The ICAS Lectures

No. 2004-0814-SJI

Anti-Discrimination Laws and Their Relationship to Citizenship

Stuart J. Ishimaru

ICAS Summer Symposium

The Korean Diaspora:
Challenges facing the Korean-American Community (KAC)
Identification, Critical Examination, Goal & Vision, and Strategy

August 14, 2004 9:30 AM -- 5:30 PM
Montgomery County Community College
Science Center Room 214
340 DeKalb Pike
Blue Bell, PA 19422

Institute for Corean-American Studies, Inc.

965 Clover Court, Blue Bell, PA 19422

Tel : (610) 277-9989; (610) 277-0149
Fax: (610) 277-3289

Biographic Sketch & Links: Stuart J. Ishimaru

Anti-Discrimination Laws and Their Relationship to Citizenship

Commissioner Stuart J. Ishimaru
U.S. Equal Employment Opportunity Commission

I am pleased to have the opportunity to speak before you today and want to thank Dr. Sang Joo Kim and ICAS for inviting me to participate in the symposium. This morning I plan to address the issue of federal anti-discrimination and equal employment opportunity laws and how these relate to our responsibilities and rights as citizens and residents of the United States. As citizens and residents, we all share the privileges as well as the responsibilities of being members of this great nation.

This year marks two historic civil rights anniversaries -- the 50th anniversary of Brown v. Board of Education, the Supreme Courtís decision that struck down segregated "separate but equal" public education in America, and the 40th anniversary of the Civil Rights Act of 1964, the landmark law that prohibits discrimination in employment, education, and public accommodations. Both Brown and the Civil Rights Act embody the promise of America that draws so many people from around the world to our shores. Today, it is often hard to imagine the time captured in grainy black and white video clips, when America was a segregated country by law, and Americans openly discriminated against racial and ethnic minorities both in law and in custom. Schools, stores, restaurants, movie theaters, and hotels discriminated against Americans because of the color of their skin, and it was socially acceptable to do so.

It has been a remarkable transformation. Today, the law prohibits discrimination based on race, color, national origin, and other factors, and social mores have made discrimination unacceptable. The principles of equal opportunity, fairness, and non-discrimination guide most Americans in their daily lives.

While much of the early years of the civil rights movement focused on African Americans, Asian Americans have long been a part of the civil rights struggle. Despite a popular perception to the contrary, Korean Americans and Asian Americans are not just recent immigrants to America; they have had a long history in the United States. Immigration to the United States began from Asia in the early 1800s, and there has been over a century of immigration from Korea. Asian Americans have long fought against discriminatory laws aimed directly at them, and many challenged these laws through the courts.

It is important for Asian Americans to view ourselves as full citizens of the United States of America, entitled to the entire range of benefits of American citizenship. Often, Asian Americans are perceived as foreigners and not as American as other longtime residents. We may even come to believe this ourselves, but we must recognize that we have as much right to be treated with respect and to be free from discrimination as everyone else in this country.

Many believe that eliminating discrimination comes primarily from enforcing anti-discrimination laws. Of course, enforcement of anti-discrimination laws is important. But other efforts, such as being active members of the community and meeting and working with diverse groups of people are also important elements to eliminating discrimination.

Participation in the political process is the responsibility of everyone and gives us an ability to influence the laws that govern our everyday lives whether on a local, state, or national level. The rights to vote, to debate, and to assemble are not to be taken for granted and must be exercised, because although they are the cornerstone of democracy, they are easily impinged.

Politics can be exciting. Many Asian Americans have been hesitant to engage in politics or have not known how to be engaged. Language and cultural barriers may make it more difficult for some Asian Americans to be informed and politically active, but it is no excuse for apathy. Many government agencies and non-profit organizations make translated materials available, and some jurisdictions are required to provide multi-lingual election materials. There are ways to get information despite a language barrier.

I have been pleased to see younger Asian Americans actively involved in the political process, marking an expansion of career paths taken by younger Asian Americans. No longer limited to "traditional" fields of science, engineering, and medicine, many more young people are pursing opportunities in the public service and the law. I remember when I graduated from law school, only four Asian Americans were in my class, and the local Washington, D.C., Asian Bar Association was able to meet in one memberís living room.

Now the local Asian Pacific American Bar Association has hundreds of lawyers (and law students) working in a wide range of offices and levels, from partners in major law firms, to senior staff members in Congress, to political positions in Cabinet Agencies. Younger Asian Americans have flocked to Washington, D.C. to pursue internships and career opportunities in public policy, on a wide range of issues, and on all sides of the political spectrum. Itís a refreshing change from not that long ago when I graduated from law school.

Voting in elections is a basic and important way to be involved, but there are many additional ways to be active:

  • Read the newspaper and talk to people about issues that may affect you and your community. If there is an issue that concerns you, call or write your elected officials and let them know what you think. While some cynics say that public officials are not responsive to concerns of their constituents, I have always found elected officials with whom Iíve worked to be extremely interested in the views of their constituents. They are there to serve you, and while they may not be able to respond to every comment, they usually try their best to answer and act on constituent concerns.

  • Support candidates running for office, either financially or by volunteering your time on their campaign. You can also tell your friends and neighbors about why you like the candidate. Personal endorsements are powerful ones.

  • Be an active participant on governmental bodies, such as advisory committees and elected boards, like the local school board. Angela Oh, a prominent Korean American from Los Angeles, did exactly that by serving as an Advisory Board member on President Clintonís Initiative on Race. She brought a new and different perspective to this board and had a great influence on policy matters involving race relations.

  • Support non-profit organizations that advocate on behalf of Asian Americans or on other issues you support.

Another way to work toward eliminating discrimination is by meeting and then working with other communities who share a commonality of interests. Often much of the basis of discrimination comes from holding negative stereotypes about people from groups different from a personís own or with which a person has not had much experience. Meeting and socializing with people from different groups and trying to understand differences based on culture or experience begins to breakdown some of these stereotypes. Working with people from diverse groups toward a common goal is particularly effective at breaking down stereotypes.

Just as an individual may only be able to effect small changes by him or herself, Asian American subgroups will have limited effectiveness if they are the only ones who are advocating for a particular issue or position. Great changes can be achieved, however, with the support of many. Asian Americans need to work in coalitions both small and large as a means to achieve political goals.

First comes the barrier of working with other Asian ethnic groups to further common interests. This is perhaps easier said than done, given the diversity of the Asian American community, with broad geographic, socio-economic, educational, and historical differences. But overcoming these intra-Asian barriers is vital to success in America. Coalitions can and should also be built with other communities who share common interests, often other people of color and members of religious organizations. This is one of the keys to success in American politics.

Working in a coalition proved to be the key for success during the legislative fight to win redress for Japanese Americans interned by the U.S. Government during World War II. The Japanese American community itself was and is quite small. It only achieved success by forming coalitions with other Asian American groups, civil rights groups, religious groups, civil liberties groups, and other groups who believed that the government erred when it took away the civil and constitutional rights of Japanese Americans during World War II.

This is a slow process, but the more people who are doing this and breaking out of their comfort zone and expanding their reach to new communities, the quicker we will be able to eliminate the basis for discrimination.

While we must engage in multiple efforts to eliminate discrimination, I have no doubt that the most effective tool is strong and effective enforcement of anti-discrimination laws. Most of my career has revolved around this principle. When I worked on Capitol Hill, I had the opportunity to work on passing landmark anti-discrimination laws such as the Fair Housing Amendments Act of 1988, the Americans with Disabilities Act of 1990, and the Civil Rights Act of 1991 which strengthened prohibitions against employment discrimination. At the U.S. Department of Justice, I helped to oversee the Civil Rights Division which enforced laws prohibiting discrimination in education, voting, housing, public accommodations, and state and local government employment. The Civil Rights Division also prosecuted hate crimes. Currently, I am working to fight discrimination in the workplace.

For those of you who have not faced discrimination first hand and have only learned about civil rights struggles such as the Japanese American internment or the 1960's Civil Rights Movement through textbooks and snippets of video footage, racial discrimination may seem to be something that happened a long time ago in history.

But I can assure you that discrimination still exists today. It is a mistake to think that the promises of the Civil Rights Movement and that Dr. Martin Luther Kingís dream have been fulfilled.

As I noted earlier, this year marks the 50th anniversary Brown v. Board of Education which struck down the legality of "separate but equal" schools and made segregation of public schools illegal. The promise of Brown -- to provide people of all races access to an equal education -- remains unfulfilled for the majority of people of color, and some research shows that we are now moving backward from earlier progress made. In fact, a fair number of Asian Americans today are still attending virtually segregated schools and face other barriers to equal educational opportunity, particularly in the Southeast Asian community. One report found that as much as 67% of Cambodians, 68% of Laotians, and 74% of Hmongs in California did not have a high school degree.

We are also celebrating the 40th Anniversary of the Civil Rights Act of 1964, which, among other things, outlawed employment discrimination based on race, color, religion, sex, and national origin. Yet, despite the passage of 40 years, the Equal Employment Opportunity Commission (EEOC) continues to receive large numbers of formal complaints of discrimination, many quite blatant and shocking, while others are complex and subtle. Last year, EEOC received more than 80,000 charges of discrimination. About one-third of these were based on race discrimination and about one-tenth were based on national origin discrimination.

What does the EEOC do about employment discrimination?

The EEOC enforces the civil rights laws that prohibit discrimination in the workplace. In addition to Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin, the EEOC enforces the Age Discrimination in Employment Act, which protects workers age 40 and older from discrimination based on age; the Equal Pay Act of 1963 which requires equal pay for women and men for equal work; the Rehabilitation Act of 1973, which prohibits employment discrimination against people with disabilities working for the federal government or in programs that receive federal financial assistance; and Title I of the Americans with Disabilities Act, which prohibits employment discrimination against people with disabilities in the private sector and in state and local governments.

Generally, the EEOC enforces these laws by investigating employment discrimination complaints. For example, someone will file a charge of discrimination with one of the EEOC offices (the EEOC has 23 district offices in major cities across the nation and 28 other local offices). Complaints alleging employment discrimination may also be filed with certain state or local civil rights agencies who have similar powers and responsibilities.

Charges of discrimination can be brought by individuals or organizations on behalf of an individual. Individuals do not have to be American citizens to file a charge. Immigrants and undocumented workers are also protected by Title VII.

Once a charge alleging discrimination in the private sector is filed, one of our investigators will be assigned to the case, and a copy of the charge is sent to the employer. At this point, a number of things can occur. We may ask the person bringing the complaint and the employer to mediate and try to reach a voluntary settlement; we may dismiss the charge if it appears to be without merit or is not in our jurisdiction; we may conduct a full investigation interviewing witnesses and reviewing documents and then make a determination of whether or not discrimination occurred.

Even if we donít find a violation of the law, we issue a letter that permits the party bringing a complaint to file a suit in federal court. If we do find a violation, we will try to reach a voluntary settlement with the employer and may bring a lawsuit in federal court.

In 2003, the EEOC filed almost 400 lawsuits, and obtained damages of more than $148.7 million.

In the federal sector, the EEOC acts in an adjudicatory capacity. It conducts hearings regarding claims of discrimination committed by an agency and reviews final agency decisions about whether or not discrimination occurred.

In 2003, in the private sector, Asian Americans lodged 838 discrimination charges based on national origin, including accent discrimination, 834 discrimination charges based on race, and 580 charges based on illegal retaliation. These constituted approximately four percent of all charges received by the EEOC.

Now I will address in a little more detail some of the employment discrimination issues that are of greater concern to Asian Americans.

Race discrimination involves treating someone unfavorably because they are of a certain race or because of characteristics associated with race (such as certain facial features or skin color). It is also unlawful to harass a person because of their race. Racial harassment can include racial slurs, offensive or derogatory racial remarks, or the display of racially-offensive symbols. To be illegal racial harassment must be so frequent or severe as to create a "hostile or offensive work environment" or unreasonably interferes with an individualís work performance.

National origin discrimination involves treating people unfavorably because they are from a particular country or part of the world, because of ethnicity or accent, or because they appear to be of a certain ethnic background. Like race discrimination, it is unlawful to harass a person because of their national origin.

Discrimination on the basis of accent and language ability may also constitute national origin discrimination. This is of special relevance to Asian Americans because, according to the Census, over 1.6 million Asian Americans do not speak English or do not speak it well. English-only rules may discriminate on the basis of national origin. For example, an employer can only require an employee to speak fluent English if fluency in English is job related for the position in question and consistent with business necessity.

"Glass ceiling" issues are of particular concern to Asian Americans. Asian Americans, other minorities, and women face barriers to advancement despite being well qualified. In the 1990's it was well documented that many Asian Americans, despite being well educated and well-qualified, were not reaching higher management level jobs and hit an invisible, but impenetrable glass ceiling. According to the National Asian Pacific American Legal Consortium, few Asian Americans are in senior management positions, compared to the qualified pool of potential Asian American managers. Less than 0.3% of senior executives in the United States are of Asian descent, and a 2000 study showed that of the general counsel positions in the Fortune 500, an Asian American held only one. Asian Pacific American women comprise 0.01% and Asian Pacific American men comprise less than 0.2% of the directors of the boards of the 806 public Fortune companies. A prominent Chinese American group, the Committee of 100, commissioned a survey that found 18% of its respondents would be uncomfortable with an Asian American supervisor while 9% would be uncomfortable with a Black supervisor.

Another concern for the Asian American community is incidents of racial and national origin discrimination against immigrant workers who are exploited and donít know their rights. The discrimination has also taken the form of threats of deportation, reporting undocumented immigrant status to government immigration officials, and holding passports or immigration documents.

One such case which the EEOC is currently litigating is EEOC v. John Pickle Company. In this case, the EEOC is suing a Tulsa-based oil industry parts manufacturer for allegedly discriminating against South Asian workers. The EEOC alleges that Pickle recruited East Indian workers to the U.S. assuring them they would face conditions similar to American workers. The workers, expecting to be employed as high-tech welders, electricians, engineers, and cooks were instead subjected to racial and ethnic harassment, and forced to work long hours for little pay, sleep in a warehouse, and work under the watch of armed guards. The workers were also constantly threatened with deportation. The case suggests the kind of human trafficking and exploitative conditions that many immigrant workers currently face but are too scared to report.

Another issue that I am aware of is the relatively low level of filing of charges of discrimination by Asian Americans. It would be great if this low level of reporting meant that not as many people were discriminating against Asian Americans, but I recognize the barriers to getting Asian Americans to report employment discrimination -- lack of awareness of rights, limited English ability, fear or discomfort of dealing with a government agency, cultural differences in dealing with work authorities, and fear of losing a job or damaging a career.

In order to successfully battle employment discrimination, Asian Americans need to know their rights under thaw law, know where to go to complain, and be willing to take steps to complain, for both themselves and the community.

Finally, according to the 1997 Economic Census, Korean Americans own and operate over 135,500 businesses across the United States. These businesses have gross sales of nearly $46 billion and employ over nearly 300,000 individuals. From an economic perspective alone, Korean Americans have contributed significantly through jobs, services, and revenue to America.

But small business owners may not always know their responsibilities under the civil rights laws. EEOC can help small business owners understand what is required and what is prohibited by the employment discrimination laws in our country. Asian Americans have contributed to building and reinforcing this great nation and must continue to do so by taking an active part in ensuing that our workplaces and communities are free from discrimination.

In conclusion, whether it is reporting employment discrimination, supporting fellow workers who face discrimination or promoting a culture free of discrimination in your business, you can make a difference in eliminating employment discrimination. It is, in fact, your responsibility as a resident and a citizen. We all have an important role to play in eliminating discrimination, and I hope you will join me so that together we can make this one nation of diverse people with equal opportunity for all.

Thank you again for the opportunity to be with you at the symposium.

This page last updated 1/3/2005 jdb

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