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New EEOC Chair Naomi Earp rolled out a new initiative to combat 21st-century workplace discrimination during a public meeting on diversity and equal opportunity at agency headquarters yesterday. The emotionally charged hearing included testimony from nationally renowned diversity and discrimination-law experts such as Davis Wright Tremaine's Weldon Latham and Wayne State Law School University Dean Frank Wu. So why did Earp invite affirmative-action opponent Roger Clegg to the discussion, especially since former EEOC Chair Cari Dominguez uninvited him last year to a similar meeting?

Don't miss DiversityInc's April issue, which will feature a virtual roundtable on the business case for affirmative action, including commentary from University of Michigan President Mary Sue Coleman, Clegg, Latham, affirmative-action foe Ward Connerly and DiversityInc Partner and Cofounder Luke Visconti. Subscribe now.

What Is E-RACE?

Race-based discrimination charges continue to account for the overwhelming majority of complaints filed with the EEOC, comprising more than a third of all charges in 2006. Allegations of skin-color bias also are on the rise, increasing by 232 percent over the last 15 years. While much progress has been made since the enactment of the 1964 Civil Rights Act, much has yet to be achieved. That's why the EEOC is rolling out E-RACE (Eradicating Racism and Colorism in Employment), a new initiative designed to combat 21st-century workplace discrimination. (See also: Dark Skinned Blacks at Hiring Disadvantage, New Data Reveals)

"New times demand new strategies to stay ahead of the curve," said Earp. Rather than focus on individual allegations, which it traditionally has done as an enforcement agency, the EEOC will proactively identify specific issues, criteria and barriers that perpetuate workplace discrimination; explore strategies to maximize administrative and legal resources; and encourage public dialogue on the subject.

Commissioner Stuart Ishimaru, who joint-chairs E-RACE with Earp, said EEOC will devise specific objectives within 30 days and present them to key stakeholders, after which they will be revised and publicly rolled out. Learn more about E-RACE.

What Did Clegg Say?

Roger Clegg, president and general counsel of the anti-affirmative-action Center for Equal Opportunity, testified against what he calls "affirmative discrimination." Why did the EEOC want this notorious foe of affirmative action there? It's unclear, especially since former Chair Cari Dominguez, also a Bush appointee, took back an opportunity for him to testify after seeing a prepared copy of his remarks. In his speech yesterday, which drew sharp rebukes from two commissioners, he claimed that corporate policies that "celebrate diversity" operate at the expense of equal opportunity. He urged the EEOC to file lawsuits that challenge corporate-diversity policies. "Dress it up, call it a goal, a timetable, whatever you like, but if you have a percentage and an incentive, that's a quota," he said.

Ishimaru vehemently disputed Clegg's claims. "I profoundly disagree with his analysis and wanted to make that clear for the record," said Ishimaru. "The agency should, and hopefully it will find some way to express that."

Clegg maintained that race should not be considered as a factor in hiring, promotion or any other employment-related decision, even when potential applicants are "equally qualified" on paper. Why? Clegg blatantly refuses to accept current realities. Repeatedly he asked, "What if the shoe were on the other foot?"

After the third time Clegg posed this question, Commissioner Christine Griffin said, "The shoe has been on the other foot for a long time. Like my colleague, I couldn't disagree with you more."

Earp did not address this debate directly, saying only, "Let the record reflect the EEOC will fight discrimination based on race--any race--vehemently."

Unlike Clegg, Weldon Latham, senior partner, Corporate Diversity Counseling Group, Davis Wright Tremaine provided empirical data to support his contentions in support of corporate-diversity programs. Latham emphasized the importance of sustained leadership commitment in leveraging diversity for competitive advantage. He acknowledged progressive companies that understand this but pointed out that far more companies do not, citing lacking representation of women and people of color on Fortune 500 boards, for example.

"This neglect of workplace diversity is further supported by scholarly studies of the subject ... and the multimillion-dollar settlements paid by companies that have since agreed to aggressively address this common workplace problem--a problem that opponents of affirmative efforts would like the EEOC, the rest of the federal government, and the nation to ignore," said Latham.

Who Else Was There?

Here's a list of the panelists and a brief synopsis of their testimonies:

o      Frank Wu, dean of Wayne University School of Law and renowned multicultural psychologist, opened with two simple points: "Race isn't literally black and white," and "race isn't figuratively, metaphorically or symbolically black and white." Wu discussed the unmatched success of affirmative-action programs in increasing representation and graduation rates, citing several studies and his own research as evidence. He says race should be considered as one factor in employment-related decisions.

o      Darrel Gay, labor and employment-law attorney, also participated on the panel with Latham and Clegg. A self-pronounced beneficiary of affirmative action, Gay said of it, "We've totally lost track of what this is about. The reality is we forget that race stands out. I walk in to apply for a job--I'm black; that doesn't change." Gay said EEOC doesn't need to "convince" corporate America diversity is a strategic advantage--most progressive companies recognize that. Rather, Gay says the EEOC should endorse diversity, explaining some clients fear allegations of "reverse discrimination," which he called a misnomer, and may not promote diversity as aggressively as they should.

o      Dr. Marc Bendick Jr., Bendick and Egan Economic Consultants, urged the EEOC to leverage its vast EEO-1 data to identify and target cases likely to have broad-based impacts, such as Dukes v. Wal-Mart, which was one of 45 targets he identified a few years earlier. An expert witness in more than 130 federal and state court cases involving workplace discrimination, Bendick suggested the EEOC hire a team of external researchers to devise improved data-processing techniques and revise Section 15 of its compliance manual, which addresses racism and colorism. He said the information improves conceptual awareness of workplace discrimination but only provides "half the understanding." Read the manual.

o      Diane Seltzer, Seltzer Law Firm and employment-law expert, urged the EEOC to emphasize "the business case for diversity" in order to get employers more comfortable with diversity. "Speak to the business community in its own language," she said, citing University of Chicago, Illinois Professor Cedric Herring's recent research on diversity and the bottom line.

o      James Rotch, Birmingham Pledge Foundation chair, opened with a discussion of his Birmingham Pledge to eliminate racism "one individual at a time." Sign the Birmingham Pledge. "Laws are reasonably effective with changing actions, but they're not very effective with changing the hearts and minds of people." He spoke about creating a national and international dialogue on racism but emphasized creating a focal point around this work.

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