Council Meeting

Held Tuesday, October 23, 2007

Host: Ms. Era Marshall

Introduction

Ms. Delia L. Johnson, Co-Chair and Director, Office of Civil Rights for International Broadcasting Bureau, opened the meeting with a few remarks and then asked the attendees to give their names, agencies, and positions. She thanked Era Marshall, Director of the Office of Equal Employment and Minority Affairs at the Smithsonian Institution, for hosting the meeting at the National Museum of the American Indian.

Mr. Jorge Ponce, Council Co-Chair, mentioned that he was wearing the Mendez v. Westminster lapel pin, the landmark legal decision that desegregated public schools in Orange County, California in 1947. He suggested that attendees show their support of this decision by asking for the Mendez stamp when they visit the post office. EEOC Commissioner Stuart Ishimaru, the invited guest speaker, indicated that he had found out about this important decision from an EEO Infogram that Mr. Ponce had sent him.

EEOC Commissioner Stuart Ishimaru

Commissioner Ishimaru indicated that this might be the last time that he addressed the Council. Unless the Senate Committee on Health, Education, Labor and Pension, currently chaired by Senator Kennedy, took up his re-nomination before adjourning in December 2007, his term as an EEOC Commissioner will come to an end.

E-RACE Initiative

Commissioner Ishimaru indicated that he has disagreed with the new EEOC Chair, who was elevated to this position on August 31, 2006, on a multitude of issues. However, he said that both shared an interest on racial discrimination.

Commissioner Ishimaru thinks that race is not just simply a “black and white” issue. Thus, Chair Earp rolled out the E-RACE Initiative in February 2007 to eradicate racism and colorism from employment. The conundrum is the recent visibility of “noose” stories in the mainstream media. He worries that this emphasis on nooses would take away the focus from the more prevalent “subtle” discrimination that EEOC and federal agencies have to deal with on a daily basis.

Jorge Ponce said that he remained concerned because EEOC had not issued a similar initiative to cover discrimination based on national origin – which is the basis most frequently used by Hispanics when filing discrimination complaints. He stated that EEOC, OPM, MSPB and other organizations have indicated that Hispanics remain underrepresented in the Federal Government. For EEOC to remain silent on this issue gives the impression – rightly or wrongly – that it is insensitive to the discrimination faced by this group.

Mr. Milton Belardo, Chair of the National Council of Hispanic Employment Program Managers, indicated that if the EEOC had formed an Asian American and Pacific Islander Work Group, he was waiting anxiously for the EEOC Chair to exercise some leadership and designate an initiative that looked at Hispanic issues and that would be led by an EEOC Commissioner – just as in the case of the LEAD and the E-RACE Initiatives.

Mr. Ponce pointed out that one of the press releases that EEOC issued to announce the E-RACE Initiative underscored that in Fiscal Year 2006, 27,238 charges alleged race-based discrimination -- accounting for 36% of the charges filed that year. However, Mr. Ponce stressed that there were cultural issues associated with the low number of discrimination complaints filed by Hispanics. In fact, he said that he had read a recent article that stated that when Hispanics were unhappy with their jobs, they did not file discrimination complaints; they just looked for another job and voted with their feet. Consequently, one cannot assume that just because Hispanics don’t file that many discrimination complaints as compared to other groups, they don’t need an EEOC initiative.

Collection of Race Data

Commissioner Ishimaru wondered whether there was a more equitable way to collect race-related information from applicants and employees. He thought that by capturing multiple-race information and/or race information from Hispanics, agencies were not collecting the most accurate information. While he said that he had lost this battle with former EEOC Chair Dominguez, he still thought that it was in the employer’s best interest to have the most reliable data about its workforce.

Underrepresentation

Commissioner Ishimaru said that various civil rights champions had asked how to make the federal workplace more fair and for employees to feel less excluded. He stated that the underrepresentation of employees at the higher grade levels was an issue that EEOC could not tackle by itself. To address it effectively, one had to get the agency leaders involved.

Commissioner Ishimaru Discusses Other EEOC Initiatives

EEOC Chair Earp announced on October 11, 2007, the formation of an Asian American and Pacific Islander Work Group to address issues related to federal sector employment, special emphasis programs and the complaints process.

EEOC Commissioner Christine Griffin is spearheading LEAD (Leadership for the Employment of Americans with Disabilities) – an initiative to address the declining number of employees with targeted disabilities in the federal workforce. Commissioner Ishimaru indicated that the representation of employees with targeted disabilities has been declining in the federal sector for the last thirty years. He wondered how to get federal managers to deal with this problem.

Federal Sector Reform

Commissioner Ishimaru said that he is passionate about reforming the administrative process to handle discrimination complaints in the federal sector. Chair Earp did not like the proposal issued by former Chair Dominguez. Recently, Commissioner Griffin submitted a position paper on improving the EEO investigations.

Jorge Ponce indicated that according to the Annual Report on the Federal Work Force for Fiscal Year 2006, the average time for federal agencies to complete investigations had decreased to 186 days – just six short of the statutory limit. This was cause for celebration by the civil rights community. Thus, Mr. Ponce indicated that he could not imagine what recommendations could be included in an EEOC position paper to improve on the FY06 achievements. Mr. Ponce emphasized that what was needed was for the EEOC to roll out a public relations campaign to highlight this milestone. To ignore it might demoralize federal agencies and lead them to assume that it was an “impossible dream” to please EEOC. Rather that staying on course to achieve more excellence, federal agencies would opt for complacency -- to the detriment of everyone.

Other EEOC Matters

Ms. Era Marshall indicated that EEOC’s focus lately has been on compliance issues, while the emphasis of MD-715 has been on efficiency. At times, EEOC brings diversity to the discussion – which is a term that resonates with Human Resources professionals. Ms. Marshall thinks that the emphasis of EEOC efforts should be on compliance and on holding managers accountable.

Jorge Ponce stated that EEOC had been mistaken to concentrate so many of its resources on compliance. He explained that a continuation of this policy would never allow EEOC to get rid of its large inventory of pending cases. It is precisely to make a dent in these inventories that EEOC needs to increase its emphasis on the preventive side of its operation.

Mr. Belardo stated that when it comes to providing guidance on affirmative action issues, EEOC falls flat on its face. He stressed that it was an outrage that the EEOC Chair was reluctant to include national origin discrimination in its E-RACE Initiative. He concluded that by its inaction on these matters, EEOC was falling into irrelevancy and becoming the toothless tiger of past years.

Mr. Belardo indicated that minorities and women faced underrepresentation at the SES ranks. Thus, he hoped that EEOC would provide more guidance and accountability on this challenge. Commissioner Ishimaru said that there is a need to bring more litigation to highlight this issue. He said that he worried that the Civil Rights Division at the U.S. Department of Justice was litigating lately less of these cases than in the past.

Mr. Belardo also stated that by changing the nomenclature that EEO professionals had used for years, EEOC had caused great confusion unnecessarily. For example, the terms underrerpesentation and affirmative action were known to everyone in the civil rights arena. By interjecting terms like “participation rates below the Civilian Labor Force” and “diversity,” EEOC created a false impression that the regulations and/or statutes had provided new protections or that the old definitions of these terms had been changed. Moreover, Jorge Ponce said that when EEOC embraced the nine occupations categories, it created a “barrier” with the Office of Personnel Management that relied on the PATCOB categories. Even the U.S. Government Accountability Office issued a report that called for the EEOC and OPM to collaborate better on civil rights issues.

Ms. Delia Johnson said that what EEOC needs is to have less work forces, task forces, and initiatives. She explained that the number of complaints filed has decreased not because EEO Offices are doing an outstanding job at prevention, but because employees and applicants are filing less complaints than in the past.

Ms. Johnson stated that it would be helpful if EEOC issued its long-awaited report dealing with the alleged intrusion into the EEO process by Offices of General Counsel. She indicated that it is not proper for OGC to review acceptance letters and final agency decisions. She also explained that certain EEO offices can settle EEO complaints up to a certain dollar amount. Thus, she hoped that EEOC would offer some guidance to standardize the latter practice.

Doug Gentile, from the U.S. Fish and Wildlife Service, said that there is an overall breakdown regarding special emphasis programs. He indicated that the EEOC’s Director of the Office of Federal Operations had acknowledged previously that EEOC can’t do anything about taking proactive measures except through the complaints process.

Miscellaneous Issues

Jorge Ponce indicated that he had received numerous phone calls and e-mails recently regarding Donald Names’ departure from EEOC. Individuals who called Mr. Ponce were concerned that this was the tip of the iceberg and that EEOC would suffer a brain-drain shortly from employees who were unhappy about the relocation of its Washington headquarters. Commissioner Ishimaru agreed that Mr. Names’ departure and EEOC’s new location presented big challenges.

In responding to a question about the form to collect applicant-flow data, Gazal Modhera of the Chair's office stated that it was under review by the Chair for signature. Once signed by the Chair, notification will appear in the Federal Register regarding the Commission's intent to submit to the Office of Management and Budget (OMB) a request to approve a new information collection form.