Photo provided by Proskauer Rose
Leslie Silverman, the former vice chair of the U.S. Equal Employment Opportunity Commission, led the way in developing the EEOC's systemic discrimination program to take on instances of wholesale discrimination by corporations. Recently she left the commission, joining the D.C. office of Proskauer Rose as a partner in its labor and employment department. Her government background provides her with a valuable perspective that she plans to use to guide corporations in developing strategies to protect their interests, assure compliance with government regulations and limit their liability.
Silverman discussed with Lawdragon the employment challenges facing corporate America and the steps corporations need to take to combat discrimination, maintain employee privacy rights and establish effective policies.
Lawdragon: Congratulations on your new job at Proskauer. That's a huge change, going from the public to the private sector. How do you feel about your new role? What will be your main goals and how will you focus your practice?
Leslie Silverman: Thank you. I'm very, very excited about this change. Proskauer has very talented lawyers and the firm is truly invested in its labor and employment practice, which is extremely important to me. My main short-term goal is to integrate myself back into law firm life and into this wonderful firm. I look forward to learning from my colleagues and sharing with them what I have learned from my time in the public sector. I started off my work at a firm, I was there for 7 years so I have that as a base, but I have a whole new outlook from have spending the last 12 years in different government positions. My practice will focus on counseling and advising employers on complying with employment laws. I think my experience, most recently at the Equal Employment Opportunity Commission, but also as labor counsel on Capitol Hill, should serve me well in advising clients both in how to deal with the EEOC and the practices and procedures before the Commission as well as other agencies.
LD: What led you to your interest in employment law in the first place?
LS: I was practicing more general litigation and I remember one of my friends telling me that his father who really enjoyed practicing law had said that the happiest lawyers are the ones who really find their niche. And, while I enjoyed litigation, I didn't feel quite the passion for it that I had hoped for. During my second year of practice, I was assigned my first employment case. It involved age discrimination as well as other issues and it was love at first sight. I felt a true passion for this area and was so excited about it that I did everything I could over the next four years to become an employment lawyer.
LD: What can employers do to combat such discrimination and limit their liability?
LS: I think there are many things employers can do to limit their liability. I would recommend that employers conduct self-audits, looking at their own data to see: if their workforce is diversified; if it reflects the labor pool for the position; to see if the pay between men and women performing substantially the same work is comparable; to ensure that employees who have similar jobs have the same access to things like mentoring programs, choice assignments, training and to career opportunities. And I think that employers also need to be vigilant in checking their policies to make sure that the policies, in and among themselves, don't run afoul of the employment laws by leaving people out of benefits or opportunities and that they don't have a disparate impact.
LD: Employees are often afraid to come forward when they have a problem because they fear retaliation. What can companies do in terms of getting employees to come forward, protecting their privacy and, at the same time, pursuing corrective action?
LS: First, all employment anti-discrimination policies should list multiple supervisors and HR folks that employees can go to and report possible discrimination so that if an employee feels uncomfortable about complaining to a particular person, or if that is the person they are complaining about, the employee has other options. One suggestion is that an employer, particularly a large employer, could have a hotline where people can call and a third-party (preferably a contractor) can take that person's complaint. And, if employees want to leave their complaints anonymously, that's OK too. Employers must recognize that when they receive such a complaint, they cannot simply ignore it. They must be willing to do something about it.
Candidly it's very easy to run afoul of retaliation laws. Employers must be vigilant in training their employees, particularly their managers, especially their low- and mid-level managers, about what can be considered retaliation because people are constantly surprised by this. And I think that with recent Supreme Court rulings, it is not all that difficult to run afoul of anti-retaliation laws. Indeed last year, for the first time, anti-retaliation charges became the second most common type of charge filed with the Commission. Employers should be aware that the Commission takes these charges incredibly seriously because if people are afraid to come forward to complain about discrimination then agencies like the EEOC can't do their job. So again, I think employers need to be responsive to employee complaints, and hyper-vigilant to help ensure that their supervisors and managers do not run afoul of the anti-retaliation provisions.
LD: The EEOC Systemic Task Force developed detailed Initiatives to combat systemic discrimination. How effectively are they working?
LS: Our main goal was to make fighting systemic discrimination a priority for the EEOC; to ensure that the agency was taking on salient issues of systemic discrimination and that it was doing so nationwide. Prior to the initiative,only a few EEOC offices were focusing on systemic cases and there was not a lot of coordination between the EEOC's field offices handling systemic cases. Now each of the EEOC's 15 district offices has had to come up with its own systemic plan. To do this, they had to take a hard look at their district, consider which issues were really pertinent and develop a plan to get at those specific issues. As a result, the agency is not simply reacting to what comes in the door in terms of charges. It is becoming more proactive, finding ways to uncover and combat salient issues of systemic discrimination. This is a huge change. To enable the agency to have a more coordinated approach, each district now has a systemic coordinator. To enhance systemic expertise throughout the agency, the EEOC has focused on training, elevated staff members with systemic expertise and hired more experts. In addition, the EEOC has made substantial improvements in its use of technology.
The task force recommendations were quite ambitious. We knew that a lot had to change and that it could not happen over night. I think the agency has made great strides in the last two years. As I like to say, the EEOC has been putting the bones together - the structure or infrastructure - for the systemic program. The most important thing is that the agency has embraced the Initiative and made systemic discrimination a priority. And that is a far cry from when I started out. Yet there are still aspects that the agency needs to work on - for example, the task force recommended that offices partner so that they could share expertise - yet that is only happening on a limited basis. As I mentioned, we wanted to see a more coordinated approach. Well, it is more coordinated than it was, but it is not as coordinated as it could be, but it is moving forward. Ultimately, for the agency to take on more of these investigations and cases it will need additional resources. Without additional investigators, support staff, experts and attorneys the agency will not be able to grow the program.
LD: In terms of coordination, however, I understand that each of the EEOC district offices has its own systemic enforcement plan. So how can multi-state and national corporations address the differences when establishing corporate-wide anti-discrimination policies and enforcement procedures? I imagine the lack of consistency creates a problem.
LS: Well, in terms of nationwide employers, federal law is federal law and with the exception of the differences between the Circuits, the law in all likelihood is going to be enforced in the same way. It's true that different offices have different plans and some different procedures, but by and large they should all be enforcing in the same way. The Systemic Initiative is not perfect, but it should enable the agency to know when it has two very similar cases against the same employer. And when it makes sense,such as when the same policy is at issue, for the EEOC to try to deal with them together - either office can handle it or they can coordinate. Otherwise the employer ends up fighting the same issue on multiple fronts. Of course some employers may prefer this because that means that the agency hasn't figured it out that it is dealing with a systemic issue.
LD: The EEOC Commissioner can bring charges against a corporation without an employee complaint. How does that work and how does the EEOC support the charges if employees won't come forward?
LS: The ability to bring Commissioner charges has been in the law-in Title VII and the ADA-for years and years. The task force found that in the years prior to the new Systemic Initiative, Commissioner charges were not being utilized very often and in the Commission's more distant past when the field was required to file Commissioner charges, the charges were not necessarily being investigated. The task force believed that Commissioner charges were an essential component, that they could and should be used to get at issues of discrimination that were either not walking in the door or were not presenting themselves in a way that they could be properly investigated through an existing charge. Now Commissioner charges are a key component of the Systemic Initiative. When a Commissioner files a charge, in most instances, the district office is going to follow up on it. But the bottom line is that to bring a solid systemic case, the EEOC will be looking for statistics as well as anecdotal information. So for example, if a Commissioner charge is based solely on statistics and the investigation does not uncover anecdotal information, the Commission is less likely to pursue a systemic case against the employer unless the employer's statistics were terribly out of whack
LD: What advice do you have for corporate America's employers on preventing discrimination and addressing it when it occurs?
LS: Well I talked earlier about conducting self-audits and reviewing policies. But I think that there is more employers can do. Employers should consider putting systems in place to assure that managers don't make discriminatory decisions based on personal stereotypes and hidden bias. Where possible, employers should use hiring committees because a panel will dilute individual biases. Employers should focus on specific job-related criteria when making hiring decisions. And again, we talked about having policies in place. But they have to be followed because that is the first thing the EEOC is going to look at - do you have a policy and are you following it? And having a policy just for sexual harassment is not enough. Having policies in other areas is incredibly important because there are a lot of other areas where managers have a lot of difficulty understanding the issues-such as reasonable accommodation for religion or disability. And again, training, training, training. I know people don't always enjoy training but it really helps. Finally, it is important that the top levels of an organization embrace the company's EEO policies. We all know that things come from the top down.
LD: What do you see will be the up and coming concerns, enforcement efforts and types of cases?
LS: I think with the new changes to the ADA under the ADAAA you are going to see more individual cases and more class actions. I think employers should be very careful about looking at their policies and benefits because I think those areas are ripe for systemic enforcement. Employers seem to be using pre-employment testing and background checks-such as credit and criminal records -- more often and these could present problems. If employers use this information to exclude applicants, they should ensure that the information really is job related and a business necessity and they are using the information prudently. From what I saw from inside the Commission, I am not so sure that that has been happening. Lastly, I believe that compensation discrimination will receive a lot of scrutiny in the coming years.