EEOC Chair Navigates Rough Political Waters

By Bill Leonard Jul 6, 2012

When President Barack Obama used a recess appointment in April 2010 to make Jacqueline Berrien chair of the Equal Employment Opportunity Commission (EEOC), it was no big surprise that the appointment stirred up some political controversy. What has come as a surprise to some observers is how since then Berrien has been able to steer away from controversy, even as the commission has issued some far-reaching and long-anticipated regulations and guidances.

There have been criticisms and complaints, but more often than not the EEOC has operated with bipartisan support in the very divisive political atmosphere of Washington, D.C.

In November 2010, the commission adopted the final regulations of the Genetic Information Nondiscrimination Act (GINA) with a unanimous vote, and in March 2011 it issued long-awaited regulations for the Americans with Disabilities Act Amendment Act (ADAAA) with bipartisan support. During Berrien’s tenure as chair, the EEOC has seen the number of workplace discrimination claims filed each year approach 100,000, yet during the same period, the commission has seen the number of pending cases decrease. Berrien recently took time to discuss her work as chair of the EEOC in an interview with SHRM Online. She spoke about how she has worked and continues to work on building better working relationships with employers and HR professionals.

How has the recent resignation of Commissioner Stuart Ishimaru changed the dynamics of the EEOC?

First, I would like to acknowledge the contributions he made as a member of the commission. His service to the EEOC and the nation has been extraordinary. He was a terrific colleague, and all the commissioners have expressed publicly and privately how much he will be missed.

So, we are now down to four members of the commission, but it is not unprecedented or unusual for the commission to be at less than full complement. With the commission’s make-up and staggered terms, there is the potential for one commissioner to depart the agency every year. Therefore, the commission has a long history of working under many different configurations. As Congress intended and by statute, the commission has a bipartisan make-up and through the years the EEOC has learned to operate in a bipartisan manner in varying configurations and with many different leaders. I am proud to say that I have continued this tradition of bipartisanship.

The vast majority of the actions and decisions that this commission has made, since I became chair, have been done on a bipartisan basis. Just to name a few examples, the GINA regulations were passed with unanimous support of the commission, and the ADAAA regulations also received bipartisan support from the commission. In addition, the commission’s new strategic plan for the years 2012-2016 was adopted on a bipartisan basis, and our recently released guidance on the consideration of arrest or conviction records was approved with a bipartisan vote. So, even before Commissioner Ishimaru left, we had a great deal of bipartisan cooperation, and I expect that to continue. On a day-to-day basis, this commission operates in a very collegial manner. I have worked hard to maintain that, and I respect tremendously what all my colleagues bring to the table.

I really do take pride in the fact this this commission has such a diverse set of backgrounds. With those diverse backgrounds, we are able to bring to the table many different perspectives, and I believe this enriches and enlivens our work as a commission.

What do you think the main takeaway from the recent EEOC guidance on criminal background checks should be for employers and human resource professionals?

I’d like to say that I appreciate this opportunity to speak to you and then ultimately to your readers and all the people who are affiliated with SHRM [the Society for Human Resource Management]. Certainly, we want to make sure that we are responsive to and help educate all parts of the public about the work of the commission.

First of all, this guidance should not be new or unfamiliar territory for employers and HR professionals. The commission has a long history of speaking on the subject of when and how the use of arrest or conviction records can run afoul of Title VII. At least since 1969, there have been complaints filed with the agency which have questioned the use of these records in employment decisions. And it was in the late 1980s, during the tenure of Chair Clarence Thomas, when the commission first issued a guidance on this subject.

The guidance that the EEOC adopted in April 2012 is an update on guidances previously issued on this subject. In many ways, the most recent guidance reinforces and reaffirms the principles outlined in previous guidance documents. The new guidance does expand in explaining exactly how this should apply in current situations and circumstances of today’s workplace. One thing that the commission recognized in issuing the new guidance is that the consideration of arrest or conviction records in hiring is not illegal per se.

We do not prohibit the use of arrest or conviction records in employment decisions. But the commission has consistently recognized specific uses of that information can be illegal. I would like to refer anyone interested in finding out more to check the EEOC’s website. We have some tremendously useful material there that explains this guidance in full and in layman’s terms.

The commission recognized there are two circumstances which could generate problems about the way arrest and conviction record information is used. The first is if the information is used differently for applicants or employees who are similarly situated. The legal term or concept is disparate treatment.

For example, let’s say you have two people apply for a job who have similar records of arrest and conviction, and one is treated favorably while the other is treated unfavorably. And if information from the criminal background check was used to justify the hiring decision, then this could be a situation in which an employer could run afoul of Title VII under a disparate treatment theory.

The other situation that we outline in the guidance and explain through a series of examples in the guidance is disparate impact. We know that there is a significant disparity between different racial groups in terms of the incidences of arrests and convictions. In light of that disparity, the responsibility of employers is to show that the use or proposed use of information from arrest or convictions records is job-related and consistent with business necessity. What we have outlined, and again this is not a new standard, is that employers ought to consider several factors in determining whether the use of an arrest or conviction record would meet the job-related and business necessity standards.

The considerations are the nature of the crime, the time that has passed since the criminal conduct occurred and the nature of the job in question. We also encourage employers to provide explanations to any candidates who are excluded from a hiring decision based on their arrest or conviction records. Sometimes arrest and conviction records are erroneous or inaccurate—especially when you’re dealing with common names.

In a nutshell, through additional examples and additional applications of the ways information is obtained, we have tried to make it even clearer how Title VII applies to these situations and how employers can structure their decision-making processes to avoid any conflicts with Title VII.

A little bit of controversy did surround the commission’s adoption of the criminal background check guidance, and there were several complaints about the lack of opportunity for public comments. Would the EEOC consider adding or extending a period for public comments in the future, even though it’s not required for guidances?

We have met and will continue to meet all legal requirements for any commission actions. But the commission has also gone above and beyond what is legally required. As you know, the commission conducts public meetings, and since I have been chair the commission has held close to a dozen public meetings on a range of topics.

When the commission met in July of 2011 on the specific subject of employers’ consideration of arrest or conviction records, we noted that the commission was convening to examine the existing guidance and to consider the potential need to update it. During that meeting, we heard from a wide range of witnesses, including employers as well as employee representatives, and that’s been typical of every commission meeting during my tenure.

We also had the benefit of a process that provides a 15-day comment period after public commission meetings. This allows any interested members of the public to weigh in on the subjects that the commission addressed during the meeting. And we received 300 comments on the subject of arrest-and-conviction records. So, we certainly were not without a great deal of public feedback and input on this issue. Members of the commission meet regularly with stakeholders, and this is a way that organizations like SHRM have provided feedback to me and other members of the commission. We encourage that and benefit greatly from this kind of input as well.

We have a variety of ways that we solicit public input and feedback to ensure that we are obtaining the views of interested members of the public about the work of the commission. So we are not only honoring the spirit of open government by the letter of the law, but we are actually honoring this spirit in many different ways including ways that take advantage of technology such as the commission’s website.

Another much-anticipated guidance on reasonable accommodations under the ADAAA was set to be rolled out with the arrest or conviction record guidance. However, the commission chose not to issue the ADAAA guidance. What happened?

We did include reasonable accommodation as an item for discussion in the public notice for the commission’s meeting in July 2011. Ultimately, we did conclude that we needed and wanted additional time to try and develop it. Honestly, I think this is a good example of how the process works. I have been in many public forums where I am often asked: “When will fill-in-the-blank happen? When will the commission do this?”

When issuing guidances and regulations, it is an uncertain proposition, and it’s difficult to say when things will actually happen. We take very seriously getting public input through the processes that I have described and through our stakeholder and public meetings. We collect and review information from written comments and one-on-one meetings as well as live testimony provided to the commission.

So the commission takes all this information into account, which we review and examine. Also we take very seriously our responsibility to get it right, and sometimes that means it doesn’t happen as quickly as many people might hope. But ultimately, we know that it’s very important for us to get it right.

I think this is an excellent example in which we decided to look at our existing guidance and see how we could develop some improvements. After considering the information we had gathered, we concluded that the guidance would benefit from additional time. So the commission made the decision to move ahead with just one guidance this spring, even though we had anticipated that we might have had two guidances prepared and ready for release.

Will the systemic litigation initiative continue as a high priority for the EEOC?

The systemic initiative, which focuses on the agency’s investigation and litigation processes, grew out of the EEOC’s 2006 Systemic Task Force Report. The commission adopted the report under the leadership of Chair Naomi Earp and then Vice Chair Leslie Silverman. Silverman led that task force and did a tremendous job in collecting input from a wide range of employees of the commission as well as external stakeholders about the work of the EEOC to address systemic discrimination.

The findings of that task force are still the guiding principles of the commission’s systemic program. The key principle is in order to have the greatest effectiveness as a law-enforcement agency this commission must devote resources in addressing systemic discrimination—which are situations affecting a broad swath of industry and multiple employers and practices impacting many employees and parts of the workplace.

Addressing and attempting to end systemic discrimination is very much part of the legislative history of Title VII, which guides the mission of this agency. I believe that it is just as important now, as it has been throughout the EEOC’s history, to be able to address individual instances of discrimination and ultimately as a matter of efficiency to be able to address and to direct resources to areas where a change in policy or change in practice could have a broader impact in the ways that workplaces operate.

It is also important to note that we are committed as an agency to the importance of prevention through outreach and education efforts, which promote voluntary compliance in workplaces across the country. Certainly with our relationship with SHRM and similar groups, this has been and continues to be a high priority for this agency. In our recently adopted strategic plan we have identified as part of the agency’s key strategic objectives the need to conduct outreach and to provide education that will help prevent acts of workplace discrimination.

Over the past few years, record numbers of discrimination charges have been filed with the EEOC. What do you think is driving this increase in charges, and what have been the top challenges for the agency in managing these record number of charge filings?

It’s hard to say exactly why people do file charges with the EEOC in the first place. It’s impossible to speculate what the motivation is exactly and what causes the number of charges filed to rise and fall with the agency. There’s a whole host of reasons, and we really can’t point to one or two specific reasons.

We do track trends and see if there are more charges filed for particular types of discrimination or if there are more or fewer charges filed in a particular region of the country. Those are trends that we certainly track and try to understand.

With that being said, one thing we do know is that the number of laws that the EEOC enforces and types of discrimination that the agency addresses have expanded consistently since the agency first opened its doors in 1965. So we have expanded from the original focus of Title VII to protect workers from discrimination on the basis of race, color, creed, national origin, ethnicity and sex to protect workers from discrimination on the basis of age, disabilities, genetic and medical information. Certainly the substantive expansion of the agency’s responsibility could reasonably lead to a change in the number of charges and an increase in the number of people seeking help from the EEOC.

Both technology and outreach have increased public awareness about what the agency does and have raised public awareness about the protections that the laws provide. It is a goal of the agency’s outreach program to raise awareness, and as a result we may be more accessible and the public is more knowledgeable about practices that could be instances of discrimination.

Some people have guessed or hypothesized that the tough economic climate could be a reason for the increase. But I’m not entirely sure that it is borne out in the nature of charges filed with the agency. If that were true, then we would expect to see many more complaints about hiring discrimination. I’m not sure that’s so true.

While I think there are many hypotheses about what’s happening, our mission as an agency is to end and remedy discrimination. And one of the goals of this agency is to understand better why certain types of discrimination persist and recur. Our work with groups like SHRM is so valuable, because we are receiving feedback and different perspectives as to why certain types of discrimination persist and what more we can do to address them and prevent them in the first place.

I have asked Commissioner [Victoria] Lipnic, and she has agreed, to look at the agency’s work to address and prevent sexual harassment and to think about anything more that the commission should do to address this issue. I think examples like this show that we continue to be very concerned and are constantly working on ways to reduce the number of charges filed with the agency. It is a huge challenge, but in light of the fact that the number of charges filed with the agency increased in fiscal year 2011, we were still able to reduce the number of pending charges by 10 percent.

As chair what is your vision for the future of the EEOC?

I would like to see the commission continue to be more efficient and effective in enforcing employment laws. I believe that this agency has contributed immensely to the welfare of the nation and to the vibrancy of our economy. The EEOC has opened up doors to employment opportunities as Congress intended four decades ago. I am honored to be a part of leading this agency in the 21st century as we work to fulfill the mission of ending and remedying employment discrimination.

In the 21st century, one of the things we are challenged to do, even to a greater extent, is to identify discriminatory practices that persist and recur. The next step we must take is to move from just addressing these recurring violations and to find ways that actually end these practices.

We have had some very interesting and important discussions in the commission about what more we can do to address issues like pregnancy discrimination and what more we can do to raise awareness. And we have talked about ways that the commission can ensure that a practice like human trafficking does not continue. We are working very closely with partners in the federal government, particularly the Department of Justice and the Labor Department, to reach these goals. We are also working extensively with partners in state and local governments and are lucky to have partners like SHRM and to receive input from HR professionals, which has been invaluable to me as chair.

With these partners, we are striving to ensure that private-sector and federal government workplaces as well as local and state government workplaces are open equally to everyone who is interested and able to work and that there are no unnecessary barriers to entry or advancement in the workplace for any person. Ultimately, this is what the laws of our country require.

Bill Leonard is a senior writer for SHRM.

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