the dedication of additional resources and the development plans to identify, investigate and litigate appropriate systemic cases. The reinvigoration of the EEOC’s systemic program is a natural partner to the exhortation on the definition and intrinsic consequences of race and color discrimination.

The EEOC should also be a leader in the discussion of intersectional discrimination. Because employees are multi-dimensional persons, it is sometimes difficult to pinpoint the motivation for discriminatory behavior. Indeed, the discriminatory actors may not be able to distinguish which factor was the trigger for the offending behavior. The requirement to show that unlawful discrimination occurred “because of” race, gender, color, religion, or national origin complicates the pursuit of justice for these plaintiffs. For example, a black female Muslim who has been denied training and promotions may not be able to accurately predict the motivation for her employer’s actions. Such plaintiffs are forced to choose a protected class and the risk of not overcoming the evidentiary burden to successfully challenge the discriminatory behavior. As the agency charged with the enforcement of Title VII, the EEOC must begin a dialogue with employers so that they are not only more sensitive to this issue but also will take affirmative steps to combat intersectional discrimination.

Sad, But True Race Cases Currently On Our Docket

The Lawyers' Committee currently has employment cases on its docket which reflect that discrimination on the basis of race or color still exists; sometimes in the most grotesque and demeaning form. I will take a just a few moments to highlight a fraction of these matters.

Just two years ago, some of our black clients at a major employer in the South were confronted by a “whites only” sign on a bathroom door. Even in the 21st century, blatant racism is alive and has been allowed not only to exist – but thrive in some workplaces. The Lawyers' Committee, along with the EEOC Regional Office in Birmingham, Alabama, is actively litigating this case in federal court.

We, also, represent a woman from Afghanistan. While working for a government contractor in a southern city, she and her colleagues trained American troops in urban warfare through role-play. While performing her tasks in substandard conditions – such as no air conditioning during the height of summer -- our client believed she was demonstrating her patriotism and her love for America. In return, she suffered retaliation for challenging the hostile environment in which she and her colleagues were forced to work through demeaning language like “you know what they did with women like you in Bosnia don’t you” and, inexcusably, a physical assault by her supervisor. The heinous assault left her bruised physically and emotionally shattered. Her supervisor’s reminder of how women are treated in her region of origin leaves no doubt that she was discriminated against because of her ancestry, culture and gender.

A young black woman who worked for a fast food franchise challenged her white supervisor’s repeated use of the “n-word.” Within a week, she was threatened, suspended and ultimately terminated. This client, also, was denied a promotion, but was expected to perform a supervisor’s duties for lower pay. Her former employer openly stated that the woman who was in a supervisory position was “a pain” and vowed that no other woman would be promoted.

In the police and fire departments of a northeastern city, there are no racial minorities and very few women are members. Although this may appear incredulous on its face, the combination of the fact that the minority population surrounding this community has a high percentage of qualified minorities with the absence of a residency requirement for the jobs, posts a virtual “whites only” sign. The impact of past discrimination has not only created a “good ol’ boy” network but also the perception that no minorities need apply. With the support of the local NAACP and Urban League officials, the Lawyers' Committee is working to improve the selection process for these trusted civil servant positions.

While these cases show just a glimpse of what we see on a day-to-day basis, they demonstrate how past discrimination and the inaction of the employer to dispel racist activity creates an environment where minorities are not only stifled from entering the selection process, but also from being poised for the opportunity for promotion.

The U.S. Supreme Court heard oral argument on Monday, April 17, 2006, in Burlington Northern and Santa Fe Railway v. White, Docket No. 05-259, which raises the issue of what conduct by the employer constitutes unlawful retaliation. The Lawyers' Committee filed an amicus curiae brief, on behalf of itself and a group of other civil rights organizations, urging the Court to uphold the EEOC standard that any action “reasonably likely to deter the exercise of rights under Title VII” is prohibited. The Court’s answer to this question will have a tremendous and lasting impact on employment discrimination litigation. As we articulated in our amicus brief, protection from retaliation is an inseparable component of the enforcement of Title VII. As we await the Court’s decision in Burlington Northern, the Lawyers' Committee will continue to advocate that the failure to protect complainants from retaliation will have a chilling effect on employees acting as private attorneys general in the enforcement of employment discrimination laws. We applaud the aggressive approach the EEOC has taken in its guidance and litigation to attack unlawful retaliation in the work place and we only wish that their sister agency, the U.S. Department of Justice, would have been equally aggressive in the stand it took before the U.S. Supreme Court.

Emerging Issues

The Lawyers' Committee has identified several emerging issues that threaten the balance of diversity in American workplaces. One example is the use of credit histories by employers. Credit histories are currently used as factor in hiring and promotion decisions made by many employers in both the private and public sector. Credit reports are not only requested by employers filling positions involving the handling and distribution of money and property, but for middle and upper level management “trust” positions as well. Current statistics show that 35% of employers in the American Society of Employers and 40% of retailers use credit reports as a screening device. Under the guise of seeking applicants possessing discipline and trustworthiness, this practice may have a disparate impact on racial, ethnic and language minorities. At this time, Hispanics are twice more likely and blacks are three times more likely to have “high risk” credit.

Due to predatory lending practices, poor education on credit scoring, limited credit histories, and the lack of familial wealth, the discipline and trustworthiness of people of color are often not made manifest in their credit reports. As a result of having too few creditors or an almost usury interest rate on a loan, employers may dismiss an otherwise qualified minority applicant for employment positions.

In a similar vein, some employers’ background checks not only include criminal convictions, but also arrest records. As articulated in the new chapter on race and color discrimination in the EEOC Compliance Manual, an arrest is unreliable to determine whether the applicant committed the alleged acts. Moreover, the realities of racial profiling call the relevance of arrest records as a tool to measure an applicant’s qualifications into serious question.

In still another example of emerging issues, the Lawyers' Committee has learned that some states have contracted for a test to measure an applicant’s “workplace readiness” and offer a credential for those obtaining a particular score. The test purports to not only measure reading and math skills, but also discipline, trustworthiness, ability to communicate in English, and an ability to relate well with others. A readiness test may make sense for adults without a high school diploma who desire information in addition to a recitation of their work histories to provide employers. The primary issue with these workplace readiness tests is that they purport to be a valid screening device for all positions. Considering the different skills and abilities associated with each position available in the country, it is unbelievable that such a universal valid screening device exists. Moreover, the emphasis on communication in English may have a disparate impact on persons for whom English is a second language. Also, it is unknown what accommodations may be offered for persons with disabilities in the administration of this exam. Another underlying issue is that if employers accept this credential, what impact that may have on the graduation rates in our nation’s high schools. These tests may unwittingly encourage students who do not intend to attend universities and colleges to drop out. In alignment with the “Youth @ Work” program, the EEOC should monitor the impact of these workplace readiness tests not only on members of protected classes, but youths in general.

Preventative Measures

What should employers do to attempt to prevent discrimination? First, employers must commit to more than just written policies and the haphazard enforcement of them. Employers must include representatives receiving these complaints that are not only interested in the defense of potential claims, but can also explain and assist the employee in navigating the employer’s anti-discrimination policies and procedures. Secondly, employers must invest in meaningful and effective training on their own anti-discrimination policies and procedures, as well as sensitivity/diversity training. Handing an employee a manual is insufficient. Employers are responsible for ensuring that each employee has sufficient opportunity to not only be lectured about policies but also ask questions and receive answers. Sensitivity/Diversity training must not solely focus on the defense of the employer. Instead employers should consider the education of employees about cultures other than their own as a preventative tool to ward off discrimination complaints.

In conclusion, the addition of the chapter on race and color discrimination in the EEOC’s compliance manual is critical in this modern fight for a workplace free from bigotry. The chapter further crystallizes what constitutes discrimination under Title VII. As president Lyndon Johnson so eloquently stated in his first State of the Union message, “[u]nfortunately, many Americans live on the outskirts of hope – some because of their poverty, and some because of theft [sic] color, and all too many because of both. Our task is to help replace their despair with opportunity.” 4