Vol. 47, No.
Chair Cari M. Dominguez wants the EEOC to adapt to workplace changes.
Last August, Cari Dominguez was sworn in as chair of the Equal Employment Opportunity Commission (EEOC). Working in the federal government is nothing new for Dominguez: She headed the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) during the late 1980s and early 1990s and was Labor’s assistant secretary for Employment Standards. Recently, Dominguez talked with HR Magazine Senior Writer Bill Leonard about her first six months as chair of the EEOC and about how the tragic events of Sept. 11, 2001, changed the way the EEOC and other government agencies operate. She also discussed efforts to create a new strategic plan for the commission, which she believes will provide a fresh approach to the EEOC’s anti-discrimination efforts.
HR Magazine: Prior to becoming chair of the EEOC, your experience working in the federal government was with the Labor Department’s Office of Federal Contract Compliance Programs. What are the differences between the OFCCP and the EEOC?
Dominguez: I think there are more similarities than differences between the Labor Department and the EEOC. OFCCP’s mission is not only to ensure non-discrimination but also to expand opportunities and to make sure that all the employment decisions are inclusive and supportive of diversity. That is very comparable to the mission of the EEOC.
The EEOC is a bit different because, in many ways, we are the reactive enforcement arm of the non-discrimination laws. We receive charges from the public, and the primary component of our mission is to try to address those discrimination allegations. However, at the same time, the EEOC has a comparable mission in that we do work to proactively prevent discrimination from occurring in the first place. So I think the OFCCP and EEOC share common grounds, although the focus is slightly different. One of my goals is to see how the two agencies can partner and work together more closely, because with unity there is strength. There’s no reason why the EEOC can’t team up with the Department of Labor if it helps both agencies further their missions.
One of my major concerns is the need to improve our coordination efforts. The EEOC under Executive Order 12067 is the lead agency on all the civil rights employment enforcement activity for the federal government, and there are more than 30 EEO-related laws that affect the employer community. [The EEOC has direct enforcement responsibilities for six of these laws: Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the Civil Rights Act of 1993.] One of the things we need to do is improve upon the ongoing coordination efforts and make sure that we streamline processes, eliminate overlap, as well as improve the understanding within the employer community of what’s required of them.
HR Magazine: As you work on the coordination effort, what might the average employer see in the near future that might change the way it complies with EEO regulations or affect the way it operates?
Dominguez: Something we’re looking at carefully is the definition of a job applicant. We’ve been trying to better define what constitutes an applicant, because the definition will determine the record-keeping obligations of employers and the methods they use to ensure that their hiring procedures are non-discriminatory. And that’s one of the areas where I think we have an opportunity to work closely with the Department of Labor. I think defining an applicant, particularly in the context of Internet and online recruitment, is a key issue. We will have to work closely together with other agencies to clarify the obligations of employers and also to make sure that employees understand their rights under the laws.
HR Magazine: Is the EEOC currently working to publish guidance on the definition of an applicant? And if so, when might the guidance be ready for release?
Dominguez: The commission is coordinating guidance not only with the Labor Department but also with two other agencies that are part of the review process: the Justice Department and the Office of Personnel Management. So we’re working on it. We don’t have a specific timetable, but, after lengthy consultations, we are getting close to issuing a proposal. The next step would be to come out with a cohesive proposal that would then be shared with the public for comment.
HR Magazine: Have you sought employer input on this issue?
Dominguez: We’ve been getting input from all groups that clearly would be affected by a change in the definition of an applicant. One of the things that we’re trying to do is make sure we separate the serious applicant from the curious. A lot of people who use the Internet might click onto a job listing even though they aren’t even remotely interested in a certain job, but they visit an employer’s site because they want to see what’s there. I’m hoping that as we refine the guidance, we can have a definition that meets the obligations of employers while at the same time protecting them from just mounds and mounds of unnecessary paperwork. It’s a balancing act, but it’s one that needs to be addressed.
HR Magazine: You’re the first EEOC chair who is not an attorney. Do you think that your background and career experience bring a different perspective to the job?
Dominguez: I am not a lawyer, but I am an officer of the law. I take that responsibility very seriously, and I’m going to make sure that the laws are enforced fairly and firmly and fully. I think that not being a lawyer provides me with a unique perspective in that I’ve been in the corporate world, I’ve worked in the public sector, I’ve been an entrepreneur and I’ve been a partner in two major international consulting firms. So I’ve looked at workplace issues from a variety of vantage points. I think these practical experiences provide a rare opportunity to set policy, to set a vision, to rally the support and resources, and to communicate the direction in which this commission and administration want to head.
I am also surrounded by terrific attorneys here at the EEOC, so I have no concerns about not being one myself. I think my mission is one of setting the policy and then working closely with our legal staff to make sure that our direction is fully supported by the laws and by what we’re trying to accomplish here.
HR Magazine: Since August when you were sworn in as chair, the EEOC has operated with only three commissioners—yourself, Vice Chairman Paul Igasaki and Commissioner Paul Steven Miller—when there should be five. The commission also hasn’t had a general counsel, though the nominees are in the confirmation process. Has the lack of key personnel created any sort of stumbling blocks for any of your initiatives?
[Editor’s note: On March 7, after this interview was conducted, Leslie E. Silverman was sworn in as the fourth EEOC commissioner.]
Dominguez: It really hasn’t caused any stumbling blocks. I have a productive relationship with both of my fellow commissioners. Vice Chair Igasaki and Commissioner Miller have both been extremely helpful, and we have also been incredibly busy since I arrived in August.
I was in New York on Sept. 10, and on the following day the world dramatically changed for all of us, and so did the focus of the EEOC. Since Sept. 11, the commission’s focus has been primarily one of proactively preventing backlash and discrimination against individuals who are of the Muslim faith or of Arab-American background. Both of my fellow commissioners have been extremely proactive on that front. We have been so focused on that, and we have been so focused on setting our five-point plan, that not having a full commission or a general counsel has not been a burden to us. It has not affected the ongoing operations of the commission. In fact, I don’t recall the last time the EEOC had a full five-member contingent. I think that for the most part the commission has been operating with only three or four commissioners since the mid-1990s.
HR Magazine: After the Sept. 11 terrorist attacks, was there a significant spike in the number of complaints alleging employer discrimination against Muslims and people of Middle Eastern descent?
Dominguez: There has been a dramatic spike. I think at the last count there were more than 350 charges. There’s no way of measuring how that compares to previous data because, prior to Sept. 11, we did not separately track complaints of discrimination that were aimed specifically against all of the groups affected after Sept. 11. Since September, the commission has created a new category, which we call Category Z, and we now use it to track the number and type of charges that we receive on the basis of religious or national origin discrimination relating to the events of Sept. 11.
We have taken a number of tactics and initiatives to proactively address the backlash problem. The first thing we did was reach out to our whole regional infrastructure. We have 51 offices throughout the country and wanted to make sure that we worked closely with our district and area office directors in reaching out to community leaders. The message that we wanted to present to these leaders and their communities was that we shouldn’t misdirect our anger against innocent workers who happen to come from Arab-American ancestry or happen to be Muslims.
The commission also put together educational sessions and seminars. Vice Chair Igasaki was very helpful in leading this charge, and met with a large number of employer and employee groups.
In December, we held the first commission meeting since my appointment as chair and focused on the topic of backlash and discrimination following Sept. 11. During that meeting, members of the affected groups and several employer-based groups and professional groups, such as SHRM, came in and talked about some of the problem areas that the commission should focus on further. We’ve also refined our technical guidance on religious and national origin discrimination and have placed information on our web site that addresses the problem.
We also issued—and I believe this is one of the first times this has ever happened—a three-agency statement from the Department of Justice, the Department of Labor and EEOC that alerted employers about their responsibilities and informed them about what they could do to help prevent discriminatory practices. We have translated our EEO posters and guidance in 15 or 16 different languages, so there’s been just a phenomenal amount of information.
HR Magazine: You mentioned your five-point plan. Talk briefly about it and how the agency is beginning to implement the plan.
Dominguez: The plan is really just building on some of our previous work, as well as emphasizing some new areas of activity. First of all, proactive prevention is very much a core ingredient of our responsibilities. We’re going to do more to prevent discrimination from happening in the first place. How do we do that? Currently, we have technical assistance programs seminars, but we want to build on that. We want to use the technology, we want to use the media. We want to have alliances and partnerships through organizations such as SHRM. There are a lot of groups out there that share in the same mission that we do: to make sure that the workplace is free of discrimination through education and outreach. So our effort is to not only build on what we’re doing, but also to look for other strategic alliances and partnerships that will allow us to get the information out.
While prevention is our first line of defense and offense to eliminate discrimination in the workplace, the second point to the plan focuses on what the commission must do once we receive a charge of discrimination. The answer is proficient resolution. The commission has made a lot of progress in improving its charge resolution processes. But I want to take a look at the trends and to make sure that we continue to process the charges we receive faster, better, cheaper. We have an integrated mission system in the works now that’s designed to use the latest technology to help us track the stage of each charge from beginning to end, including litigation. Once we get that implemented we’ll be better able to evaluate what types of charges we’re receiving, as well as to be able to provide feedback information to the public. I think that one of the added values is the feedback to employers. Once we have the data and we’re able to evaluate it, we can feed it back and alert employers about trends we are seeing. To the extent that we can alert the employers that this is happening, then they can possibly self-correct some of these situations.
The third point is strategic enforcement and litigation. We need to work more closely with our attorneys and investigators early on in the process. We have a task force in place to make sure that we forge even tighter working relationships early on in the process when we’re actually looking at what kind of evidence we need. We need to examine the issues and understand how we can best use our attorneys as well as our investigators. We also want to look at systemic and class issues. I think that’s key, to look at what are the trends, what are the trends telling us, and how we can have the greatest impact on eliminating discrimination in the workplace.
At the center stage of our five-point plan is our mediation program. We’ve had tremendous success with mediation, and we want to build and expand upon that. The satisfaction rate both by the employers and the employees who’ve been involved in our alternative dispute resolutions is very high. So we would like to increase the number of private-sector mediation resolutions, and to that end we have now allocated in our budget funds for the use of external or contract mediators.
HR Magazine: Previously, the commission used contract mediators. Why did that practice stop?
Dominguez: I believe it was a budgetary issue, and the commission went with the agency’s internal mediators. And by all accounts our internal mediators are highly regarded and are individuals who’ve earned the trust of both parties. But some employers are still a bit reluctant to use an EEOC mediator, so by using outside mediators we can give employers a better sense of comfort. Well, I’m all for that. We are seeing an increase in the number of charges going into mediation because it takes significantly less time to resolve the complaint—around 84 days as compared to an average of 182 days—for a charge resolution through the traditional process. We want to make sure that we take as much advantage of the mediation program as we can.
The fifth and final point of the plan is to ensure that the EEOC practices what it preaches and becomes a model workplace. We want to have the best mediation program internally. We want to have the best way of educating our own employees and our own managers to model the kinds of practices and behavior that we want to see exist in the private sector in the workplace.
HR Magazine: Some critics have said the EEOC is out of sync with the modern workplace and the current needs of employers. Is the five-point plan really a way to get the agency back into sync? And how do you respond to these critics?
Dominguez: I would say that the importance and the impact of EEOC is as real today as it was 36 years ago. I think what the commission needs to be aware of and work hard to do is make sure that we keep pace with the workplace changes. That is the ultimate goal of our new strategic plan.
The workforce and how we go about working is much different today than when the EEOC was created in the mid-1960s. We now have a much more mobile workforce; we have job-sharing arrangements, we have more part-time workers and we have telework arrangements. So the agency’s mission is to ensure nondiscrimination while all these workplace activities shift and change.
The relevance and the importance of alerting employers that discrimination still exists in the workplace is a mission that I wish we could say is no longer necessary. Yet if you look at the numbers, we believe, even with the approximately 80,000 charges filed last year, that we’re basically just scratching the surface of the problem. There’s a whole world out there of individuals who believe deep down or maybe even know that they have been discriminated against but they will not come to the EEOC to file a charge because they’re afraid of losing their future opportunities and being blackballed. I refer to these people as the real discreet majority. I do believe that there’s a whole group of professionals out there who need to be helped. And the EEOC needs to use its communications, expertise, alliances, to show that we can help, and we really need to do more to promote that idea. I strongly believe that the agency’s mission is as vital and as critical as it’s always been.
Bill Leonard is senior writer for HR Magazine.