HR Magazine: Legal Trends

By Cari M. Dominguez Oct 1, 2007

HR Magazine: October 2007

Workplace Reality, Federal Expectations

Reflections of a former EEOC chair

A year after I left office as chair of the U.S. Equal Employment Opportunity Commission (EEOC), I have had some time to reflect on what I might have done differently as a senior HR professional in various positions in the private sector had I known then what I know now.

Much can change in five years, not just personally and professionally but across the globe. I'm still absorbing and processing the full impact of the pivotal and dramatic events that occurred during my five years at the commission. These milestones ranged from unprovoked attacks on our homeland, to global conflicts, to explosive demographic shifts and technological advances, to the full realization that globalization truly is here, not just a notion but rather the way in which we now operate.

The old adage "you stand where you sit" grew in meaning as I witnessed these spectacular changes. Putting on my "HR hat," I often thought about the multiple pressures and expectations that HR professionals now face.

You have to deal with the myriad of federal, state and local laws and regulations that affect your organizations' compliance and legal standing. You also have to impose tighter employment screening processes to eliminate potential workplace threats, distribute the workforce to prevent exposure in the event of another attack, invest in backup data systems, design emergency preparedness plans, sensitize management on the changing face of diversity, use enabling technologies to promote flexible working arrangements, reduce costs by outsourcing, and develop talent and succession plans on a global basis.

I wore my "EEOC hat" while all these changes unfolded following the Sept. 11 attacks. Overnight, our priorities changed. I had to lead the agency out of its comfort zone. That's not easy in the government or the private sector.

My tenure as chair of the EEOC brought home to me the fact that some moments nevertheless require nothing less.

Quick Shift

In August 2001, I became chair of the EEOC. After the Sept. 11 attacks, we had to focus on an area totally unanticipated when I laid out my administration's priorities upon assuming office. Suddenly the focus was on preventing workplace discrimination, harassment and backlash against innocent employees and applicants for employment who were, or were perceived to be, Arab, Muslim, Middle Eastern, South Asian or Sikh. We created a new tracking code for charges associated with this issue and watched the numbers on that type of charge skyrocket.

Subsequent commission meetings focused on another area of vulnerability: the development of emergency preparedness and evacuation plans that contained procedures to identify individuals who may require evacuation assistance because of a disability or medical condition.

Our focus was external even as we dealt with our own internal tragedy: the destruction of our New York office, which was located on the 18th floor in Building 7 of the World Trade Center. Our HR staff members worked diligently and closely with line managers in providing assistance and counseling support to our own affected employees as we worked to promptly restore our presence and service to the New York area.

Diversity's Changing Face

Some changes are immediate and apparent, but others are more gradual and easier to overlook.

As EEOC officials faced the more obvious challenges before us following Sept. 11, there were other challenges to address involving gradual changes to the face of diversity and manifestations of discrimination. These changes produced a host of legal trends that could not be ignored and also required a much more focused response than business as usual.

Disability and age discrimination charges were on the rise, as were retaliation, pregnancy-discrimination and harassment charges. Field investigators observed an increase in reported incidents of color and accent discrimination, as well as same-sex harassment and harassment of teens in the workplace.

The human genome project, which decoded our DNA structure, gave way to a new wave of potential em-ployment law issues, such as genetics discrimination.

Unemployment among individuals with severe disabilities continued to be unacceptably high, even with enabling technologies and federal work and transportation assistance initiatives.

Similarly, rising immigration trends and explosive demographic growth of certain minority group members have caused tension across and within groups. Investigators from different regions of the country have continued to report incidents where groups from one nationality of origin allege exclusionary treatment by groups from another nationality of origin, even as they fell under the same umbrella category of "Hispanic," "Asian," "American Indian" or "black."

A recent case involved charges of discrimination by black applicants who were denied opportunities by African immigrants preferring to hire African nationals. Civil rights organizations have worked hard to keep a semblance of unity among all minority group organizations. But challenges exist, and the reality is undeniable.

Living Outside the Box

However, a new generation of workers has emerged, a generation that no longer fits -- or wants to fit -- in a particular demographic box. It is known as the "Tiger Woods generation" -- individuals who resist identifying themselves as belonging to a particular racial or ethnic group, because their backgrounds are blends of races and ethnicities.

More and more, entrants into the workplace are refusing to self-identify with any one or more particular race or ethnicity, leaving the employer with the daunting task of having to figure it out through visual observation. Such an effort leads to inaccuracy and imprecision in reporting, yielding results that are suspect and unreliable.

Still, employers are required to account for 100 percent of their workforce demographics and report it in the EEO-1 form, regardless of how those boxes got checked, while federal policies require the government to collect the data and make some general sense out of it.

As head of the EEOC at numerous high-level public policy discussions, I found myself drawing on my HR experiences to provide a practical perspective to the deliberations, only to learn that I was the only individual in the room ever to have completed the EEO-1 form.

Some even insisted on creating a report that would have required employers to break out their workforce into 62 different categories of race, gender and ethnicity -- a recommendation that was rejected. In theory, it arguably made sense. But imagine the impact such a requirement actually would have had in terms of burdensome reporting, costs and employee relations, not to mention how little, if any, value the information would have.

The reality of unlawful discrimination in the workplace nevertheless has become more complex. With the fusion of races and ethnicities comes a fusion of allegations, what is now called "intersectional discrimination," or allegations of discrimination that can be based on multiple grounds: race, gender, religion, disability, age, color and/or national origin. In fact, women of color represent 60 percent of the charges now filed by women in general. Those charges contain multiple bases of alleged discrimination, not just gender.

At the same time, the commission finds some form of merit to the allegations in 20 percent or less of all the charges filed, leaving 80 percent of the allegations open to causes more typically dealing with poor management practices (e.g., failure to communicate, follow established procedures and provide honest feedback, etc.) than exclusionary treatment.

Beyond Your Comfort Zone

So what are the lessons learned as chair of the EEOC?

A number of impressions come to mind. My sense is that, left to their own devices and designs, the government and private sector prefer to operate in their "comfort zones," along separate tracks, interfacing when necessary but more comfortable in the roles that set them apart rather than the roles that unite them. On many occasions, I heard employer representatives express reluctance in showcasing their EEO/diversity initiatives before government officials, fearing they might get targeted for an investigation or audit.

"I love my country, it's my government I'm afraid of" is a T-shirt expression that resonates in some quarters. "Let's not bring attention to ourselves" is another corporate mantra.

Similarly, I sensed reluctance to associate outside government circles on the part of many officials for fear they might get co-opted or have their enforcement role compromised. "We are a law enforcement agency, always on the prowl, and want to keep it that way" was the cultural message.

I recall inviting a senior commission official who had been with the agency for more than 30 years to an employer conference where I had been invited to speak. It was his first such outing. He indicated that, outside of investigations or enforcement-related activities, his only interaction with employers was during the annual, commission-sponsored technical assistance seminars conducted in his region. He had never attended an employer-sponsored program and had not heard the issues presented from an employer perspective until that day.

Both extremes get in the way of realizing our social and corporate objectives, and create schisms that are harmful to our collective efforts. Forty-three years since the passage of the Civil Rights Act of 1964, billions of dollars (according to the Gallup organization, about $20 billion out of our economy each year) are spent on work-related differences and disputes. And hundreds of millions are spent on diversity-related programs that often do not yield the results intended. So, it behooves us to find new ways to reach our desired goal of workplace fairness, access and inclusion.

Barriers at Mom-and-Pops

This becomes even more important with the growing number of small businesses now fueling our economy, but lacking in infrastructural resources to ensure inclusive workplaces. Many of these fast-growing businesses are in ethnic communities, or geared toward ethnic markets, and are owned by immigrants or foreign nationals, making the challenges of enforcing our laws even more difficult. I recall a case involving an Asian market in the Chinatown section of a particular city. This small-business owner had job announcements written in Chinese and posted on the store's windows. The announcements specifically asked women to apply for certain jobs, such as cashiers, while men were directed to other forms of employment.

Help-wanted ads based on gender -- prevalent in the 1960s and 1970s and ruled to be discriminatory -- continue to exist, particularly in certain areas where the culture of the native lands prevails among customers and merchants, regardless of the standards of employment long established by our laws.

As immigrants become successful entrepreneurs in our country, there are risks involved regarding the introduction of cultural practices that may exist in their countries of origin but that have been long rejected by our nation's values. I wish I could say this was an isolated incident, but it wasn't. Examples abound.

Out of the Time Machine

If I returned to my days as an HR professional, what would I do differently? These three things, for sure:

Educate. While the laws don't change, business environments do. It is critical for employers to reach out to their government representatives to keep them informed of industry changes, issues and factors converging on their workplaces. Inviting officials in for general presentations or asking to attend their staff meetings to present company overviews can be an effective way of expanding on industry or company knowledge.

Exchange. Overcoming suspicion, distrust and preconceived biases on both sides must be a shared objective, and it can be accomplished only by building relationships and understanding. Create a regular forum where both sides can come together to share concerns and exchange views and ideas in a spirit of cooperation. Regularly scheduled sessions can serve to enhance mutual understanding without compromising roles and responsibilities. Industry liaison groups are a good example of this exchange mechanism. Use them.

The benefits associated with building a strong foundation of mutual understanding far outweigh any misplaced apprehension one might have about becoming more candid and sincere. Perceived risks are far more imaginary than real and clearly are worth taking if good will and transparency can help establish you as a proactive leader and promoter of diversity and sound employment practices.

Engage. "To occupy the attention or efforts of a person or group" is an apt definition for building alliances and strengthening efforts. Getting both sides involved and actively engaged in finding solutions to emerging issues -- before they become litigious matters -- improves morale and productivity, and avoids costly and protracted litigation that carries limited value. Monetary benefits after the fact rarely, if ever, erase the emotional pain and resentment associated with lawsuits. To the extent possible, seek out the expertise and engagement of officials who can provide you with assistance and perspective.

During my "HR years," I had many opportunities to interact with state and federal officials. Yet I often found myself tongue-tied for fear of saying something that would come back to haunt me, or so I thought.

What lost opportunities! I now see how much my efforts would have been enriched by extracting suggestions and ideas from those who had a much broader perspective than I did -- those who dealt not with a single company but with many companies, across industries. They had seen the good, the bad and the ugly, and could have helped me avoid pitfalls and replicate successes.

Reach New Heights

After all my years in the private and public sectors looking at similar issues through different lenses, I've come to realize that often what two sides have in common will outweigh the differences between them. People are people no matter where they work, and human dynamics can be complex and perplexing.

Federal agencies are dealing with the same marketplace pressures, oversight issues and convergence of external factors that face private-sector employers. Discrimination complaints also abound in the federal sector, with tens of thousands being filed annually. Managers and employees in both sectors can relate to these workplace dynamics.

The issues I faced during my years in HR roles were no different from the many I also faced as chair of the commission. But the approach to these issues must change if we are to advance our workplace principles to a higher level of success. A consistent, sustained and concerted effort to educate, exchange views and engage one another in our shared objectives will promote greater understanding and improve performance.

In the process, we will earn mutual professional respect, ease relational tension and, indeed, evolve.

Editor's Note: This article is not intended as legal advice; for specific factual situations, please seek qualified employment counsel.

Cari M. Dominguez served as chair of the U.S. Equal Employment Opportunity Commission from August 2001 to August 2006. She is a consultant in Washington, D.C., and corporate director of Manpower Inc.

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