2004 WL 596577 (F.D.C.H.)

Federal Document Clearing House

Verbatim Transcript

March 25, 2004

House of Representatives

Appropriations Committee; Commerce, Justice, State and Judiciary Subcommittee

Committee Hearing

U.S. Representative Frank R. Wolf (R‑VA) Holds Hearing on EEOC

HOUSE COMMITTEE ON APPROPRIATIONS: SUBCOMMITTEE

ON COMMERCE, JUSTICE, STATE AND JUDICIARY HOLDS

A HEARING ON EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

APPROPRIATIONS

MARCH 25, 2004

SPEAKERS:

U.S. REPRESENTATIVE FRANK WOLF (R‑VA)

CHAIRMAN

U.S. REPRESENTATIVE HAROLD ROGERS (R‑KY)

U.S. REPRESENTATIVE JIM KOLBE (R‑AZ)

U.S. REPRESENTATIVE CHARLES H. TAYLOR (R‑NC)

U.S. REPRESENTATIVE RALPH REGULA (R‑OH)

U.S. REPRESENTATIVE DAVID VITTER (R‑LA)

U.S. REPRESENTATIVE JOHN E. SWEENEY (R‑NY)

U.S. REPRESENTATIVE MARK STEVEN KIRK (R‑IL)

U.S. REPRESENTATIVE C.W. BILL YOUNG (R‑FL)

EX OFFICIO

U.S. REPRESENTATIVE JOSE E. SERRANO (D‑NY)

RANKING MEMBER

U.S. REPRESENTATIVE ALAN MOLLOHAN (D‑WV)

U.S. REPRESENTATIVE ROBERT E. (BUD) CRAMER (D‑AL)

U.S. REPRESENTATIVE PATRICK J. KENNEDY (D‑RI)

U.S. REPRESENTATIVE MARTIN OLAV SABO (D‑MN)

U.S. REPRESENTATIVE DAVID R. OBEY (D‑WI)

EX OFFICIO

WITNESS:

CARI DOMINGUEZ

CHAIR

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

WOLF: Now, the hearing will begin. We're pleased to have before

us EEOC. My full statement will appear in the record. I will

recognize Mr. Serrano.

SERRANO: Just to welcome you, and we're ready to help in any way

that we can.

WOLF: And why don't you just begin. Your full statement will be

in the record, so you can summarize and do what you see fit.

DOMINGUEZ: OK. Well, thank you very much. Good afternoon, Mr.

Chairman and Congressman Serrano. Really, it's a pleasure, and we

very much appreciate...

WOLF: You know, everyone rolls their Rs with that.

DOMINGUEZ: Serrano.

WOLF: These people are good.

SERRANO: In the last couple of days we've had Mr. Reyna, Mr.

Vaharto, Mr. Dominic, and they all roll their Rs. We're trying to

roll Wolf but it's not...

WOLF: And they call me Poncho Lobo.

(LAUGHTER)

SERRANO: Paco. Paco Lobo.

DOMINGUEZ: Paco Lobo. OK. Well, I'm working with son's R which

is a bigger challenge. I know the feeling. But, first of all, I want

to let you know how much we appreciate the opportunity to come and

discuss our budget request with you and also to talk about other

aspects of our program operations. And as you mentioned, Mr.

Chairman, we do have a longer statement that we're going to submit for

the record.

WOLF: Sure. Without objection.

DOMINGUEZ: I'm accompanied this afternoon by our chief operating

officer right behind me, and we also have a number of EEOC staff

members who are providing value and moral support as necessary.

This is my first time testifying before the subcommittee. I've

chaired EEOC but certainly not my first time meeting with you. And to

you, Mr. Chairman, and to Congressman Serrano and all the members of

this subcommittee, I want to personally express our appreciation for

your continued support of our work and especially for your efforts

last fiscal year to ensure that the Commission had the necessary

resources to address its budget challenges. And the supplemental

funding that you provided was critical to support our mission and our

employees.

As you know, this is our nation's 40th observance, anniversary

observance of the passage of the Civil Rights Act of 1964 which gave

birth to the Commission. And the EEOC is very proud of its role in

doing that, but I want to say that even after 40 years our work is not

yet done.

Just to give you a brief overview, this last fiscal year the

Commission received over 80,000 charged of discrimination. About 35

percent of those charges were race related, about 30 percent were

gender related. The two fastest growing segments of our workload are

age discrimination and disability discrimination. Age is about 24 of

our workload, disability is about 19 percent, 10 percent national

origin and that spiked up after September 11 and about 3 percent

religious discrimination. And among these are racial harassment cases

that are extremely egregious. We also have seen a trend toward sexual

harassment of teenagers working at fast‑food establishments and

backlash discrimination against members of certain ethnic and

religious groups in reaction to all the world events.

WOLF: Such as? Can you elaborate?

DOMINGUEZ: Certainly. Well, we had one charging party who was a

receptionist at a medical ‑‑ a doctor's office, and she wore the

outfit, religious outfit and she was summarily fired. They told her

that she was perceived as a threat to the patients and that...

WOLF: And how was that case litigated and what was the outcome?

DOMINGUEZ: I don't know exactly if that case has yet reached the

litigation stage, but I know it's gone through mediation and it's gone

through the investigation. We have had about three national origin,

religious discrimination charges stemming from 9‑11 that have actually

reached litigation stages. One was a pilot. In fact, he was in the

Fiji Islands but he was perceived to be of American background, and he

was excellent performance record and was fired. We prevailed on that

one.

WOLF: Excuse me for interrupting.

DOMINGUEZ: The other point I wanted to make is that even after

40 years the trends that we're seeing, it's always a new horizon for

the Commission, and the trends that we're seeing right now is that

after 40 years we have done a pretty good job of working with large

companies, companies that have very sophisticated in‑house Human

Resources operations and outside and inside counsel. The type of

charges, the majority of the charges that we're now seeing are coming

from mid‑size and smaller employers, smaller size employers, so that's

a whole new thing for us, which requires a lot of outreach and a lot

of education, because these employers just don't have the resources

that Fortune 500 companies do, so it's putting a lot of pressure on

the Commission to do more outreach and to do more compliance

assistance and technical assistance.

So where as before we were really reacting heavily to the charge

activity that was coming in, and we still have already 1,000 charges

that are coming in, we are now looking at that as a reactive part but

at the same time proactively assisting employers to educate them if

they hit the threshold mark that makes them subject to the statute.

WOLF: What is that threshold?

DOMINGUEZ: It's 15 employees. ABA is 20. So it's against this

backdrop that I wanted to talk to you briefly about the budget request

that we have presented to you. As you know, approximately 80 percent

of the Commission's budget is fixed expenses ‑‑ rent and salaries ‑‑

and another 10 percent is devoted to state and local activities. So

pretty much 90 percent of our budget is fixed. We have a 10 percent

balance for a portion of travel and litigation support and those kinds

of activities. And this structure has left little room to weather

unforeseen conditions, unexpected, unfunded expenses or to respond

quickly and effectively to change.

When we looked at the situation we realized that some of the

costs that are driving our traditional budgetary programs would fall

short toward advancing the president's management agenda, an agenda

that puts our customers first and that is performance driven and

results oriented. And so have embarked in an expensive and

comprehensive operational review that we hope will bring about greater

efficiencies in our delivery of services while enhancing our customer

orientation.

And let me just outline very quickly some of the steps that we

have taken to do that. The first thing we did was commission the

National Academy of Public Administration to conduct a study of our

structure and program delivery system. Among its findings, the

academy panel concluded that, quote, "EEOC's current structure, which

was designed for 20th century programs and technology, does not permit

to meet all aspects of its current mission, which now emphasizes

prevention and mediation in addition to enforcement. Nor does it

allow it to take maximum advantage of technology advances.

The panel also made a series of recommendations for improving

operational efficiencies and program effectiveness. The most urgent

of their recommendations involved the establishment of a national

contact center as a way to improve the quality, the access, the

consistency of services to EEOC's customer. They concluded that a

contact center would also serve as a way to collect data on a national

level, we right now don't have a repository, a place that we can find

out what are the national trends, what are the national public

concerns and then take that information and leverage it strategically

to target our efforts and introduce new programs.

They also made a series of recommendations to address

interrelated issues of organizational structure, budget realignments,

technology use, even capital and performance management. And since we

received that report about a year and a half ago, we have been working

our way through a number of those recommendations.

More specifically, to address the public concerns regarding

access to the Commission, we did convene an internal work group of

EEOC managers and field and headquarter staff members. And I asked

them to look at the feasibility of implementing a customer service

contact center. The work group has conducted extensive research into

this and concluded that a contact center would allow the Commission to

realize tremendous improvement in our service capacity and

effectiveness.

I've got Cynthia Pierre who was the district director of

Birmingham and she's now our deputy director in the Field Management

Services Office here in headquarters who is the point person

spearheading that project. By unanimous vote, the commissioners

decided to implement a contact center on a two‑year pilot basis; in

other words, to explore the concept of a contact center. And let me

also emphasize that no EEOC staff positions would be eliminated as a

result of this contact center whatsoever.

WOLF: So there would be no job loss.

DOMINGUEZ: Absolutely not, not on the record for that. The

second thing that we did was I asked our Office of the Inspector

General to conduct a review of our infrastructure including space

realization to determine if the expanded use of telework could help

EEOC achieve cost‑savings on other benefits. And the IG's report

concluded that it would and that much of the work done in EEOC's field

offices is actually quite well‑suited for frequent telework.

So this is all to say that we have been very aggressive in our

efforts to achieve savings, look for opportunities that will allow us

to build a sound financial management structure that hopefully will

prepare us to move forward.

Having done all of that, let me also say that even as we work

diligently to advance the president's management agenda, we have had

extremely good, very, very good program results in fiscal years 2003.

We reduced our inventory of private sector charges and federal sector

complaints. We also reduced processing times to an all‑time low. We

expanded outreach and education. Our mediation program has had

outstanding results, and we maintain a very high success rate in our

litigation work.

You have the numbers and measures of those results detailed in

the written testimony and the report that we provided you. But the

bottom line is that EEOC has brought relief to victims of

discrimination and has helped to improve the health of the workplace

by proactively preventing discrimination from occurring in the first

instance.

As it relates to our 2005 budget request, it really reflects the

continuation of a five‑year workforce planning and agency

repositioning effort that was begun this fiscal year. The request of

$350.8 million represents an 8 percent, that is $26 million, increase

over our fiscal year 2004 funding level and supports 100 additional

full‑time equivalency positions.

Our requested increase reflects the following interdependent

priorities. First, we have to increase our investment in people. Our

mission is people‑intensive, and our staffing needs are two‑fold. We

have over 50 percent of our current workforce retirement eligible, and

we have lost and will continue to lose critical employees to

retirement and other forms of attrition. And so without the

additional resources, the gains that have been made over the last

several years have now been sustained, in fact will be eroded. And

the inventory will once again balloon.

So we have to replenish the staff that we have lost over the last

couple of years. And while the replacement staff will enable us to

keep up with the inventory of charges that we receive, we want to get

ahead of the curve, we want to be proactive and to work with these

small and mid size employers before they actually have to access the

Commission and file a charge.

And I believe that the value of a peace programs and outreach and

education dictate that we augment our workforce with additional staff,

multifunctional staff, and that will permit us to respond to the

expounding needs of the public in all sectors. So our 2005 request in

funding to hire 100 enforcement additional staff members.

Secondly, we want to enhance of our services to the public by

improving our operations. The $3 million increase request we had

hoped to use to better serve the public. Our repositioning activities

worked, and we hope it will allow us to proceed with the

implementation of the National Contact Services pilot and make our

services more customer centered.

The contact center is going to provide a central point for

guaranteed, immediate, 24/7 access to the Commission in practically

language. We have, as you know, Mr. Chairman, a lot of the

individuals that use our services are not very proficient in English,

and we don't have a lot of staff that's bilingual, not only in Spanish

but in a lot of other languages that are now asking the Commission to

be proficient in.

So this is going to be a center that will have multi‑language

capabilities. We currently get over a million unsolicited calls

annually, and we think that's a very conservative number. We believe

there's a lot more than that, but that's what we've been able to

capture based on our in‑house study. And we believe that a contact

center would provide accurate answers to routine questions and resolve

many issues in one call.

We also want to expand our telework program in continuing our

efforts to serve and reduce our infrastructure costs and hopefully

improve our performance in productivity. We have about 30 percent of

our staff on one form or another of telework and very satisfied, high

performing, productive employees. So we really want to continue to

encourage our employees to use telework.

And, finally, our request increase is for firms to invest in

existing program initiatives, particularly two that I'd like to

highlight. One is the president's new Freedom Initiative designed to

expand opportunities for people with disabilities. And we have a very

exciting project that we're working with state governors on. It's a

best practices project identifying best practices at the state

employment level. We believe that's a huge opportunity for expanding

opportunities for people with disabilities. And so far we have

several governors who have signed on, and we would like to get to a

number of other governors and provide a report sometime in October of

next year for that.

And the other request is for increasing our mediation program,

which is the largest in the nation of its kind. We have had

tremendous success with mediation. We currently have over 500 local

agreements in effect, and nationally we have 28 large corporations

that have actually signed agreements to mediate any charge filed with

the Commission throughout the country. I'll be leaving next Friday to

sign another major agreement with a member of the automotive industry.

So we're getting a lot of the large employers to sign these

agreements.

So in conclusion, Mr. Chairman, the president's request for

fiscal year 2005 represents the needed resources that we need to

prevent erosion of the gains that have been made in recent years while

moving forward with new program initiatives and organizational

reforms. We appreciate your critical support and that of this

subcommittee, and, again, thank you for inviting me to testify here

today .

WOLF: Well, thank you. We have a couple questions. One, how

long does it take to resolve a case on an average basis? Average

time. I mean what is the average?

DOMINGUEZ: The average is 160 days, right? The average

processing time is 160 days, and we've been successful in bringing

that down because of mediation. Because it takes, I believe, about 86

days to resolve...

WOLF: Takes a lot of money too.

DOMINGUEZ: Takes a lot of money. Takes a lot of money, a lot of

resources.

WOLF: On the telework, I commend you for that. You might want

to go out ‑‑ there's a group in my district called Software

Productivity Consortium. They're out at the CIT Center out by Dulles

Airport. They have developed new technology as telecommuting and

telework, and the best agency that is ‑‑ I think the Railroad

Administration in the Department of Transportation and there's another

one in the Treasury Department, and my office can find out, we can

tell you...

DOMINGUEZ: OK.

WOLF: ... they, I think, are well over the 50 percent level.

They all use laptops. There's nothing magic about coming in when you

can be doing it at home. More productive, less time in traffic. So

you might want to have somebody that's going to work on this meet with

them to see what the latest technology is because I think that's

important.

If the funding were available, when would the center be up and

running?

DOMINGUEZ: Where we are right now, Mr. Chairman, is we are ‑‑ we

just went out with request for bids. The commissioners voted on the

concept of the contact center, and we're piloting it for two years, so

we're hoping to get the funding for next fiscal year. Part of the

funding request would get it started...

WOLF: Probably shouldn't sign any contracts, though, until the

bill passes.

DOMINGUEZ: No, absolutely. No. We would definitely keep you

informed and...

WOLF: And what would the cost be for operating it beyond 2006 if

you were to go... what do you think the yearly cost of it?

DOMINGUEZ: We're projecting $2 million to $3 million.

WOLF: Per year?

DOMINGUEZ: Per year to keep it going.

WOLF: How many people would be there? How many people would be

at the center?

DOMINGUEZ: We really haven't gotten that far yet. In fact, we

just had over 20 contractors come in and make proposals. What we have

evaluated is what it would cost us to do something in‑house, and that

cost just to get the technology, just to get the infrastructure in

place would be about $12 million, and that doesn't cover staffing.

And of course you know, Mr. Chairman, that technology becomes obsolete

the minute you buy it. So it would just not be an efficient uses of

our resources nor do we have really the expertise.

Our expertise is in investigating cases and mediating cases and

litigating cases, but we're trying to give brief access to the

Commission and at the same time find out what exactly are the issues

that are percolating out there so that we can come up with more ‑‑

working more efficiently.

WOLF: Fiscal year 2005 you're requesting $2 million for office

relocation costs, furniture, equipment purchase and employment

development. What is the current status of EEOC's workforce

repositioning? What steps will you be taking in fiscal year 2005 to

support staffing adjustments based on workload and the resources?

DOMINGUEZ: We have been working with General Services

Administration to identify opportunities. A lot of our leases our up

this year and next year. For example, our Washington field office, we

are moving the Washington field office, and we informed you of that

last November, moving it to headquarters, and that will help us save

about $500,000. So we're looking ‑‑ as leases come up and as we

increase our telework, we're looking for ways to reduce the fixed

costs relating to rent, which is significant, and we're projecting

possibly $7 million to $8 million savings as we move to space that is

more compatible with our work needs and do it more efficiently.

WOLF: Mr. Serrano?

SERRANO: Thank you. Let me ask you this...

WOLF: Excuse me, I'm going to go vote. You stay in position.

SERRANO: OK. This whole issue of e‑filing which is being

considered as an option for helping reduce workload and assisting for

local offices, could you tell the committee indeed if this is being

considered and what kinds of studies are being done to assure people's

needs will be met? Now, I must admit I'm concerned that those people

most vulnerable to discrimination ‑‑ the poor, the elderly, disabled,

limited English proficient and the illiterate ‑‑ will not find e‑

filing to be an adequate substitute for the one‑on‑one services you

currently provide. In fact, given the growing digital divide, e‑

filing may be a deterrent to some people in bringing forth a claim.

Now, I realize that there is a need to move into this new era

that we find ourselves, but sometimes the old ways work better to deal

with people's needs. So what can you tell me about this whole issue?

DOMINGUEZ: Well, e‑filing is a concept. You know, we file taxes

and we get information on social security online and those kinds of

things, so it's really a concept and maybe an opportunity down the

road for individuals who would want to do that. That is not on our

radar screen at the moment. Electronic filing is a concept that we

have thought about, we have explored, but you're absolutely right, it

would never replace direct access, it would never replace the in‑take,

for example, the walk‑ins and the in‑take activity that takes place in

our offices, in our field offices. So we have no plans to replace

that process, that direct process with this e‑filing.

But I do think as our nation becomes more comfortable and the

digital divide less divisive that perhaps it is something that the

Commission would consider down the road. Not now.

SERRANO: OK. So then any fears that that may replace your

personal contacts is not well‑founded.

DOMINGUEZ: That is correct.

SERRANO: OK. That's good to hear. Your budget proposal

includes a request for $3 million for workforce repositioning of which

$1 million is for, and I'm reading, "continued implementation of a

national contact center." This proposal presents a number of

concerns. In 2004, EEOC had proposed $5 million for workforce

restructuring. This increase was not provided in the final

appropriation. Your office received only inflationary increases for

personnel, benefits and space rental costs. Furthermore, the

conference report included language reminding your office that the

Committees on Appropriations should be kept abreast of any

organizational changes in accordance with Section 605 of the act.

Despite the language in the conference report, your office has

proceeded with plans to implement a national contact center, and on

March 9, 2004 published a pre‑solicitation notice seeking a contractor

to operate a national contact center. Now, first of all, I'm not ‑‑

and I don't know if you mentioned it in your statement ‑‑ I'm not

fully aware of what the contact center is or does. I have some idea,

but how about the whole issue of moving ahead without letting the

committee know that this fiscal it's going to happen or this is about

to happen?

DOMINGUEZ: Right. The concept of the contact center really is

to try to ‑‑ we believe a lot of ‑‑ many of our offices are very, very

good at capturing and recording information. So because of staffing

shortages, because of some old technology, because of some of the

buildings in which we're in we just don't have the capacity to capture

all of the inquiries. So we believe that we really are shortchanging

some of our citizens and residents who may in fact be unable to act to

the Commission.

So the whole focus of a national contact center is to improve our

quality of service, our customer orientation and to really try to

capture what it is that all working men and women in our nation are

concerned about. We just don't have a repository of that information

at this point, and I think we need to get that information. We need

to find out do we get more sexual harassment charges out of the New

England area or is it out of the west coast or racial harassment? And

what are the trends and how can we redeploy our resources to more

effectively deal? So it's just a piece of information of intelligence

that we need to use our resources, our limited resources more

effectively.

Having said that, let me assure you that we have no used any

funds whatsoever to proceed with the concept of the contact center.

What we wanted to do and that we have done with in‑house staff led by

Cynthia Pierre, whom I introduced a little bit earlier, was to explore

the feasibility, get some data, get some baselines, find out what our

colleagues at the Labor Department, for example, the administration,

and I personally toured their contact center that they used out in

Virginia.

How is that helping them further the mission of their agency?

That's the same thing we're doing. We've been at a fact gathering,

fact finding. The commissioners voted to explore the concept, but we

have not invested any money and we've not clearly because not only

seen your report but we have committed to making sure that we alert

you of any kind of possibility. Once we get all that information,

we'll certainly want to come and meet with you and let you know what

the options are.

SERRANO: But you said the Commission already has the proof to go

ahead.

DOMINGUEZ: To explore the concept. In other words, do some

research, go ahead and do some research and find out how many calls

are we getting. For example, we found out the work group that we

commissioned, which is made up of field and national office employees,

did some data collection and they went to our 51 offices and found out

that we get on a monthly basis about 86,000 calls. And so that's the

kind of thing that they have done, and the Commissioners voted to

approve the concept of proceeding with a contact center. We have no

funding earmarked for that, as you well know, Congressman.

SERRANO: Right. But, you see, some would argue that even with

what has happened so far ‑‑ let me backtrack a second and get somewhat

personal here. Your agency happens to be one of my favorites. I

really believe that you serve a major purpose. However, for a while

now, and you don't have to comment on this, your agency has been under

attack from its own government. There are some folks in the House who

would like it to disappear, and there are some people in the

administration who would like it to just go away. It presents a

problem to some people. That's why it makes me excited, and that's

why I support it, because it does go after wrong in our society.

So what I say to you I say, interestingly enough, not as a ‑‑ in

partisan way to attack you but rather to help you not be in a position

where there are more people in this Congress who would find more fault

to make your life more miserable, to make the Commission's life more

miserable. And one of the issues is that even what you present to us

will be perceived by some as restructuring. It's the first step

towards restructuring, maybe the second step to restructuring.

And you didn't clearly advise the committee as the report

indicates. And that will create a problem that people on one side of

the aisle who feel this is the beginning of an in‑house doing away

with the Agency or weakening, and then with others who don't like your

agency and want to find any reason to attack it. So it's just a

strange situation that you might have people upset at you for

different reasons but sort of bring everybody together.

So my question still is was there an intent at all to advise the

committee? When was that happening or was the just a disregard for

that?

DOMINGUEZ: Congressman Serrano, we actually did advise the

committee, letter dated November 20. We informed of the status of all

of the NAPA recommendations and their repositioning activity. So I

have a copy of ‑‑ but we did inform this committee of what we were

trying to do. We have a number of responsibilities, as you well know,

and, clearly, complying with the president's management agenda, which

requires us to be more customer‑centric is one of them.

At the same time, to address your concerns and your passion,

which I share, I need to know, I need to know what are the issues, and

I need to have that information so that I can come to meetings like

this and share that with you. And I'm afraid that right now my

efforts are being hampered by the lack of information. I just don't

have information about who's calling from Houston or New York.

And so that is an effort on our part to help improve the delivery

of our services, to identify areas where we can enhance our presence,

have a field office, have a couple of investigators, have mobile units

doing outreach. But we did inform you of what the process has been up

until ‑‑ including the fact that we have convened this internal

work...

SERRANO: I don't have that letter in front of me. Did you speak

about seeking a contractor to operate a national contact center in

that letter?

DOMINGUEZ: No. In fact, we informed the bidders, we said this

is all contingency planning, this is all in the event that we get

approval from this committee. What we are doing is trying to gather

information and a lot of things, that this will be subject to budget

approval as well as the commissioners' approval, but more importantly

your approval.

SERRANO: Right. Then all I can say to you, Ms. Dominguez, is

let's all be careful because on March 9 you published a pre‑

solicitation notice seeking a contractor and to me the site and the

sound of a contractor means major change. It doesn't mean just simple

change, it means major change. And while that letter from November

may say one thing, that solicitation notice puts you on another route

all together. And, again, I don't expect to convince you of this but

I'm not here to give you a hard time, I'm here to protect this agency

and this agency doesn't need to make any mistakes because there are

people on both sides of the aisle who would like an opportunity to

create a problem ‑‑ how many minutes do I have?

WOLF: You have three minutes.

SERRANO: I'd better go vote and I'll return.

WOLF: I don't know what he's talking about completely but...

SERRANO: A lot of people don't.

(LAUGHTER)

SERRANO: It's the story of my life.

WOLF: I sort of alluded to it and then I left. It probably was

not a good idea. Don't sign the contract before you act. Is that

what you were referring to?

SERRANO: Yes.

WOLF: Yes. You probably should have come up to the committee.

I know this Constitution is a pain in the neck and the balance of

power to Congress, and I know, I feel that way, I've got them too

sometimes. But it's really ‑‑ you probably should have come up, and

maybe you did, but we don't know where, but sit down with the

committee and say, "Here's what we're thinking of doing," and probably

have had a hearing first and see. I know you want to get started but

‑‑ so that's why I made the comment, don't sign the contract.

DOMINGUEZ: Right. And I mentioned to Congressman Serrano that

we informed all the bidders, said, "This is all contingency planning.

We're just trying to do some data collection assessing how much would

it cost, where it would be...

SERRANO: But you're going ahead. And, again, I'm not ‑‑ I don't

want to compare things but that's like ‑‑ we were asked to support a

war after all the troops had been moved into place. What do you do,

you bring them back home? You couldn't do that. So you have to be

careful how you present that, and, again, it will take years for you

to realize this but I'm really on your side. I mean the most

important piece of legislation passed in my lifetime is the Bill of

Rights Act. I'm in Congress because that law said that you had to

give Puerto Ricans specifically a chance in the south Bronx to have a

representative.

That's how I got to Congress. I mean I took a seat, I was held

by two other guys. Before that I remember ‑‑ that's how I got to

Congress. I take that very seriously. And so I know you're the

direct arm of that, and so anything I can do to strengthen you I will

do. A lot of people would like not to see you strengthened. So you

can't afford any mistakes because there are too many people who would

like to see you fall.

DOMINGUEZ: Appreciate it.

WOLF: EEOC is requesting approximately $23 million for mediation

in fiscal year 2005 to conduct over 8,000 mediations. Can you speak

briefly on the future of mediation as a tool to reduce charge time and

also the cost of a contract mediator, and if you could explain that a

little bit in comparison to an EEOC staff mediator.

DOMINGUEZ: The request for ‑‑ I don't know the actual amount ‑‑

but in any event, mediation resolutions were on an all‑time high last

fiscal year. We completed a lot more mediations, a lot greater

demand. One of the concerns that I have is that only 30 percent of

employers are participating in mediation, and so we've gone out to

find out how we can get more employers interested in participating in

mediation. One of the answers that have come out consistently is the

fact that sometimes they prefer to work with contract mediators

that...

WOLF: Who are the contract mediators?

DOMINGUEZ: They're individuals who are licensed. They're

professional mediators. They could also be pro bono.

WOLF: What are their hourly charges?

DOMINGUEZ: Eight hundred dollars.

WOLF: For?

DOMINGUEZ: For mediation.

WOLF: For the conclusion, whether it goes a day, whether it goes

an hour.

DOMINGUEZ: Oftentimes, a lot of these mediations occur in areas

that are outside of field offices, so it's a lot cheaper to get an

outside mediator to do that than it is to send one of ours for travel.

WOLF: Does the individual have a choice of the contract mediator

or a career person?

DOMINGUEZ: No. We typically assign the mediator to the party,

but if there's an issue or something, we're flexible and we're willing

to work with them. Oftentimes, again, if the mediation activity

happens to fall outside of an office area, then we would encourage the

use of an outside mediator.

WOLF: How is EEOC involving state and local fair employment

practice agencies in mediation? Are you shifting any of the work to

state and local?

DOMINGUEZ: For the first time last year, Mr. Chairman, we

actually involved them in mediation. This had been a practice that

had not been utilized before last year, but I decided to expand and to

have our FEPA partners, those that met the criteria. We want to make

sure that there's a firewall between the investigating unit of a FEPA,

Fair Employment Practice Agencies, and the mediation unit, and then

they meet the standards of quality that we would expect in the

mediation program. And so last year we had a pilot program and had, I

believe, nine people participating in that program.

WOLF: Nine. That was my ‑‑ what percentage of state and local

FEPAs are incapable of doing mediation? Is there a formal contract

you sign? Is there an agreement? Do they have to say what their

training is? How do they get certified to do this?

DOMINGUEZ: Nick, would you like to respond to that? Let me

introduce...

WOLF: Sure. Would you identify yourself for the record?

INZEO: Yes, sir. Nicholas Inzeo, the director of the Office of

Field Programs. We asked the state and local employment practices

agencies to send in applications if they believed they had a mediation

program that we could fund. We looked at their programs to make sure

that they met principles that the Commission had adopted in the

Commission's policy statement. Foremost among them was that

enforcement agencies, like EEOC and the state and local agencies, have

a firewall between the initial process and their investigation and

enforcement process. We chose of he 21, I believe it was, we chose 9

who we believed had that firewall and entered into contracts with

them, written contracts to mediate cases at the same fee as we pay the

private external mediators.

WOLF: And for the record, you can list the nine?

DOMINGUEZ: Yes. We'll be happy to do that, Mr. Chairman.

WOLF: I don't have any other questions. We'll submit some for

the record. But, Mr. Serrano?

SERRANO: I'll finish up the record. I have one more question.

Ms. Dominguez, does the Commission work based on receiving complaints

or are you free to look at societal ills and go after them? I'm

specifically talking about the ongoing issue that never seems to end

of equal pay for equal work for women. It's still a major issue in

our society. What can we do? First of all, do you wait for someone

to complain to you before you can act on it or can the Commission take

on the issue?

DOMINGUEZ: Well, that's one of the reasons we're requesting the

added staffing because at the moment the bulk of our work is really

reactive. It's just reacting to the 80,000 plus charges that we get

annually, just barely keeping our head above water. A lot of the

equal pay issues that used to be filed under the Equal Pay Act are now

being filed under Title 7 of the Civil Rights Act. So we are covering

a number of pay disparities and discriminatory practices, but they're

coming in typically under both Equal Pay or Title 7 of the Civil

Rights Act. So I do believe that we still have some issues in certain

areas of employment relating to that.

But the frustration that I have as Chair of the Commission is

that all the resources that I have for the most part are just devoted

to keeping our head above water and reacting to the discrimination

charges that we get. And with the small‑and mid‑sized employers tha t

don't have the sophistication and we're seeing some really egregious

cases coming, particularly for teenagers working in fast‑food

establishments and those kinds of operations. We do need to do some

very aggressive interventions, some outreach, some education, sort of

to let them know. And so that's the proactive piece along with

systemic discrimination and looking at trends and looking at what are

the systemic issues.

Now, a lot of our litigation work is systemic in nature, and so

we are getting a lot of those issues being filed from the field

offices. We've had a number of them filed, 361 lawsuits last year.

We had a number of ‑‑ majority of those were systemic in nature,

multiple grieved parties. But that is an area of our operations that

we'd very much like to really proactively engage with if we had more

resources.

SERRANO: Well, Mr. Chairman, I have no further questions, but I

wish there was a way, and I know that we have a horrible budget year

ahead of us in terms of the tightness of the budget and the lack of

dollars, but I wish there was a way that we could give the Commission

the dollars to go after some of these issues, especially this one,

because 2004 ‑‑ it was never right but certainly in 2004 we should no

longer have to deal with the issue of equal pay. If a woman does the

same job that a man does, she gets the same loot. We do it in

Congress in terms of members of Congress. But that's the way it is.

So thank you so much for your testimony, and like I said, keep in mind

that my questions are directed at my passion to keep you strong and

viable.

DOMINGUEZ: Thank you, Congressman.

WOLF: Thank you very much.

END

U.S. REPRESENTATIVE FRANK R. WOLF (R‑VA)

Chairman

Washington, D.C.

2004 WL 596577 (F.D.C.H.)

END OF DOCUMENT

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