[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
EXAMINING THE REGULATORY AND
ENFORCEMENT ACTIONS OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, MAY 22, 2013
__________
Serial No. 113-19
__________
Printed for the use of the Committee on Education and the Workforce
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----------
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Tom Price, Georgia Ruben Hinojosa, Texas
Kenny Marchant, Texas Carolyn McCarthy, New York
Duncan Hunter, California John F. Tierney, Massachusetts
David P. Roe, Tennessee Rush Holt, New Jersey
Glenn Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Matt Salmon, Arizona Timothy H. Bishop, New York
Brett Guthrie, Kentucky David Loebsack, Iowa
Scott DesJarlais, Tennessee Joe Courtney, Connecticut
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Larry Bucshon, Indiana Jared Polis, Colorado
Trey Gowdy, South Carolina Gregorio Kilili Camacho Sablan,
Lou Barletta, Pennsylvania Northern Mariana Islands
Martha Roby, Alabama John A. Yarmuth, Kentucky
Joseph J. Heck, Nevada Frederica S. Wilson, Florida
Susan W. Brooks, Indiana Suzanne Bonamici, Oregon
Richard Hudson, North Carolina
Luke Messer, Indiana
Juliane Sullivan, Staff Director
Jody Calemine, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
TIM WALBERG, Michigan, Chairman
John Kline, Minnesota Joe Courtney, Connecticut,
Tom Price, Georgia Ranking Member
Duncan Hunter, California Robert E. Andrews, New Jersey
Scott DesJarlais, Tennessee Timothy H. Bishop, New York
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Larry Bucshon, Indiana Gregorio Kilili Camacho Sablan,
Richard Hudson, North Carolina Northern Mariana Islands
Suzanne Bonamici, Oregon
C O N T E N T S
----------
Page
Hearing held on May 22, 2013..................................... 1
Statement of Members:
Courtney, Hon. Joe, ranking member, Subcommittee on Workforce
Protections................................................ 4
Prepared statement of.................................... 6
Walberg, Hon. Tim, Chairman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Statement of Witnesses:
Berrien, Hon. Jacqueline A., Chair, U.S. Equal Employment
Opportunity Commission..................................... 7
Prepared statement of.................................... 9
Additional Submissions:
Ms. Berrien:
EEOC report, ``Strategic Plan for Fiscal Years 2012-
2016,'' Internet address to............................ 51
EEOC report, ``Strategic Enforcement Plan FY 2013-2016,''
Internet address to.................................... 51
Response to questions submitted for the record from:
Hudson, Hon. Richard, a Representative in Congress
from the State of North Carolina................... 70
Chairman Walberg..................................... 56
Attachment to response submitted for the record.......... 72
Mr. Courtney:
Letter, dated May 21, 2013, from the American Association
of Retired Persons..................................... 26
Letter, dated May 21, 2013, from the Leadership
Conference on Civil and Human Rights, National
Partnership for Women & Families....................... 27
The National Council of EEOC Locals, No. 216, AFGE/AFL-
CIO, prepared statement of............................. 35
Letter, dated Jan. 18, 2013, from Lawyers' Committee for
Civil Rights Under Law................................. 38
Mr. Hudson, questions submitted for the record............... 55
Chairman Walberg:
Letter, dated June 6, 2013, from the U.S. Chamber of
Commerce............................................... 30
Questions submitted for the record....................... 51
EXAMINING THE REGULATORY AND
ENFORCEMENT ACTIONS OF THE EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION
----------
Wednesday, May 22, 2013
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and the Workforce
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:03 a.m., in
room 2175, Rayburn House Office Building, Hon. Tim Walberg
[chairman of the subcommittee] presiding.
Present: Representatives Walberg, Kline, Bucshon, Courtney,
Sablan, and Bonamici.
Also present: Representative Brooks.
Staff present: Katherine Bathgate, Deputy Press Secretary;
Owen Caine, Legislative Assistant; Molly Conway, Professional
Staff Member; Ed Gilroy, Director of Workforce Policy; Benjamin
Hoog, Legislative Assistant; Marvin Kaplan, Workforce Policy
Counsel; Nancy Locke, Chief Clerk; Donald McIntosh,
Professional Staff Member; Brian Newell, Deputy Communications
Director; Krisann Pearce, General Counsel; Molly McLaughlin
Salmi, Deputy Director of Workforce Policy; Mandy Schaumburg,
Education and Human Services Oversight Counsel; Nicole
Sizemore, Deputy Press Secretary; Alissa Strawcutter, Deputy
Clerk; Juliane Sullivan, Staff Director; Tylease Alli, Minority
Clerk/Intern and Fellow Coordinator; John D'Elia, Minority
Labor Policy Associate; Daniel Foster, Minority Fellow, Labor;
Eunice Ikene, Minority Staff Assistant; Leticia Mederos,
Minority Senior Policy Advisor; Megan O'Reilly, Minority
General Counsel; Michele Varnhagen, Minority Chief Policy
Advisor/Labor Policy Director; and Michael Zola, Minority
Deputy Staff Director.
Chairman Walberg. A quorum being present, the committee
will come to order. Good morning to everyone.
This certainly is a great opportunity for a hearing today
that has not taken place for an awful long time, and so I am
glad that we are involved with it this morning.
Chair Berrien, we are pleased to see you here today. It has
been a long time since the committee convened a hearing to
examine the policies and priorities of Equal Employment
Opportunity Commission and we are grateful you have joined us
and thank you for your service to our country.
Ms. Berrien. Thank you.
Chairman Walberg. Republicans and Democrats share the same
goal. I think I can say this without a doubt.
We want to ensure the American people work in an
environment free of discrimination. Whether or not an
individual succeeds in a workplace should be determined by
merit and hard work, not the unlawful prejudice of their boss.
For most employers, a person's skills and drive to succeed
are what matter most. However, as always, bad actors will put
personal bigotries before the talent and dedication of American
workers. This is wrong.
A recent case out of Davenport, Iowa, provides a stunning
example of this difficult reality. According to reports, 32 men
with intellectual disabilities were subjected to abuse and
discrimination. The deplorable treatment these men faced
included verbal and physical harassment, substandard living
conditions, and inadequate medical care.
EEOC is to be applauded for helping to bring those who
committed these heinous acts to justice.
Federal laws prohibiting employment discrimination should
be vigorously and fairly enforced. That is why we are here
today.
There has been a significant shift in both the enforcement
and regulatory priorities in the EEOC in recent years. It is
our responsibility to ask tough questions to ensure agency
policies are in the best interests of workers and employers.
For example, does it serve the best interests of workers
and employers when EEOC investigates businesses without
evidence of wrongdoing?
The agency has set a goal that up to 24 percent of all
litigated cases be systemic in nature. At times these
investigations are launched without any employee alleging
discrimination. Meanwhile, a backlog of more than 70,000
discrimination claims by workers continues to plague the
commission.
At a time of high unemployment and record federal debt,
every job and every dollar counts. We should not be diverting
scarce resources away from workers who believe they have been
harmed in order to follow a hunch. And we should not be
dragging our nation's job creators through unnecessary and
costly investigations without a factual basis of wrongdoing.
Does it also serve the best interests of workers and
employers when the full weight of the agency's litigation power
is ceded to one individual?
Congress created a commission of 5 members to ensure
accountability within the agency. Yet for almost 20 years the
commission has delegated the authority to the Office of General
Counsel. Under only limited circumstances can the commission
vote on the general counsel's decision to intervene in
litigation and these narrow exceptions are not always clear.
As a result, the general counsel has almost complete
control over EEOC's enforcement agenda. This cannot be what
Congress intended and it is having a real impact on the lives
of workers.
One case initiated by the general counsel was later
rejected by a federal district judge. The judge described the
commission's actions as a, and I quote--``sue first, ask
questions later litigation strategy,'' and noted that, and I
quote again--``dozens of potentially meritorious sexual
harassment claims may now never see the inside of a
courtroom.''
Finally, is it in the best interests of workers and
employers when the commission pursues regulatory policies that
may make workplaces less safe?
In April 2012, EEOC revised its longstanding guidance on
the use of criminal background checks. Should the background
check reveal a criminal offense, employers will have to conduct
an, and I quote--``individual assessment'' and identify a
``business necessity'' that merits denying individual
employment.
However, this proposal has already been criticized by one
federal court. As one federal judge noted almost 25 years ago,
quote--``Obviously a rule refusing honest employment to
convicted applicants is going to have a disparate impact upon
thieves.''
This policy also puts many employers at risk of running
afoul of state or local laws that require background checks for
certain positions of public trust, such as child care
providers. Employers will bear the burden of any unintended
consequences stemming from this regulatory change, not EEOC.
Yet they and the public were denied an opportunity to comment
on the proposal before it became final.
Public meetings on broader topics isn't the level of
openness and transparency the American people deserve.
Shouldn't workers and employers have an opportunity to comment
on public policy changes that affect their workplaces?
Chair Berrien, these are serious questions that I hope we
can discuss with you today. I know that it is a lot to address
in one hearing. However, we hope this hearing starts a new,
more open dialogue between the committee and the EEOC, and that
is our responsibility as well as yours.
As I noted earlier, we all share the same goal and only
when we work together can we move closer toward that goal.
Thank you again for being with us today.
I will now recognize my distinguished colleague, Joe
Courtney, the senior Democratic member of the subcommittee, for
his opening remarks.
[The statement of Chairman Walberg follows:]
Prepared Statement of Hon. Tim Walberg, Chairman,
Subcommittee on Workforce Protections
Good morning everyone. Chair Berrien we are pleased to see you
today. It has been a long time since the committee convened a hearing
to examine the policies and priorities of the Equal Employment
Opportunity Commission. We are grateful you've joined us and thank you
for your service to our country.
Republicans and Democrats share the same goal: We want to ensure
the American people work in an environment free of discrimination.
Whether or not an individual succeeds in a workplace should be
determined by merit and hard work, not the unlawful prejudice of their
boss. For most employers, a person's skills and drive to succeed are
what matter most. However, bad actors will put personal bigotries
before the talent and dedication of America's workers.
A recent case out of Davenport, Iowa provides a stunning example of
this difficult reality. According to reports, 32 men with intellectual
disabilities were subjected to abuse and discrimination. The deplorable
treatment these men faced included verbal and physical harassment,
substandard living conditions, and inadequate medical care. EEOC is to
be applauded for helping to bring those who committed these heinous
acts to justice.
Federal laws prohibiting employment discrimination should be
vigorously and fairly enforced. That's why we are here today. There has
been a significant shift in both the enforcement and regulatory
priorities at EEOC in recent years. It is our responsibility to ask
tough questions to ensure agency policies are in the best interests of
workers and employers.
For example, does it serve the best interests of workers and
employers when EEOC investigates businesses without evidence of
wrongdoing? The agency has set a goal that up to 24 percent of all
litigated cases be systemic in nature. At times, these investigations
are launched without any employee alleging discrimination. Meanwhile, a
backlog of more than 70,000 discrimination claims by workers continues
to plague the commission.
At a time of high unemployment and record federal debt, every job
and dollar counts. We should not be diverting scarce resources away
from workers who believe they've been harmed in order to follow a
hunch. And we should not be dragging our nation's job creators through
unnecessary and costly investigations without a factual basis of
wrongdoing.
Does it also serve the best interest of workers and employers when
the full weight of the agency's litigation power is ceded to one
individual? Congress created a commission of five members to ensure
accountability within the agency. Yet for almost 20 years the
commission has delegated that authority to the Office of General
Counsel. Under only limited circumstances can the commission vote on
the general counsel's decision to intervene in litigation and these
narrow exceptions are not always clear.
As a result, the general counsel has almost complete control over
EEOC's enforcement agenda. This cannot be what Congress intended and
it's having a real impact on the lives of workers. One case initiated
by the general counsel was later rejected by a federal district judge.
The judge described the commission's actions as a ``sue first, ask
questions later litigation strategy'' and noted that ``dozens of
potentially meritorious sexual harassment claims may now never see the
inside of a courtroom.''
Finally, is it in the best interests of workers and employers when
the commission pursues regulatory policies that may make workplaces
less safe? In April 2012, EEOC revised its long-standing guidance on
the use of criminal background checks. Should the background check
reveal a criminal offense, employers will have to conduct an
``individual assessment'' and identify a ``business necessity'' that
merits denying the individual employment.
However, this proposal has already been criticized by one federal
court. As one federal judge noted almost 25 years ago, ``Obviously a
rule refusing honest employment to convicted applicants is going to
have an disparate impact upon thieves.''
This policy also puts many employers at risk of running afoul of
state or local laws that require background checks for certain
positions of public trust, such as child care providers. Employers will
bear the burden of any unintended consequences stemming from this
regulatory change, not EEOC.
Yet they and the public were denied an opportunity to comment on
the proposal before it became final. Public meetings on broader topics
isn't the level of openness and transparency the American people
deserve. Shouldn't workers and employers have an opportunity to comment
on policy changes that affect their workplaces?
Chair Berrien, these are serious questions that I hope we can
discuss with you today. I know that is a lot to address in one hearing.
However, we hope this hearing starts a new, more open dialogue between
the committee and EEOC. As I noted earlier, we all share the same goal
and only when we work together can we move closer toward that goal.
Thank you again for being with us today.
I will now recognize my distinguished colleague Joe Courtney, the
senior Democratic member of the subcommittee, for his opening remarks.
______
Mr. Courtney. Well, good morning, Mr. Chairman. I want to
thank you for calling today's hearing to put the spotlight on
the important work of the Equal Employment Opportunity
Commission, and particularly under the leadership of Chairman
Jacqueline Berrien, who is here today.
This is the first time we have actually invited the
chairwoman to the House in the last 3 years, so again, I want
to applaud the--you know, this action today to, again, start a
dialogue with our subcommittee on the important work that the
Equal Employment Opportunity Commission engages in every single
day. The work of the EEOC is critical, particularly when we
look at the challenges facing the unemployed in our nation.
Even as the economy has improved, with 7.5 percent
unemployment rate last month, the unemployment gap has remained
high for minorities. For African Americans it was 13.2 percent
and for Latinos, 9 percent in April. And we know, as labor
economists and experts point to, that discrimination remains
one of the factors for that disparity.
Every worker in this country, whether a job applicant or an
employee, deserves the right to be treated fairly in the
workplace and judged based upon the ability to do the job. The
foundation of our civil rights laws is to ensure that all
Americans have the opportunity to participate in society, to
provide for themselves and their families, and to contribute to
the economy.
Unfortunately, far too often workers are not hired or are
paid less or fired from their jobs because they are a woman, or
a pregnant woman, or an African American, or have a disability.
The EEOC plays an essential role in ensuring fairness and equal
opportunity in the workplace through its enforcement of our
federal laws that make it illegal to discriminate against an
employee or job applicant because of that person's race, color,
religion, sex, national origin, age, disability, or genetic
information.
Despite these protections, nearly 100,000 new charges of
discrimination were filed with the EEOC last year, and despite
the commission's efforts to achieve resolutions in these cases,
they continue to have a backlog, which stands to grow as a
result of budget cuts and sequester, and that sequester
chainsaw has hit the EEOC just like it has so many other
agencies of our government.
Congress has a responsibility to the nation's workers to
ensure that should they become a victim of workplace
discrimination, that they have a place to seek justice. I am
proud that during the Democratic-led 110th and 111th Congress,
under the leadership of Speaker Pelosi, we made critical
improvements to our nation's civil rights laws through the
enactment of the Americans with Disabilities Act amendments and
the Genetic Information Nondiscrimination Act, and also passage
of the Lilly Ledbetter Fair Pay Act, which restored the law to
what it was prior to the misguided Supreme Court decision in
Ledbetter v. Goodyear. And in almost every single instance,
those three laws were enacted with large bipartisan majorities,
so it does show that there really is, I think, concern on both
sides of the aisle to make sure that we do better to make a
more perfect union, as Lincoln said, in terms of a fair
workplace.
But despite the progress that we have made there is still
much left to be done, and I believe there are many issues where
Democrats and Republicans can join together again to strengthen
our civil rights laws. The Employment Nondiscrimination Act,
which I am proud to cosponsor, would prohibit discrimination in
the workplace because of someone's sexual orientation or gender
identity. Again, that was recently introduced in both the House
and the Senate with both Democratic and Republican cosponsors.
And I urge both chairmen--and I see Mr. Kline here today--
to work with Representatives Polis and Ros-Lehtinen to build
bipartisan sponsors in the House to bring this long overdue
legislation back before the committee for its immediate
consideration.
I would also urge both chairmen to work with us on the
Protecting Older Americans Against Discrimination Act. This
legislation has been modified since it was originally brought
before the committee under the prior chairman, Chairman
Miller's, time as leader and is now a bipartisan bill,
sponsored by Senators Grassley and Harkin in the Senate. I
believe we, too, could find common ground on this bill to
protect our nation's older workers.
And finally, the Paycheck Fairness Act, which has been
passed twice by this House, again on a strong bipartisan basis,
should be brought up for immediate consideration so that
gender-based pay discrimination is finally put on an equal
footing with our other civil rights laws.
Mr. Chairman, again, I want to thank you for holding this
hearing. I am confident that we can find opportunities to work
together to strengthen our nation's civil rights laws and have
this subcommittee lead the way.
I also want to thank, again, Chair Berrien for being with
us today and thank her for her dedication, her hard work on
behalf of our nation's workers.
And I yield back.
[The statement of Mr. Courtney follows:]
Prepared Statement of Hon. Joe Courtney, Ranking Member,
Subcommittee on Workforce Protections
Good morning. I want to thank Chairman Walberg for calling today's
hearing to examine the important work the Equal Employment Opportunity
Commission is undertaking through the leadership of the Commission's
chair Jacqueline Berrien. Chair Berrien, I want to thank you for being
with us today to update the subcommittee on the work of the EEOC.
The work of the EEOC is critical, particularly when we look to the
challenges facing the unemployed in our nation. Even as the economy has
improved, with 7.5 unemployment rate last month, the unemployment gap
has remained high for minorities--for African Americans, it was 13.2
percent and for Latinos, 9.0 in April. And we know, as labor economists
and experts point to, that discrimination remains one of factors for
the disparity.
Every worker in this country--whether a job applicant or employee--
deserves the right to be treated fairly in the workplace and judged
based upon ability to do the job. The foundation of our civil rights
laws is to ensure that all Americans have the opportunity to
participate in society, to provide for themselves and their families,
and to contribute to the economy.
Unfortunately, far too often workers are not hired, paid less or
fired from their jobs because they are a woman, or a pregnant woman, or
an African American or have a disability.
The EEOC plays an essential role in ensuring fairness and equal
opportunity in the workplace through its enforcement of our federal
laws that make it illegal to discriminate against an employee or job
applicant because of that person's race, color, religion, sex, national
origin, age, disability or genetic information.
Despite these protections, nearly 100,000 new charges of
discrimination were filed with the EEOC last year. And despite the
Commission's efforts to achieve resolutions in these cases, they
continue to have a backlog which stands to grow as a result of budget
cuts and sequester.
Congress has a responsibility to this nation's workers to ensure
that should they become a victim of workplace discrimination, they have
a place to seek justice.
I'm proud that the Democratic--led 110th and 111th Congresses,
under the leadership of Speaker Nancy Pelosi, made critical
improvements to this nation's civil rights laws through the enactment
of the Americans with Disabilities Act Amendments and the Genetic
Information Nondiscrimination Act. Also, passage of the Lilly Ledbetter
Fair Pay Act restored the law to what it was prior to the misguided
Supreme Court decision in Ledbetter vs. Goodyear.
Despite the progress we have made, there is still much left to be
done. And I believe there are many issues where Democrats and
Republicans can join together to strengthen our civil rights laws.
The Employment Nondiscrimination Act, which I am proud to
cosponsor, would prohibit discrimination in the workplace because of
someone's sexual orientation or gender identity was recently introduced
in both the House and Senate with both Democratic and Republican co-
sponsors.
I urge Chairman Walberg and Chairman Kline to work with
Representatives Polis and Ros-Lehtinen, the bill's bipartisan sponsors,
to bring this long overdue legislation back before the Committee for
its immediate consideration.
I would also urge Chairmen Walberg and Kline to work with us on the
Protecting Older Workers Against Discrimination Act. This legislation
has been modified since it was originally brought before the Committee
under Chairman Miller's leadership and is now a bipartisan bill
sponsored by Senators Grassley and Harkin in the Senate. I believe we
too could find common ground on this bill to protect this nation's
older workers.
In addition, the Paycheck Fairness Act, which has been passed twice
by this House on a bipartisan basis should be brought up for immediate
consideration so that gender-based pay discrimination is finally put on
equal footing with our other civil rights laws.
Mr. Chairman, I want to thank you again for holding this hearing. I
am confident we can find opportunities to work together to strengthen
this nation's civil rights laws. I also want to once again thank Chair
Berrien for being before us today and thank her for her dedication and
hard work on behalf of this nation's workers.
______
Chairman Walberg. I thank the gentleman.
Pursuant to committee rule 7(c), all members will be
permitted to submit written statements to be included in the
permanent hearing record. And without objection, the hearing
record will remain open for 14 days to allow statements,
questions for the record, and other extraneous materials
referenced during the hearing to be submitted in the official
hearing record.
It is now my pleasure to introduce our distinguished
witness.
The Honorable Jacqueline Berrien is the chair of the Equal
Employment Opportunity Commission in Washington, D.C. Chair
Berrien has a distinguished career, including over 15 years of
practicing civil rights law. She has served as a program
officer for the Ford Foundation's Peace and Social Justice
program and the associate director counsel at the NAACP Legal
Defense and Educational Fund.
Chair Berrien received her B.A. in government from Oberlin
College and her J.D. from the Harvard Law School.
Welcome.
Before I recognize you to provide testimony, I think you
know the fire drill with the lights.
Ms. Berrien. Yes.
Chairman Walberg. Yellow light gives you a minute left, and
then screech to a halt as quickly as possible at red. But we do
want to hear your comments. Our committee will be held to those
same 5 minutes.
But without any further information to share, we welcome
your comments.
STATEMENT OF HON. JACQUELINE A. BERRIEN, CHAIR,
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Ms. Berrien. Thank you very much, Chairman.
Mr. Chairman, good morning.
Mr. Chairman Kline, good morning.
Mr. Ranking Member Courtney, good morning, and all members
of the subcommittee.
I thank you for inviting me to testify today on behalf of
the Equal Employment Opportunity Commission. As I have shared
with the staff of our agency many times, including in the
visits that I have made to more than half of our 53 offices
since my tenure began in 2010, one of my most important
responsibilities and greatest privileges is meeting with
Members of Congress to share news about agency accomplishments
and report on our efforts to serve the public and enforce the
nation's laws prohibiting employment discrimination.
I have served as chair of the EEOC since April 2010
together with Commissioners Constance Barker, Chai Feldblum,
and Victoria Lipnic. Last week Commissioner Jenny Yang was
sworn in as our newest member, so we are now operating again
with a full complement of commissioners.
In a few months this nation will pause to reflect on the
50th anniversary of the March for Jobs and Justice, which
occurred just a little distance from this building on the Mall.
Many years and marches later, that day in August 1963 has such
an extraordinary impact on our history and was such an
extraordinary moment in this nation that it is still referred
to as The March on Washington.
The people who assembled here that day, including my father
with me as a toddler in tow, left an indelible imprint on the
history of the United States of America--one that I think we
are all proud of as a nation.
The EEOC was created less than a year after that march with
the passage of the Civil Rights Act of 1964, so I consider it a
tremendous blessing and privilege to be responsible for
stewardship of the EEOC and its resources today. And I thank
you for the opportunity to appear before you today to discuss
the plans, challenges, and needs of the EEOC.
Thank you all for your support of the EEOC and its work and
I look forward, as I have said in many meetings with individual
members of this body over the past few years--I look forward to
continuing to work with you and all Members of Congress and all
people in this nation who are committed to advancing the
mission of the EEOC to end and remedy unlawful employment
discrimination.
As I start my testimony, or as I move forward, I would like
to just highlight a few things about the EEOC--a few very basic
points that I think provide the backdrop for today's
discussion.
Despite resource constraints and rising demand for the
services of the EEOC, the men and women of our agency have
labored mightily and worked diligently to mitigate the impact
of the sequester on the people we serve. I greatly appreciate
their service and recognize that many workplaces, job seekers,
and employers have been positively impacted by the work of the
EEOC.
I am pleased to report to you today that over the past 2
fiscal years, despite budgetary constraints and receipt of
record numbers of new discrimination charges, the EEOC has been
able to resolve more charges than we have received each year.
As a result, the unresolved private sector charge inventory
of the EEOC, which some also say--or refer to as a backlog, has
been reduced. It has been reduced nearly 20 percent since
fiscal year 2010. That is a significant accomplishment, and
indeed, it is the first time in nearly a decade that the agency
has made that progress in resolving charges of discrimination
and reducing the number of unresolved charges of
discrimination.
As I said to your Senate colleagues during my confirmation
hearing, I recognize fully, as one who has been an advocate for
and representative of people who have experienced
discrimination, that our unresolved charges of discrimination
represent potential instances where justice is denied because
of delay. So I take very seriously my responsibility and the
agency's responsibility to address those unresolved charges,
and that is why I made that one of the priorities during my
tenure as chair of the EEOC.
But significantly, neither the laws that we enforce nor the
priorities--set not only by this commission, but by our
colleagues across history of the agency and across parties--
have recognized this agency has multiple tools at its disposal
to address the continuing problem of unlawful employment
discrimination and we have availed ourselves fully of them. And
our strategic plan, which was adopted last year, and our
strategic enforcement plan, also adopted last year, detail more
fully some of the ways that we deploy those resources and those
tools that are available to stop and remedy unlawful employment
discrimination.
Our strategic plan has three objectives: combating
employment discrimination through strategic law enforcement,
preventing employment discrimination through education and
outreach, and delivering excellent and consistent service
through a skilled and diverse workforce and effective systems.
We are dedicated and focused, as an agency and as a commission,
to ensuring that all of those objectives are met, all with the
goal of advancing the very, very important mission of the EEOC.
Our strategic plan communicates to our staff, our
stakeholders, and to the general public that we are committed
to making the most strategic use of resources, intensifying and
enhancing our efforts to prevent unlawful discrimination in the
workplace, and ensuring that we serve the public well.
I appreciate this opportunity. I look forward to any
questions that you may have--any member of the committee may
have about the work of the agency.
And again, thank you for inviting me to testify today.
[The statement of Ms. Berrien follows:]
Prepared Statement of Hon. Jacqueline A. Berrien, Chair,
U.S. Equal Employment Opportunity Commission
Good afternoon Mr. Chairman, Mr. Ranking Member, and Members of the
Subcommittee. Thank you for inviting me to testify today on behalf of
the Equal Employment Opportunity Commission (EEOC). The EEOC is a five-
member bipartisan commission responsible for the enforcement of federal
employment anti-discrimination laws. I have served as Chair of the EEOC
since April 2010 with Commissioners Constance Barker, Chai Feldblum,
and Victoria Lipnic. I'm pleased to let you know that, just last week,
Commissioner Jenny Yang was sworn in as our newest member, so we are
now operating with a full complement of Commissioners.
I appreciate the opportunity to appear before you to discuss the
plans, challenges, and needs of the EEOC. It has been a privilege to
serve as Chair of the EEOC for the past three years, and it is an honor
to represent the agency today and in the many meetings with individual
members of Congress I have attended over the past few years. Thank you
for your past support of the EEOC, and I look forward to continuing to
work with the members of this subcommittee and all members of Congress
to advance the mission of the EEOC in the future.
Fiscal realities
Mr. Chairman, before I discuss the agency's plans and
accomplishments in greater detail, I would like to provide some context
about the current state of the EEOC. I have always considered the
careful and thoughtful stewardship of the agency's resources to be one
of my chief responsibilities, but that responsibility has become more
important given the significant reductions to the EEOC's budget in
fiscal years 2012 and 2013.
Our agency, like all federal agencies today, faces many challenges.
We are, first and foremost, an enforcement agency with limited
resources. We must operate strategically to fulfill our enforcement
responsibilities, engage in extensive outreach efforts to promote
voluntary compliance, educate the public about the laws that we
enforce, and work diligently to serve the public in the most efficient
and effective manner possible. I am pleased to report that over the
past two fiscal years we have been able to resolve more charges than we
have received each year, which has led to a nearly 20 percent reduction
in our pending inventory. We have also reduced the average processing
time for Federal sector resolutions.
Approximately 80 percent of the EEOC's budget consists of fixed
expenses of primarily payroll and rent. An additional 9-10 percent is
dedicated to our partners and your constituents in state and local Fair
Employment Practices Agencies, also known as FEPAs. Therefore, our
fixed costs of approximately 90 percent of the agency's budget leaves
us with little discretion to shift additional resources to meet the
increasing demands presented by the historically high number of private
sector charges and federal sector complaints of discrimination.
Like the rest of the Federal Government, the EEOC is also dealing
with the across-the-board cuts required under sequestration. To meet
the demands of sequestration, total programs and projects were reduced
by 5 percent from the FY 2013 appropriated level, which have required
reductions in our programs, as well as employee furloughs of up to
eight days. In an effort to reduce the impact on agency operations and
staff, we plan to evaluate our budget situation after the first five
days of furloughs to determine if the remaining three days are
necessary.
Throughout this process we are closely monitoring our operating
plan for additional cost savings. There can be no doubt, however, that
sequestration has made it more difficult to deliver the services
Congress requires and the American people expect of the EEOC. The men
and women of our agency have risen to the occasion, but there is no
doubt that morale has been impacted. To this end, I have instructed all
agency leaders to keep their staff well informed of the sequestration
process and do what they can to mitigate the impact of the sequester on
our employees and the people we serve. I also want to say here,
publically, thank you to all of my colleagues at the agency, especially
those on the front-lines in the field, for their great service to this
nation.
Strategic vision
A little more than a year ago, the EEOC adopted a new Strategic
Plan, which outlines three strategies to advance our mission of
stopping and remedying unlawful employment discrimination. Our
strategic objectives are:
1. Combating employment discrimination through strategic law
enforcement;
2. Preventing employment discrimination through education and
outreach; and
3. Delivering excellent and consistent service through a skilled
and diverse workforce and effective systems.
EEOC's Strategic Plan communicates to our staff, our stakeholders
and to the general public that we are committed to making the most
strategic use of our resources, intensifying and enhancing our efforts
to prevent unlawful discrimination in the workplace, and ensuring that
we serve the public well. It is through a strategic approach that we
are striving to build ``ONE EEOC''--an agency that operates in a
coordinated and seamless manner so that we are responsive to those who
need our services and that our efforts have a tangible impact on the
workplace.
A strategic approach will also help the agency manage our charge
and complaint inventory in the private, public and Federal sectors.
Like my predecessor, Chair Gilbert Casellas, who led the Commission in
adopting the Priority Charge Handling Procedures in 1995, and Chair
Cari Dominguez, who led the Commission in adopting the recommendations
of the Systemic Task Force, I have worked together with my Commission
colleagues, the General Counsel and agency staff to ensure that we make
the best use of available resources. The Strategic Plan furthers those
efforts.
The plan was developed with unprecedented opportunities for a wide
range of stakeholders, EEOC staff, and interested members of the public
to provide input. We have continued to engage the public as we have
entered strategic plan implementation, including during last year's
development of the Strategic Enforcement Plan and currently the Quality
Control Plan for Investigations and Conciliations.
Although the EEOC is in the early stages of implementing the new
Strategic Plan, as detailed in our Fiscal Year 2012 Performance and
Accountability Report, we have already begun to make meaningful
progress toward more strategic and focused use of our resources.
Strategic enforcement
A key example of our progress is the Commission's adoption of the
Strategic Enforcement Plan. Informed by staff and public input and in
keeping with our belief that we will execute our mission more
efficiently and effectively by targeting specific issues of
discrimination where federal enforcement is needed most and will have
the greatest impact, the Commission identified six enforcement
priorities:
1. Eliminating barriers in recruitment and hiring;
2. Protecting immigrant, migrant and other vulnerable workers;
3. Addressing emerging and developing issues;
4. Enforcing equal pay laws;
5. Preserving access to the legal system; and
6. Preventing harassment through systemic enforcement and targeted
outreach.
These priorities were reflected most recently in the EEOC's
successful litigation against Henry's Turkey Service. Our agency
secured a historic $240 million jury award for a group of 32 men with
intellectual disabilities who were subjected to severe abuse,
segregated housing, and other forms of harassment and discrimination
over the course of more than two decades. This is the largest award in
the EEOC's history and is the second largest award ever in an
employment discrimination case. It took years for our staff to
investigate and successfully litigate this case, but because of that
tenacity, we were able to restore the dignity of the workers in this
case and send a strong message to all that the unlawful conduct in this
case will not be tolerated in the United States. We were able to
vindicate the right to work free from unlawful discrimination for all.
The EEOC is also working collaboratively with other Federal
agencies, including the Department of Labor's Office of Federal
Contract Compliance Programs (OFCCP) and the Department of Justice's
Civil Rights Division. EEOC has strengthened its longstanding
Memorandum of Understanding with OFCCP to promote greater efficiency
and coordination in support of the agencies' shared mission of ensuring
equal employment opportunity under Title VII of the Civil Rights Act of
1964 and Executive Order 11246. EEOC is also partnering with DOJ to
more effectively investigate violations of federal equal employment
laws by state and local employers.
Maximizing impact
At many points in the EEOC's history, the agency has prioritized
directing agency resources to prevent and remedy practices that
adversely impact many workers and job seekers. With the adoption of the
Systemic Task Force's recommendations in 2006, the EEOC renewed its
emphasis on systemic enforcement--those cases that involve policies or
practices that affect multiple employees, an entire industry, an
occupation, a profession, or an entire geographic area. While systemic
cases are highly complex and resource-intensive, they typically affect
a large number of employees or job-seekers directly. By increasing
public awareness and changing company policies and industry standards,
these cases also have indirect effects on untold numbers of others.
To this end, both the Strategic Plan and Strategic Enforcement Plan
reiterate the importance of systemic enforcement of priority issues. In
FY 2012, the EEOC resolved 240 systemic investigations, securing
monetary benefits of $36.2 million for 3,813 individuals.
Examples of systemic resolutions achieved through the conciliation
process include a $5.4 million settlement for a class of women in
Texas, Louisiana, Mississippi, Alabama, and Florida who sought, but
were denied employment as temporary workers for the oil spill response
in the Gulf during 2010. Another successful conciliation involved Pepsi
Beverages (Pepsi), in which the company agreed to pay $3.13 million and
provide job offers and training to resolve a charge of race
discrimination. Based on the investigation, the EEOC found reasonable
cause to believe that the criminal background check policy formerly
used by Pepsi discriminated against African-Americans in violation of
Title VII. Pepsi agreed to modify its background check policy and to
report to the EEOC concerning implementation of its new policy.
The agency has also seen continued success in its systemic
litigation program. In the last fiscal year, the EEOC resolved 21
systemic cases, four of which included at least 50 victims of
discrimination. Just last month, the EEOC settled a systemic hiring
discrimination case against Presrite Corporation for $700,000 and job
offers for over 40 women. The lawsuit alleged that Presrite, a Federal
contractor, consistently passed-over female applicants in favor of
less-qualified males for entry-level positions at three Ohio plants.
The largest litigation monetary recovery of FY 2012 was in EEOC v.
Yellow Freight, where the EEOC secured an $11 million settlement for
300 victims of a racially hostile work environment at the Chicago
trucking firm. Numerous employees complained to the company about
hangmen's nooses being displayed, racially offensive graffiti in the
workplace, and other forms of race-based discrimination. Nevertheless,
the company failed to correct these problems. In addition to obtaining
monetary recovery, the settlement requires the company to retain
consultants to examine its discipline and work assignment procedures
and recommend changes to prevent unlawful discrimination in the future.
In addition to prioritizing systemic enforcement, the Strategic
Plan also sets forth a measure to ensure that more of our
conciliations, consent decrees, and legal resolutions benefit not only
the charging party but also current and future employees and job
applicants by including equitable relief designed to end and prevent
the recurrence of discrimination.
Prevention through education and outreach
In addition to traditional forms of administrative and legal
enforcement, strategic law enforcement also requires consistent and
innovative education and outreach efforts aimed at raising awareness
amongst employers, employees, and job seekers about their rights and
responsibilities under the laws the EEOC enforces. These efforts
encourage voluntary compliance and are another cost-effective way to
have the greatest impact on the workplace.
To this end, prevention of unlawful discrimination through
education and outreach is now clearly identified as a top priority for
the agency in the Strategic Plan and Strategic Enforcement Plan.
The agency is currently targeting outreach to vulnerable workers
and underserved communities and to small and new businesses. The agency
is also working quickly to update our guidance and other documents on
the requirements of employment antidiscrimination law and make those
materials more accessible and user-friendly to non-legal audiences and
the general public.
Again, though we are in the early stages of Strategic Plan
implementation, we have already made significant progress in enhancing
our outreach efforts. For example, even before the new plan took
effect, I asked Commissioner Constance Barker to lead a Small Business
Task Force. Already, the task force has identified mechanisms to
improve our outreach to small businesses.
Moreover, in the Federal sector, the EEOC issued two significant
reports on the barriers facing African Americans and Asian American and
Pacific Islanders in Federal employment to educate employees and
managers about particular issues for these communities.
Finally, the members of the Commission, the General Counsel, and
many employees of the EEOC participate in events across the country in
a continuing effort to inform the public about the laws that we
enforce. In Fiscal Year 2012 alone, agency staff reached more than
350,000 people in thousands of no-cost and fee-based events held across
the country; Commissioners Chai Feldblum and Vitoria Lipnic made joint
presentations on the Americans with Disabilities Act to audiences in
Seattle, Miami, Boston and Los Angeles; and all Commissioners and the
General Counsel addressed bar associations, continuing legal education
programs, and other events throughout the nation. Agency leadership
also presented at EEOC-sponsored training programs.
Serving the public more efficiently
The third objective of the Strategic Plan is providing excellent
service through a diverse and skilled workforce and effective systems.
In this objective, we recognize the importance of ensuring that agency
staff are equipped and prepared to deliver excellent service. This
objective recognizes that the EEOC should strive for continued
improvements in the timeliness and quality of enforcement activities in
the private, state and local government, and Federal sectors.
One of the agency's greatest challenges has been, and continues to
be, resolving discrimination charges filed by private and Federal
sector employees and job seekers promptly, while at the same time
ensuring that the rights of the charging parties and respondents
receive appropriate attention and respect. Moreover, one of the
overriding concerns among stakeholders has been improving the quality
and efficiency of EEOC investigations. To address this concern, the
EEOC's Strategic Plan calls for the creation of a Quality Control Plan
for investigations and conciliations. The agency is currently
developing this plan, and we have again solicited public input
concerning improvements in the quality of service provided by the
agency and engaged a diverse group of employees in advising the
Commission. We expect a plan to be approved by the Commission this
year.
Effectively managing and ultimately reducing the inventory of
unresolved charges remains an important goal for the EEOC. As noted
earlier, since 2010, with the benefit of renewed investment in the
staffing, training and technological needs of the EEOC, we have
achieved a nearly 20 percent reduction in our inventory of unresolved
charges. Moreover, the agency is no longer addressing this issue as a
short term or episodic problem and is, instead, working to enhance and
reinvigorate existing systems to address this challenge on a sustained
basis. The adoption of our Strategic Enforcement Plan will also assist
agency leaders and staff in the expeditious management and resolution
of private sector discrimination charges by streamlining the number of
priorities. While furloughs necessitated by sequestration will impact
the Commission's continued ability to slow the growth of our charge
inventory in the short-term, setting clear priorities provides guidance
to staff, helping them focus and expedite investigations, which will
more effectively manage our charge inventory over the long-term.
Finally, with respect to improving customer service, the EEOC's
Strategic Plan requires the Commission to make use of technology to
improve communication by allowing the public to submit and receive more
information electronically. As we have heard from employees and
employers, streamlining the private sector charge filing system and
making information about the status of pending charges accessible
electronically will serve the interests of workers, employers, and the
EEOC as we seek to make the best possible use of scarce resources.
The EEOC continued its focus on expanding the use of technology to
make the Federal hearings and appeals process faster and more
effective. We have implemented an electronic file system, which is
designed to allow Federal agencies the ability to securely submit
electronic reports of investigation, complaint files, and other
documents to the EEOC in support of the Federal hearings and appellate
processes. This system is now available to all Federal agencies for
their use in transmitting documents electronically to the EEOC.
Currently, there are 21 parent agencies and 47 sub-agencies utilizing
this technology for electronic document submission and receipt.
Moving forward
Despite these accomplishments, our rebuilding efforts are
incomplete and the progress is fragile. Given the agency's varied
enforcement responsibilities, we are constantly challenged to meet the
growing public demand for the services we provide. We are mindful of
the need to identify ways to reduce spending and have worked diligently
to cut costs that will not compromise or undermine our ability to
fulfill our mission. EEOC employees have worked to improve operations,
provide better service to the public and more effectively and
efficiently enforce the Federal laws prohibiting employment
discrimination.
The EEOC requested a budget of $372.9 million for FY 2014, an
increase of $12.9 million from the FY 2012 appropriations. These
resources are vital to maintaining the progress made in rebuilding the
EEOC's enforcement capacity. Our FY 2014 request will allow us to make
continued progress on the charge inventory and in carrying out the
agency's critical work and priorities, including serving the public
more efficiently and effectively and seeking to prevent discrimination
through enhanced education and outreach.
The EEOC is moving forward despite the fiscal challenges and
demands we face. The agency is on track in implementing the goals of
its Strategic Plan and making meaningful progress towards becoming
``One EEOC.''
Thank you for this opportunity to highlight some of our recent
accomplishments, all of which are helping us to achieve our mission to
stop and remedy unlawful employment discrimination. I look forward to
working with you in the future and will be happy to answer any
questions that you may have.
______
Chairman Walberg. Thank you, Ms. Berrien.
And now will open for questions from the committee, and I
recognize myself for 5 minutes of questions.
As I mentioned in my opening comments, I am particularly
concerned about the delegation of litigation authority to the
general counsel of the EEOC. The December 2012 Strategic
Enforcement Plan delineated a list of situations in which a
decisive--or--which a decision to commence or intervene in
litigation must be brought to the commission for a vote.
Specifically, I am concerned commissioners cannot force an
opportunity to vote and there is no checks and balances system
to ensure the full commission votes on important cases,
especially considering EEOC's recent high-profile litigation
losses. Do you share these concerns? And if not, how can we be
comfortable that the commission is not just a commission in
name only?
Ms. Berrien. Chairman Walberg, I believe you were quoting
from our Strategic Enforcement Plan adopted in December of
2012, and I want to reinforce that--and underscore that that
was adopted by a bipartisan majority of the commission--members
of the commission, so what is reflected there is not only my
view but it is the view of a majority of members of the
commission.
With that background, I would say several things. First of
all, as you have noted, the Strategic Enforcement Plan does
refer to the 1995 delegation of authority to the general
counsel of the agency and does continue that basic delegation,
which was adopted together with the priority charge handling
procedures and other systems intended to streamline the work of
the agency and make sure that we were more effective in using
the resources that we had.
Certainly at this time, as the commission considered the
input from more than 100 members of the public, institutions,
representatives of employers, a wide range of agency
stakeholders, we heard from them about a range of subjects
including the issue of delegation and considered some of the
recommendations that were made concerning the delegation of
authority, and as a result, some changes were made but the
basic delegation of authority remains.
The general counsel of the agency has, as I was and as all
of our colleagues of the commission were, was nominated by
President Obama and confirmed by the Senate. He conducts
litigation on behalf of the commission. And as the Strategic
Enforcement Plan provides, he reports regularly on the conduct
of that litigation.
It should be noted that our litigation program in this
fiscal year has an over 90 percent success rate in its
litigation. I believe we have done 8 of 9 trials this year and
we have succeeded.
And so I do believe it is important to look at the
instances where we have lost a case in light of the
overwhelming success of our----
Chairman Walberg. Some of those losses were significant
financial losses and were brought to the attention that they
were really beyond what we should be expecting. And I guess
that, again, goes to my question about what hands-on direction
the commission is actually giving if, indeed, the counsel is
making so many decisions and we have a 70,000 case backlog, why
we are going after some of these that end up very clearly with
huge, huge losses to the taxpayer.
Ms. Berrien. I don't in any way mean to understate the
significance of any loss because, of course, ultimately in a
case where we have pursued litigation and lose, there are
people who are affected by that decision. So I don't take that
lightly at all, as well as the resources of the agency at
stake.
Chairman Walberg. Let's jump to one of those. It was
Washington State against--a case in Washington State against
Evans Fruit Company. The first case resulted in unanimous jury
verdict for the employer--unanimous. The second case was
dismissed before it even got to trial.
What internal steps does the EEOC plan to take to assess
the reasons for these types of high-profile failures? And
second, do you agree that an employer who successfully defends
EEOC claims through a jury trial should have its attorney fees
reimbursed by the EEOC?
Ms. Berrien. Well, I believe the existing law is clear
about when and how an employer can recover fees, and employers
that believe they are entitled to fees have sought them. In
some instances they have obtained awards of fees; in many
instances they have not. So we respect and adhere to whatever
the existing law is on that point.
In the specific case of Evans Fruit, there is also one
aspect of the case that we are currently seeking
reconsideration by the judge, and that is a retaliation claim.
And the jury verdicts that you have noted, we will ultimately
examine whether there is any basis for taking an appeal, but
that decision has not been made yet. It would be premature.
In terms of the commission and the commission's input,
there are several things that are in the Strategic Enforcement
Plan that specifically go to your question of, does the
commission have appropriate involvement and engagement in how
the resources of the agency are used in litigation? As I have
indicated, the general counsel does report regulatory to the
commission. That is reaffirmed in the Strategic Enforcement
Plan.
In addition, one of the provisions of the Strategic
Enforcement Plan is that at least one case from each of our
districts will come to the commission for consideration, and
some of the major cases of the commission, of course, already
come to the commission, given that there are a number of
criteria set out in our National Enforcement Plan previously
and now Strategic Enforcement Plan that indicate that matters
of significant financial consequence or that will demand
significant resources of the agency or they could generate
significant public attention or publicity among others should
come to the agency, as well as those that involve novel
applications of law or new and potentially new statutes, as
well.
Chairman Walberg. Well, thank you. My time has expired.
I now recognize my ranking member, Mr. Courtney.
Mr. Courtney. Thank you, Mr. Chairman. You know, listening
to the exchange a moment ago I was reminded of my father, who
was a trial lawyer for almost 50 years--lifelong Republican--
and used to say when I was starting out as a young lawyer that
any lawyer who tells you they have won every case is a lawyer
that has never tried a case. And, you know, it is kind of
nature of the business is that, you know, no one--there is--you
know, no one bats 1,000 in the system.
Obviously, if there is, you know, losses it is something
that we all need to be concerned about and learn from those
results, and I am sure, you know, the commission takes that
responsibility seriously.
Again, in your opening comments you talked about the
backlog reduction, which is, in my opinion, quite impressive--
20 percent since 2010. And again, the inflow of cases, though,
which is happening at the same time that you are trying to
address older cases--again, according to the statistics staff
has given me it is about 100,000 cases a year. Is that correct?
Ms. Berrien. That is correct.
Mr. Courtney. And really, logistically, you know, it would
be impossible for the commission to sort of scrutinize every
single one of those cases. I mean, the fact is that you have to
have systems in place where your professional staff is out
there investigating and making decisions about this
disposition. Isn't that pretty much how it runs every day?
Ms. Berrien. Absolutely. As dedicated as the members of the
commission are, there is no way that we can consider or review
100,000 charges of discrimination.
We are very fortunate to have a very dedicated professional
staff that conducts investigations, that mediates charges of
discrimination, that conciliates, and that litigates where
necessary, as well as engaging in extensive outreach and public
education.
Mr. Courtney. And you mentioned 9 cases that went all the
way to verdict just a moment ago, in terms of, you know, some
of the success rate----
Ms. Berrien. Yes, in this fiscal year.
Mr. Courtney. The cases that go that far, again, are almost
an infinitesimal fraction of the 100,000 cases that come in. I
mean, you are out there trying to negotiate and resolve cases,
otherwise you would drown.
Ms. Berrien. Absolutely. And in fact, in our latest
discussion of conciliations, for example, we saw that 40
percent of the matters that reach the point of conciliation are
successfully conciliated. So those matters never reach
litigation, for example.
Our mediation program, which is very well received and
highly regarded, I think, across the spectrum of the bar
resolves successfully thousands of cases or charges of
discrimination every year and recovered a significant amount of
relief for people who were victims of discrimination in the
past year.
So we certainly use mediation, conciliation, and in the
course of our investigation, when and if we determine that
there is no merit to a charge of discrimination, the last thing
that anyone in this agency, particularly given our limited
resources, wants to do is to waste any of those resources by
continuing a meritless investigation.
Mr. Courtney. Right. And you issue reports to sort of break
down on a regular basis in terms of what the, you know, the
results are?
Ms. Berrien. Yes, we do. And we also provide an annual
report, the Performance Accountability Report, to this Congress
every year.
Mr. Courtney. Thank you.
Well, so in terms of trying to grapple with, again, the
backlog, the inflow of new cases, you know, the hard work to go
out and resolve in as many cases as you can, I mean, obviously
that is--relies a lot on your staffing and the individuals.
Sequester is now in full swing since March 1st. Congress can
turn it off if we can come together with an agreement, just
like prior Congresses did when Gramm-Rudman sequester went into
effect in the 1980s and 1990s, but nonetheless, we are not
there, apparently, at this point.
Can you talk a little bit about how you are handling
sequester, particularly in terms of your staffing, furlough
days, layoffs?
Ms. Berrien. Yes. Well first of all, to put context to
this, in 1980 the staffing of this agency was nearly 1,000
people more than it is today. In 1990 the staffing of the
agency was approximately 500 people more than it is today.
Nevertheless, since 1990 the agency has jurisdiction now to
enforce two additional statutes--the Americans with
Disabilities Act and the Genetic Information Nondiscrimination
Act--in addition to the prior authorizations to enforce Title
VII of the Civil Rights Act, the Equal Pay Act, and the Age
Discrimination in Employment Act.
So our jurisdiction has grown; the number of charges of
discrimination have, for the past several years, been at an
historic level of approximately 100,000. During that same
period our funding has decreased significantly; our staffing
has decreased significantly. Today we have approximately 2,300
staff. Last year we instituted a hiring freeze in order to
achieve the cost savings that were necessary to meet our budget
last year.
And in this year, despite efforts to cut other areas of our
budget, we were unable to make the savings that were required
by the sequestration so we are furloughing our employees. At
this point we have called for 5 days of furlough; if necessary,
an additional 3 days are provided in our notice to furlough. So
it has had a real impact on our workforce and we fear it will
have a real impact on our ability to make further progress
towards fulfilling our mission.
Mr. Courtney. I think my time is expired so I will yield
back, but thank you for that important perspective.
Chairman Walberg. Thank you.
And I now recognize the chairman of the full committee, Mr.
Kline.
Mr. Kline. Thank you, Mr. Chairman.
Thank you, Madam Chair, for being here. It is nice to see
you.
Ms. Berrien. Thank you.
Mr. Kline. I very much appreciated that you made the trip
up. We had an opportunity to chat just a couple weeks ago----
Ms. Berrien. Yes.
Mr. Kline [continuing]. So thank you very much for that.
I am very sensitive to the 5-minute clock, and so I want to
pursue a line of questioning sort of quickly here. Picking up,
we discussed this a little bit in the office, and that is the
issue of partnership agreements and the definition of
``employee'' under federal nondiscrimination law that--over
which you have jurisdiction.
Many partnerships in the legal and accounting professions
have voluntarily adopted mutually agreed upon policies for
their retirement, for example. Now, there is no question that
in one of these firms that there are employees that are clearly
covered by nondiscrimination laws, including the Age
Discrimination in Employment Act--the ADEA--but I am not
entirely convinced that when Congress created the ADEA they had
in mind--we had in mind applying this law to prevent law firm
and accounting partners, who are highly educated--or so they
tell me--and well compensated from voluntarily organizing as
they see fit, including adopting retirement policies that they
view to be in their best interest.
So the questions that I have are these, and I will just
give them all to you and then you can sort of respond to them
in--in a group: Can you tell us whether or not the commission
intends to make these mutually agreed upon retirement policies
in the legal and accounting professions a focus of its
enforcement efforts? Two, in light of the Supreme Court
precedent governing the legal treatment of partnerships,
wouldn't you think it best for the commission to come to
Congress for any changes in the law that you might think should
be required?
And then, as we have already started discussing in this
hearing this morning, given the commission's resource
constraints, doesn't it make more sense to focus on truly
vulnerable workers and leave challenges to partnership
retirement policies to individuals? I mean, we have already
talked about the backlog and how much work you have got to do,
and yet, I understand that the commission is looking at some of
these arrangements. It just strikes me that in a period of
scarce resources that might not be the best use of your
resources.
Those are the questions.
Ms. Berrien. Okay. Thank you.
Well, first of all, I would like to note that there are six
enforcement priorities identified in our Strategic Enforcement
Plan, which was adopted in December, and it includes exactly
the areas--some of the areas that you have mentioned, including
protecting immigrant, migrant, and other vulnerable workers,
eliminating barriers in recruitment and hiring, addressing
emerging and developing issues, enforcing equal pay laws,
preserving access to the legal system, and preventing
harassment through systemic enforcement and targeted outreach.
I believe the case you are referring to is the Clackamas
Gastroenterology Associates case, and what that case provides--
--
Mr. Kline. Let me interrupt. I don't want to tie it to a
specific case. There are a number of instances here, so we can
leave the specifics of a case out. It is in general----
Ms. Berrien. I am sorry. I meant the Supreme Court decision
you were referring to.
Mr. Kline. Go ahead.
Ms. Berrien. I am sorry. If I misunderstood you please let
me know.
But the Supreme Court's decision in Clackamas
Gastroenterology requires that basically the way that a
partnership is viewed for purposes of application of the
antidiscrimination laws may vary from case to case. So in the
course of an investigation concerning a possible claim of
discrimination against a person who is a partner in a firm, we
are bound, in part by that Supreme Court decision, to examine
the circumstances and determine whether and how the
antidiscrimination----
Mr. Kline. Excuse me again. The time is about to expire.
In some of these cases there has been no complaint and you
are looking into that arrangement, and it just strikes me again
that that was not the intent of Congress when talking about
employees and protection and nondiscrimination. We weren't
talking about lawyers making huge piles of money, and
accountants and so forth, who are in a different position than
their employees. And yet, I understand that the commission is
proactively looking in some of these cases and I am just
wondering why that would be.
Ms. Berrien. Well, certainly, Congressman, the need for us
to consider all of the relevant factors in making a decision
about whether to litigate a case or even to pursue a directed
investigation might include whether or not the law will be
adequately enforced by private attorneys general, which is
certainly part of what all of the statutes that we enforce
envision or contemplate, that the private bar or private
attorneys general may be well suited to pursue certain claims.
And in our Strategic Enforcement Plan we have recognized that.
That said, without reference to a specific set of facts or
a specific investigation, I would have to say that even under
existing law an examination of the facts that apply to the
business arrangements or the partnership agreements is
necessary under the Clackamas Gastroenterology Associates case.
I can't say that there are no cases involving partners where
there might be a instance of discrimination that would warrant
or be appropriate for the exercise of the commission's
jurisdiction.
As I think you have recognized, without addressing any
specific facts, I think the answer is broadly we would have to
look in an investigation at whether or not, under Clackamas,
that particular partnership would qualify as an employer for
purposes of the statute.
Mr. Kline. That is the reason why I am not a lawyer. I
can't even pronounce the Supreme Court case name.
But I am concerned. I don't think that got to the issue I
was trying to get to. Perhaps we will be able to pursue it
later.
My time is more than expired, and I yield back.
Chairman Walberg. I thank the gentleman.
There are plenty of lawyers. We are glad for colonels.
I now recognize for 5 minutes of questioning, Ms. Bonamici?
Ms. Bonamici. Thank you very much, Mr. Chairman.
And thank you for being here, Chairwoman Berrien.
Guilty--I am one of the lawyers. And I wanted to align
myself with the comments Mr. Courtney made about the legal
system and the need to analyze cases, and sometimes you win,
sometimes you lose. I think maybe Perry Mason didn't lose a
case. But for the most part there are risks involved, and I
know that the EEOC takes steps to analyze cases before you
bring them forward.
I wanted to talk a little bit about one of the priorities
that you have identified in your Strategic Enforcement Plan,
which is eliminating barriers in recruitment and hiring, and I
know that one of the things that the EEOC has discussed is
discrimination against the unemployed. There are a lot of
people out there still who have lost jobs through no fault of
their own, and getting them back to work is something that we
all talk about here in Congress.
But several states, including my state of Oregon, have
passed legislation limiting the use of credit reports in
employment. It is especially timely because so many people who
did lose jobs, through no fault of their own, faced some
financial difficulties, and when employees are not hiring
prospective employees because either because they are
unemployed or because something on their credit score, it only
exacerbates the difficulties faced by people who are trying to
get back to work.
And in the states--I believe there are about eight states
now who have passed legislation limiting the use of credit in
employment--of course, there are exceptions made for industries
where that is relevant--and I wonder, Chairwoman, if you have
looked into whether that practice tends to disproportionately
impact minorities and women and what steps, if any, is the EEOC
taking to prevent employment discrimination based on the
unemployed status or on credit history?
Ms. Berrien. Thank you.
Actually, we have looked at both of those practices as a
commission in public meetings of the commission. In the first
year or so of my tenure at the commission, we conducted
approximately a half a dozen commission meetings on barriers to
hiring and recruitment, and we were particularly sensitive to
several things: one, the fact that a large number of people
would be seeking or--seeking to return or enter to the
workforce in the first place, and we tried to look at practices
that might affect that group. So we looked, for example, at the
impact of the economy on older workers and some practices that
affect older workers.
We also conducted a public meeting on employers'
consideration of credit information and history as a potential
barrier to employment and recruitment. And in fact, I believe
that some of the local laws that have been introduced or passed
in the months since then have actually drawn on the record of
the meeting that we conducted and the testimony that witnesses
presented.
We also conducted a meeting on unemployment or unemployed
status as a potential barrier to employment for job seekers.
And in every instance we were interested in determining whether
and to what extent there was a disparate impact on any
particular group.
In some instances I think we broadened our look so that we
were not only addressing those who might be the obvious
potential groups impacted, but also those who may not. For
example, when we conducted our meeting on credit we did have
someone testify on the impact of this practice for women. When
we conducted a meeting on the unemployed status we looked at
the practice's impact not only on African Americans but also on
other groups that could be impacted, including older workers.
So I think through our meetings we have brought information
into the public sphere that is helpful in those instances where
states and localities have tried to pursue, as well as looking
at our own charges of discrimination and, where appropriate,
investigating if we believe there is a disparate impact or
disparate treatment.
Ms. Bonamici. Thank you. And in just the remaining time, I
know the EEOC enforces the Equal Pay Act, which has been the
law since the 1960s. I support the Paycheck Fairness Act. I
hope we can pass that.
But why is it since equal pay for equal work has been the
law since the 1960s is it the case that women only make about
77 cents to the dollar that men make?
Ms. Berrien. I don't know if I am the best person to answer
the why, but I can say that that is a real priority for us to
close that gap once and for all, and I think we have made some
significant progress in doing that. We have litigated a number
of cases successfully challenging pay disparities--not only pay
disparities affecting women, but in some cases pay disparities
affecting other groups. And we will continue, along with our
enforcement partners in the federal government who are part of
the Equal Pay Enforcement Task Force, to work to close that
gap.
Ms. Bonamici. Thank you. My time is expired.
I yield back. Thank you, Mr. Chairman.
Chairman Walberg. I thank the gentlelady.
And I recognize a doctor on the committee, Dr. Bucshon.
Mr. Bucshon. Good morning.
A couple of things. First of all, I strongly believe all
workers deserve strong protections against employment
discrimination, and I thank you for your work in that area.
A couple things that I am intrigued by, though, is, does it
require a criminal background check or drug testing to be
employed by the EEOC?
Ms. Berrien. We are subject to the same standards that are
set out by the Office of Personnel Management----
Mr. Bucshon. So it is yes or no.
Ms. Berrien. We have at times--I am not sure that we have
required drug tests, but criminal background checks, depending
on the nature of the position, may be required.
Mr. Bucshon. Okay. And can I ask, did you have to have a
criminal background check on yourself or a random drug test
before you were appointed to get appointed to your job?
Ms. Berrien. I certainly did not have a random drug test,
although--and as far as a criminal background check, I was
subject to the FBI clearance and check that I believe all
Presidential appointees are.
Mr. Bucshon. Yes. And do you think--do--in that vein, do
you think that it was important for you to have a criminal
background check before you were appointed to you current
position? Why would that be applicable to you?
Ms. Berrien. Well, I would say this: I want to make clear
that the guidance that the EEOC adopted does not prohibit any
employer--federal government, state or local government, or
private employer--from conducting a criminal background check.
What is relevant under existing law--and this has been
determined by federal courts--is how those results are used and
whether or not the check--whether or not the results are
related to the job in question. And in that case, I believe I
was subject to the same practice that is provided for in the
guidance that we have adopted.
Mr. Bucshon. Thank you. Because we hear all the time,
``Well, Congress passes laws that don't apply to them,'' but it
seems to me that, you know, not being overly critical, that if
you required a criminal background check to get your
appointment or Presidential appointees require criminal
background checks, I don't really see the applicability in
those other than political implications, I will be frankly
honest with you, and I think that is where I have some
difficulty with the guidance where an employer, based on what
they determine is appropriate, can conduct a criminal
background check regardless of what type of employment--and I
see it as an overreach. That is just one of my things.
Now, do you know--do you consider drug use or alcohol abuse
to be a disability?
Ms. Berrien. There have been cases that have determined--
federal cases that have determined that under certain
circumstances not drug abuse or alcohol use but a history of
alcoholism, for example, has been determined in some cases to
be a disability.
Mr. Bucshon. Yes. And I can't totally disagree with that. I
have personal family reasons to agree with you. And as a
medical doctor I realize that these can be classified as
diseases and can be considered a disability in some instances.
And the reason I ask that is the U.S. Steel case, which you
lost so far--do you know how much U.S. Steel pays in workman's
comp payments per year by chance, or what their liability
insurance is for their employees? Just a----
Ms. Berrien. I can't give you a figure, but I am sure it is
substantial.
Mr. Bucshon. So why would the EEOC continue to litigate a
case when it seems to me U.S. Steel is protecting not only the
employee and surrounding employees around them--litigate a case
that clearly, if that employee, for example, made a mistake and
killed another employee or that they would be open to
litigation from the employee's family, they would be open to
litigation from all kinds of sources, plus--or they injured
another person and the company ended up paying workman's comp
payments for years or the federal government had to pay
disability payments forever.
Why would the EEOC pursue a case when it is pretty clear
that, you know, if you are working in a dangerous environment,
in my personal view, it is not inappropriate for people to know
the status of the employee not only for their own protection
but for the protection of their surrounding employees and the
company as it relates to liability, and that would be my
question. Why would you disagree with that?
Ms. Berrien. Well, Congressman, I am not sure that I would
disagree with your premise. We certainly recognize that health
and safety rules and regulations are a part of the backdrop for
some of the laws that we enforce. And similarly, with our
arresting and conviction guidance, we certainly and expressly
recognize that concerns about employee health and safety or
customer safety, among other factors, could be relevant to an
employment decision. So I don't think we disagree about that.
Mr. Bucshon. Okay. Do you think that if a person comes to
be employed--an unemployed person, and a company has--I see my
time is expired.
I will yield back. Thank you.
Chairman Walberg. I thank the gentleman.
I would ask unanimous consent that Representative Susan
Brooks of Indiana, and a member of our full committee, be
allowed to participate in today's hearing.
Without objection, Representative Brooks, you are
recognized for 5 minutes. Welcome.
Mrs. Brooks. Thank you, Chairman.
Hello, Chair Berrien. Nice to----
Ms. Berrien. Good morning.
Mrs. Brooks [continuing]. Be with you today.
I am going to follow up a little bit on a line of
questioning from Congressman Bucshon, because I am a former
United States attorney, but similarly--or I have also been
involved in the criminal justice system as a criminal defense
attorney my entire career, so I have been in the criminal
justice system until most--until the last half a dozen years,
and criminal background check issues have always been an issue
not only for those, you know, coming out of the criminal
justice system but particularly for employers who are looking
to hire and making those important hiring decisions.
And I know that the EEOC did finalize its criminal
background check guidance with--but it was, from my
understanding, without a regard for the directive proposed by
the Senate Appropriates Committee that the guidance was
supposed to have been circulated for public comment at least 6
months before adoption. And it is my understanding that the
report language accompanying the enacted fiscal year 2013 C.R.
directed the EEOC to report to the Appropriations Committee the
steps taken by the EEOC to alleviate that confusion caused by
the criminal background check guidance.
Can you please provide for this committee an update on how
the EEOC's--what is the progress in complying with this
directive? And if you could please expand and share with me--
and I am sorry I didn't get here on time--more information
about the criminal background guidance and what the response
was to the Senate Appropriations directive.
Ms. Berrien. Of course. So we will obviously comply with
the Senate Appropriations Committee directive; the date for
doing so has not arrived yet.
Mrs. Brooks. And I am sorry, what is that date?
Ms. Berrien. I believe the committee--that report language
came out approximately a month-and-a-half ago; I believe we
have another month, more-or-less, to provide that information.
We certainly will do that in a timely manner and we certainly
are going to be prepared to do that.
But I can certainly share with you broadly several things.
First of all, the guidance that we adopted in April of 2012 was
an update of guidance that had actually been in effect since
the 1980s. It was initially adopted when Chair Thomas was at
the agency; it was reaffirmed when Chair Kemp was at the
agency.
We believe, though, that for several reasons, because a
court had indicated that additional support for the guidance
would be useful, because of the burgeoning number of instances
where background checks are conducted not only by screening or
other firms but now increasingly it is possible for one to use
online or other services to conduct background checks, because
of the larger number of people--and I do want to make a
distinction here.
Our guidance concerns employer consideration of arrests and
convictions, and from the passage of the first guidance in the
1980s the agency has always distinguished between arrests and
convictions, given that arrest and the information underlying
an arrest is not subject to the same standards nor is it the
same quantum of proof as a conviction, so I do want----
Mrs. Brooks. Excuse me, Madam Chair, but is--in the
guidance are arrests subject to an employer being entitled to
see arrests?
Ms. Berrien. An employer can request arrest or conviction
records, but the guidance, as it has since the 1980s, indicates
that a record of arrest is not entitled to the same weight or
should not lead to the same consequences as a conviction
record.
Mrs. Brooks. Because there is a very different standard for
a conviction versus an arrest.
Ms. Berrien. Exactly.
Mrs. Brooks. But an employer is still entitled to receive a
list or request from a employee what you have been arrested
for----
Ms. Berrien. An employer can correct--can request that.
Mrs. Brooks [continuing]. And then what they have been
convicted of. And so what is the new--what is the change that
was made and what was the commission's--what happened in the 6-
month public comment period?
Ms. Berrien. Well----
Mrs. Brooks. Was there a 6-month public comment period?
Ms. Berrien. Actually, there were several opportunities for
the public to weigh in on this subject. The commission
conducted public meetings before I arrived, actually, under the
leadership of Chair Earp, on arrest and conviction as a barrier
to employment----
Mrs. Brooks. And I know--I certainly am aware that there
is, but was there a 6-month public comment period?
Ms. Berrien. It was not treated like notice and comment
rulemaking, absolutely--so it was not published for comment in
the Federal Register, nor do we believe it needed to be.
Mrs. Brooks. And so we will, then, in a month or a month-
and-a-half, when you said we will be able to receive what the
EEOC's response is to that directive at that time?
Ms. Berrien. We will absolutely make that submission to the
committee that is required.
Mrs. Brooks. Thank you. Can you let me know--so many state
and local laws require employers to conduct criminal background
checks, so state and local laws may be in conflict with what
the directive is. Is that a possibility?
Ms. Berrien. Well, we recognized that in the guidance and
we did discuss that. But in fact, it is not the guidance that
creates that conflict; it is actually the law itself, which
indicates that as federal law is, Title VII recognizes the
supremacy of federal law.
However, the commission is aware that there may be
instances where in order to comply with federal law a
background check may be required and that that may warrant an
exclusion or a decision in a particular case to exclude an
employee. I think there certainly is the opportunity in the
course of an investigation to present that if that ever
occurred. But we have addressed that in the guidance.
Mrs. Brooks. And I have one last question, if I might, Mr.
Chair.
Chairman Walberg. Without objection.
Mrs. Brooks. Thank you.
So can you please provide for us how EEOC can assure
employers that are either faced with the EEOC guidance or with
the state and local law that they are not going to be subject
to litigation? I mean, if the state and local law is in--is,
you know, in conflict with your guidance, which law is, in your
view and in the commission's view, should the employers be
following?
Ms. Berrien. Well, there would never be a case where our
guidance prohibits an employer from conducting a background
investigation, so if--and that is often the case with state and
local laws. If the state or local law says, ``In order to work
in this setting you must be subject to a background
investigation,'' there is nothing in this guidance that would
prohibit that.
The issue that the guidance addresses in great detail is
what the standards are when an employer, if based on
information they obtain in the guidance, makes a particular
employment decision. And if the defense or the justification is
that a state law requires exclusion of all people with a
particular conviction, I think that would obviously be relevant
to a determination that the commission would make about what
steps would need to be taken next.
Mrs. Brooks. But the commission is allowing employers to
determine certain categories of crimes and convictions that
would preclude employment. Is that correct?
Ms. Berrien. Absolutely. And that is provided for in the
guidance.
Mrs. Brooks. Okay.
Ms. Berrien. Then that, though, would assure that a person
could not bring a suit or would not bring a charge of
discrimination, so we can't provide for that.
Mrs. Brooks. Certainly.
Ms. Berrien. We would have to make the determination based
on all the facts at the time.
Mrs. Brooks. Thank you very much.
Ms. Berrien. Thank you.
Mrs. Brooks. I yield back. Thank you for the additional
time.
Chairman Walberg. I thank the gentlelady, and appreciate
the questions and the responses.
Definitely one committee hearing is not sufficient to get
to the issues to understand, and I think that assures us that
there will be opportunities for the future.
I now recognize the ranking member for any closing comments
he would like to make.
Mr. Courtney. Thank you, Chairman Walberg. And again, I
want to thank you for holding this hearing--again, the first
time EEOC has been invited over here in this Congress or the
prior Congress, and obviously the lively exchange shows that,
again, there is a lot of interest on both sides of the
microphone here in terms of the great work that your commission
conducts to protect, again, the civil rights of all Americans.
And again, I want to compliment you on how open and
responsive and precise your answers were to all the members'
questions. And again, hopefully this is the beginning of a
dialogue between our subcommittee and your commission to,
again, find ways to get better information out about the work
that your commission does, and also look at ways that we can
improve civil rights laws to protect, again, groups and
individuals that are still subject to discrimination.
Again, we have bipartisan legislation, which has been
introduced by Congresswoman Ros-Lehtinen and--and
Representative Polis, the Employment Nondiscrimination Act,
which again, I am hoping our committee will take up sometime
during this Congress. And also the Protecting Older Workers
Against Discrimination Act, which again, has bipartisan
introduction in the Senate with Senator Grassley and Senator
Harkin to, again, address a recent Supreme Court decision which
I think unfairly hinders older Americans from, again, having
their rights protected in the workplace.
And with that in mind, I wanted to introduce two letters
for the record, one from AARP and the other from the Leadership
Conference on Civil Rights and Human Rights, which again,
underscores the work that your commission is doing to protect
older Americans and, again, the need for Congress to, again,
help support the commissions and their efforts. So hopefully
without objection?
[The information follows:]
AARP,
May 21, 2013.
Hon. Tim Walberg, Chair; Hon. Joe Courtney, Ranking Member,
Subcommittee on Workforce Protections, House Education & Workforce
Committee, 2101 Rayburn House Office Building, Washington, DC
20515.
Dear Chairman Walberg and Rep. Courtney: AARP is a nonpartisan,
nonprofit membership organization of people age 50 or older that fights
for the issues that matter most to older Americans, including equal
employment opportunity. On behalf of our more than 37 million members
and all Americans age 50 and older, AARP appreciates the sustained
attention the EEOC has been giving to issues that affect older workers
and workers with disabilities, and we are pleased that you are holding
a hearing to highlight the regulatory and enforcement actions of the
Equal Employment Opportunity Commission (EEOC).
The aging of Boomers, combined with a 25-year trend of Americans
working longer and retiring later, means that our nation's workforce is
getting older. By 2020, all Boomers will be age 55 and older, and the
55+ age group will constitute one-fourth of the workforce. As more
older workers decide to delay retirement because they want to continue
working or, increasingly, because they cannot afford to retire, having
the option to work beyond traditional retirement age is of increasing
importance to older workers, including the one-third of AARP members
who are in the workforce.
Despite the need for older workers to remain in the workforce
longer, significant barriers to their hiring and retention exist. Among
them is the persistence of age discrimination, both blatant and subtle.
In a nationwide survey by AARP in 2012, about two-thirds (64%) said
they believe that people over age 50 face age discrimination in the
workplace. Moreover, about one-third (34%) reported that either they
personally faced age discrimination in the last four years, or know
someone who has. Once older workers lose their jobs, they face much
longer periods of unemployment than younger workers--lasting on average
more than one year. Employment discrimination on grounds of disability
is also particularly challenging for older workers, as a
disproportionate number of workers discriminated against on the basis
of disability are older.
The EEOC must continue to play a vital role in confronting
practices and policies that impair full and equal employment
opportunity for older workers. These include practices such as
mandatory retirement, age limitations on employee benefits by state and
local governments, discrimination against the long-term unemployed, and
inquiries for medical information about employees.
In the regulatory arena, AARP is particularly grateful for and
strongly supportive of the EEOC's work to clarify the law on employment
practices that have a disparate impact on the basis of age. The Supreme
Court previously affirmed the validity of such actions under the Age
Discrimination in Employment Act, and specified the application of the
``reasonable factor other than age'' defense, but the high court
provided no guidance on the parameters of these concepts. The EEOC has
applied its expertise in interpreting the law and issuing regulations
to guide employers and employees. The EEOC's ``reasonable factor other
than age'' regulations were squarely in line with case law, and it is
important that this type of systemic policy guidance be available to
employers as they review the impact that their decisions can have on
older workers.
In the enforcement arena, AARP agrees with the Commission's
targeting of barriers in recruitment and hiring, including hiring
discrimination based on age, as a national priority in its Strategic
Enforcement Plan. Hiring discrimination, which has been exacerbated
during this Great Recession, is a huge problem for older workers, but
is very difficult for job applicants to detect and take action against.
AARP has urged the Commission to use its greater ability to detect and
bring systemic cases in targeted industries in which age stereotyping
is prevalent. The Commission's inclusion of enforcement strategies
aimed at discriminatory screening tools such as date-of-birth screens
on job applications is also key.
Over the last four years, the Commission has given broad attention
to a wide variety of issues of great concern to older workers. These
include public hearings on:
Age Discrimination--In the depths of the recession, the
EEOC held public hearings on ``Age Discrimination in the 21st Century--
Barriers to the Employment of Older Workers,'' and on the ``Impact of
the Economy on Older Workers.''
Hiring Discrimination--Once jobless, older workers are far
more likely than younger workers to experience long-term unemployment.
Organizations and media reports uncovered a disturbing trend in which
employers would refuse to consider the applications of jobseekers who
were currently unemployed. The EEOC has held hearings on: ``Disparate
Treatment in 21st Century Hiring Decisions,'' and ``Out of Work? Out of
Luck: Treatment of Unemployed Job Seekers.''
Caregiver Discrimination--People are living longer, and
the vast majority of older adults with chronic, disabling conditions
are being cared for by family members. Midlife and older workers
juggling family eldercare responsibilities will be increasingly common,
prompting the EEOC to issue best practices and hold a hearing,
``Unlawful Discrimination Against Pregnant Workers and Workers with
Caregiving Responsibilities,'' on the equal employment issues attendant
to the treatment of family caregivers.
Credit Report Screens--Since older workers experience
longer spells of unemployment (increased risk of struggling to pay
bills and debts), and are more likely to experience medical problems
and medical debt, the indiscriminate use of credit reports in the
screening of job applicants raises many issues for older workers. AARP
was pleased that the EEOC held a hearing on ``Employer Use of Credit
History as a Screening Tool.''
Employer Wellness Programs--Employer-sponsored wellness
programs were expanded under the Affordable Care Act. The EEOC recently
held a hearing on ``Wellness Programs Under Federal Equal Employment
Opportunity Laws,''
The EEOC has appropriately and effectively used these hearings to
gather diverse views, and to inform updates of enforcement guidance and
help focus its enforcement actions.
AARP strongly supports the actions of the Commission to address the
needs of older workers for fairness and equal opportunity, and looks
forward to working with both the EEOC and this Committee on these
important issues. If you have any questions, please feel free to
contact Debbie Chalfie of the Government Affairs, Financial Security
and Consumer Affairs staff at (202) 434-3723.
Sincerely,
Joyce A. Rogers, Senior Vice President,
Government Affairs.
______
May 21, 2013.
Hon. Tim Walberg, Chair; Hon. Joe Courtney, Ranking Member,
Subcommittee on Workforce Protections, House Education & Workforce
Committee, 2101 Rayburn House Office Building, Washington, DC
20515.
Dear Members of the Education and the Workforce Committee: On
behalf of the Employment Task Force of The Leadership Conference on
Civil and Human Rights (``The Leadership Conference''), a coalition
charged by its diverse membership of more than 200 national
organizations to promote and protect the rights of all persons in the
United States, we write to applaud Chair Jacqueline Berrien for the
successful and critical work of the Equal Employment Opportunity
Commission (``the Commission'') under her guidance.
The Commission serves a vital function in ensuring workplaces free
from unlawful discrimination based on race, color, religion, sex,
national origin, age, and disability. The Commission's critical mission
helps to promote economic security for all workers and their families.
During Chair Berrien's term, the Commission has strengthened efforts to
prevent discrimination through outreach, education, and technical
assistance and has pursued fair and vigorous enforcement of the law
when evidence of discrimination is uncovered. We write to highlight
some of the Commission's recent accomplishments under Chair Berrien's
leadership.
Since Chair Berrien assumed her role in April 2010, the Commission
has received approximately 300,000 charges of employment
discrimination. In the last three years, the Commission has recovered
over $1.2 billion in lost wages and other relief for workers who faced
unlawful discrimination. Under Chair Berrien's leadership, the
Commission has represented some of the most vulnerable workers in this
country.
We applaud the Commission's enforcement efforts to investigate and
challenge not only individual cases of discrimination, but also
systemic violations of the law, pursuant to its clear legal authority.
Systemic enforcement is crucial to the Commission's ability to
effectively combat pattern-or-practice discrimination. Victims of
discrimination may not be aware that they have been subject to
discrimination and they may be less inclined to bring an individual
complaint due to a lack of resources or fear of retaliation. Moreover,
the Commission may be better positioned to pursue systemic cases that
the private bar is less likely to take on, for example, in cases where
the monetary relief might be limited, the focus is on injunctive
relief, or the victims are in underserved communities.
An important milestone in the Commission's recent work was the
issuance in April, 2012, of an updated ``Enforcement Guidance on the
Consideration of Arrest and Conviction Records in Employment Decisions
Under Title VII of the Civil Rights Act of 1964.'' This Guidance serves
to inform employers of the agency's interpretation of the relevant law
and provides information about appropriate methods for employers to use
criminal history records in compliance with the requirements of the
statute. The Enforcement Guidance is a thoughtful, flexible, and
workable roadmap for employers to follow. The Guidance explains to
employers how to conduct and use any appropriate background checks they
reasonably require, without violating the rights that job applicants
have under Title VII. As reflected in testimony presented at a briefing
on December 7, 2012, before the United States Commission on Civil
Rights, for example, from the Society for Human Resource Management,
the Enforcement Guidance has been generally well received by employers.
We are attaching a copy of extended comments that some members of the
Task Force submitted to the Commission on Civil Rights, based on the
record of the Briefing.
Beyond legal and administrative enforcement, the Commission serves
as a crucial resource to employers by providing training, technical
assistance, and guidance concerning compliance with relevant civil
rights laws. The Commission conducts thousands of outreach events each
year for the public, with a special emphasis on underserved
communities, small businesses and workers who would otherwise have
limited access to information about their rights under equal employment
laws. In the last three fiscal years, over 1.1 million people
participated in one of the Commission's no-cost educational, training
and outreach events.
Thank you for your attention to the Commission's important work to
ensure equal employment opportunity in the nation's workplaces and to
promote economic security for all workers and their families. If you
have questions or if we can be of assistance, please contact Lisa
Bornstein, Senior Counsel at the Leadership Conference on Civil and
Human Rights at [email protected] or (202) 466-3311, or Sarah
Crawford, Co-Chair of the Employment Task Force and Director of
Workplace Fairness at the National Partnership for Women & Families at
[email protected] or (202) 986-2600.
Sincerely,
Leadership Conference on Civil and Human Rights, National
Partnership for Women & Families.
Cc:
Rep. John Kline
Rep. Tom Price
Rep. Duncan Hunter
Rep. Scott DesJarlais
Rep. Todd Rokita
Rep. Larry Bucshon
Rep. Richard Hudson
Rep. Robert Andrews
Rep. Tim Bishop
Rep. Marcia Fudge
Rep. Gregorio Sablan
Rep. Suzanne Bonamici
______
Chairman Walberg. Without objection, hearing none, they
will be entered into the record.
Mr. Courtney. Great.
And so lastly, I just want to say that, you know, you got
some homework from some of the members in terms of the report
that the Senate required, and I am sure you are going to share
that with us.
I would also ask that you keep us up-to-date regarding the
damage that sequestration is doing to your hard work to
eliminate the backlog of cases, which again, I think--to me,
that is the fundamental challenge which your commission is
confronted with and doing great work to reduce, and--but we
don't want to go backwards here. And with a smaller staff, as
you pointed out, than you had 10 years ago and 20 years ago,
you are still making that progress, but to have furlough days
imposed clearly is going to hinder that effort.
And it is important for us to know because we can still
turn off sequester. I mean, that is still in our power as
Congress--something which, again, historically, looking at
Gramm-Rudman sequestration over the 1980s and 1990s was done
repeatedly by our predecessors, and we are failing the American
people by not getting our arms around that and turning it off.
So again, hopefully you will share that with our
subcommittee in terms of your efforts to comply with the Budget
Control Act.
And again, I want to thank you for your outstanding
testimony today.
And with that I would yield back.
Chairman Walberg. I thank the gentleman, and I would concur
with a good number of those statements.
And appreciate the opportunity to hear direct responses on
questions. I think there is still, of course, some uncertainty
about the why and wherefore of certain cases, and, you know, I
would make it very clear, I don't expect you to win every case.
I am not a lawyer; I am a pastor and I didn't expect to save
every person in my congregation either, or even get their
tithe.
But I do expect that we have agencies that serve the good
of the people and do the will of Congress, that continue to
look to the priorities that need to be set in sequestration
time. I agree, there, that that adds a challenge, I think an
unnecessary challenge, and we wish that there could be a
decision that would enable us to set the priorities of
government and do the appropriate things without being caught
in this design.
But it is what it is, and so in recognition of that, any
efforts that the 5-member commission can make to make sure that
employees of the EEOC as well as the general counsel keep any--
keep to the minimum any perceived--and I say perceived because
perception is a big sense when we deal with a department this
important and this impacting in our society--that we make sure
that any so-called fishing or agenda-producing efforts are
controlled for the best benefit of those claims that have been
made, those concerns that have been expressed by employees that
we have in the backlog and will be having further are addressed
first.
I think it is our concern that there has been a perceived,
increasingly-aggressive approach by the EEOC to enforcing
federal nondiscrimination laws with questionable benefits for
employees and little consideration of the larger consequences
of job creation, which is important that we keep that balance,
that future guidance in a greater way be given the opportunity
for public comment and review, and so that reality prevails in
how we deal with best practices and actual situations, whether
it be with a case like U.S. Steel or Evans Fruits, or a number
of cases in relation to not simply employment contractual
relationships, but employer contractual relationships of
partners that have been made with all good efforts to make sure
that there are continuing opportunities for new partners to
come in and that there is opportunity for a change in the
diversity makeup that would not take place if we hold hard and
fast to saying that these unique settings that are not employee
settings but are employer--actual employer settings, partner
settings, are dealt with their unique situation kept in mind.
And so with no efforts to diminish the good work that is
being done by the EEOC and the commission and your leadership
on that commission, Ms. Berrien, I would say that it is good
for us to be reminded that that fine line, in an age of great
necessity at producing more jobs, more opportunities, making
sure that best practices are carried out at the workplace, that
sometimes the actual workplace knows the best practice better
than the bureaucracy or Congress, are considered, and the
results being that we have a safer, larger workforce with as
little discrimination as we possibly can have
It will never be perfect; I understand that, but making
sure that we give our greatest efforts to finding those
specific cases first and eradicating that from our workforce
and our employer base.
Having said that, with no further responsibilities or
information to come before this committee, I will call it
adjourned.
[Additional submission of Chairman Walberg follows:]
Washington, DC, June 6, 2013.
Hon. Tim Walberg, Chairman,
Subcommittee on Workforce Protections, Committee on Education and the
Workforce, Washington, DC 20515.
Dear Chairman Walberg: The U.S. Chamber of Commerce, the world's
largest business federation representing more than three million
businesses and organizations of every size, sector, and region,
appreciates this opportunity to provide a statement for the record as
part of the Subcommittee's May 22, 2013 hearing entitled ``Examining
the Regulatory and Enforcement Actions of the Equal Employment
Opportunity Commission.'' The purpose of this letter is to provide you
with a summary of our members concerns regarding the Equal Employment
Opportunity Commission's (``EEOC'' or ``Commission'') enforcement and
sub-regulatory and agendas.
At the outset, we wish to thank you for holding a hearing on this
important subject. The laws and regulations that the EEOC implements
and enforces are very important, but they are also very detailed and
technical, requiring an investment of significant time and resources to
fully understand. We wish to express our appreciation for the
Subcommittee making EEOC oversight a priority. We look forward to
working with you and other members of the Subcommittee on these issues
in the coming months.
In this letter, we present the concerns of our Members with EEOC
enforcement and sub-regulatory initiatives. We wish to emphasize that
it is not our intent in this letter to debate the merits of any law or
regulation that the EEOC is charged with implementing and enforcing.
Instead, these comments focus on the manner in which the EEOC is
carrying out its responsibilities under these laws and regulations.
EEOC's Abusive Investigatory Tactics
It should be emphasized that enforcement tactics can be difficult
to summarize in a letter such as this. Many concerns seem outrageous on
their face. Others might not seem egregious standing alone, but
repeated time and again or combined with other abuses, become more
serious. With this in mind, set forth below are several examples of
recent EEOC enforcement abuses that we have heard from our Members:
After the investigation, but before issuing a
determination, EEOC investigators send the employer a letter, urging a
mid-five figure settlement and outlining a variety of bad facts which
show discrimination. Within days of rejecting these offers, the EEOC
then dismisses the allegations entirely, making the whole basis of the
original letter intellectually dishonest and making a supposedly
neutral investigation appear to be nothing more than a ``shakedown.''
An investigator refused to allow the employer to mediate
the charge, claiming that the company does not negotiate in good
faith.\1\ This position was blatantly inaccurate given that company had
successfully mediated a matter with the same investigator only a few
months earlier. The employer's request for the case to be reassigned to
another investigator was denied.
Several examples of instances where employees have claimed
that they had been terminated unlawfully, when in fact they were either
still employed or had resigned voluntarily. The employers were then
obligated to respond to such allegations with a position statement in
order to simply show that a termination had not occurred. This response
requires the employer or its representatives to, among other things,
review the complaint, obtain documents, interview managers, and draft
the legal response. Some Members estimate that preparing such a
response can easily cost $3000 to $4000.
Pursuing investigations despite clear evidence that any
alleged adverse action was not discriminatory--such as an employee
caught on videotape leaving pornography around the workplace.
Investigators refusing to close cases that are several
years old by continually making additional requests for information.
Investigators refusing to close cases, even where the
employer, employee and union have all agreed to a private settlement of
the matter at hand.
Failing to engage in good faith conciliation in order to
pursue a case which the EEOC eventually lost on summary judgment,
costing the employer several hundred thousand dollars in attorneys'
fees and costs.
Continually attempting to communicate directly with
employers rather than through employers' counsel.
Making overly-burdensome requests for information and
issuing subpoenas which are sweeping in scope and not sufficiently
related to the underlying investigation.
Demanding that the employer turn over workplace policies
that are completely irrelevant to the underlying charge.
Various issues related to EEOC investigators' ``fact-
finding conferences,'' such as:
Making these conferences mandatory; and holding them prior
to any investigation and prior to permitting the employer to submit a
statement of position or a statement of facts.
Conducting these conferences in a confrontational and one-
sided manner in which EEOC investigators aggressively question
employers, but refuse to permit employers' counsel to speak.
Making unprofessional and prejudicial statements during
conferences, such as exclaiming that, ``it is well known that
[employer] has a pattern and practice of discriminating and retaliating
against its employees.''
EEOC's Abusive Litigation Strategy
The anecdotes catalogued above were personally described to Chamber
staff by concerned Members. However, there are also myriad public
examples of the EEOC's irresponsible enforcement efforts--particularly
once they have entered the litigation stage.\2\ These instances have
most notably been demonstrated in a litany of federal court opinions in
which federal judges have awarded attorneys' fees and costs to
employers who were subjected to the EEOC's overzealous enforcement
tactics.
In one of the most well known examples of the EEOC's reckless
enforcement agenda, the U.S. Court of Appeals for the 8th Circuit
largely affirmed a district court's dismissal of an EEOC class action
lawsuit which alleged sexual discrimination but failed to identify the
alleged victims of discrimination.\3\ The 8th Circuit agreed with the
district court that the EEOC stonewalled the company in explaining who
it sought to represent and made no meaningful attempt at conciliation.
As a result of the EEOC's outrageous litigation strategy, the District
Court ordered the agency to pay the employer almost $4.5 million in
attorneys' fees and expenses.\4\ The 8th Circuit noted the district
court's description of the EEOC's tactics in the case:
There was a clear and present danger that this case would drag on
for years as the EEOC conducted wide-ranging discovery and continued to
identify allegedly aggrieved persons. The EEOC's litigation strategy
was untenable: CRST faced a continuously moving target of allegedly
aggrieved persons, the risk of never-ending discovery and indefinite
continuance of trial.
Additionally, a federal court in New York dismissed a pregnancy
discrimination lawsuit filed by the EEOC, ruling that the Commission
did not present sufficient evidence to establish that the employer
engaged in a pattern or practice of pregnancy discrimination.\5\ The
EEOC, which represented 600 women against the employer, based its claim
on anecdotal accounts that the company did not provide a sufficient
work-life balance for mothers working there. The Court ruled that the
law does not mandate work-life balance, and that employers are not
required by law to treat pregnant women and mothers better or more
leniently than others. The Court criticized the EEOC for using a ``sue-
first, prove later'' approach, noting that, ``'J'accuse!' is not enough
in court. Evidence is required.''
In a race discrimination case, the EEOC alleged that a staffing
company's blanket policy of not hiring individuals with a criminal
record had a disparate impact on African-Americans.\6\ However, the
company simply did not have a blanket no-hire policy. Despite becoming
aware of this issue, the EEOC proceeded with the litigation anyway. The
U.S. District Court for the Western District of Michigan determined
that ``this is one of those cases where the complaint turned out to be
without foundation from the beginning.'' As a result, the Court ordered
the EEOC to pay a total of $751,942.48 for deliberately causing the
company to incur attorneys' fees and expert fees when the agency should
have known that the company did not have the blanket no-hire policy.
Similarly, in a case alleging discrimination under the Americans
with Disabilities Act (``ADA''), the Commission continued to litigate
even when it became clear that the case had no merit.\7\ Specifically,
the EEOC admitted that the alleged victim of discrimination could not
perform the essential functions of the job but ``continued to litigate
the * * * claims after it became clear there were no grounds upon which
to proceed.'' Thus, the EEOC's claims were ``frivolous, unreasonable
and without foundation.'' The district court dismissed the claim and
awarded the employer over $140,000 in attorneys' fees and costs. The
Court of Appeals affirmed.
Wasting Resources in Challenging Uncontroversial Policies
Recently, the EEOC has challenged several employers' workplace
policies which have been in effect for years and have been voluntarily
agreed to by all interested parties. In challenging these policies, the
Commission has likely expended significant time and resources. Yet even
if the EEOC is eventually successful in invalidating these policies,
any supposed benefits of its efforts will be dubious at best, as it is
unclear who the Commission is protecting in these instances.
Targeting Voluntary Partnerships
For example, the Wall Street Journal recently published a story on
the EEOC's investigation into PricewaterhouseCoopers (``PwC'').\8\ The
Commission alleges that the firm's partners are actually employees, and
that the firm's mandatory retirement policy therefore violates the Age
Discrimination in Employment Act (``ADEA'').
According to the Wall Street Journal, the Commission has demanded
that PwC eliminate the retirement policy.
The EEOC's legal theory conflicts with its own existing guidance on
partnerships and misapplies the law on this issue as interpreted by the
Supreme Court.\9\ Even putting those issues aside, one wonders whether
pursuit of such a case is the best use of the Commission's resources.
After all, the challenged retirement agreement concerns partners who
are retiring from a major U.S. accounting firm--hardly a vulnerable
group in need of protection.\10\ These individuals became partners
knowing about and agreeing to this retirement policy, and have
benefitted from the partnership structure while they were partners.
Pursuant to the policy's terms, these partners enjoy a significant
retirement pension supported by current partners.
If the EEOC chooses to sue PwC, the litigation will not aid or
protect vulnerable workers but will simply force the company to abandon
a policy that its partners themselves agree is in the business' best
interest. EEOC's harassment of PwC--and, potentially, all other
partnerships--is not only an abuse of its enforcement authority, but
also an incredible waste of resources.
Challenging Workplace Safety Policies
In another case, the EEOC inexplicably challenged a company's
common sense efforts to ensure a safe workplace in a potentially
hazardous industrial environment.\11\ In the EEOC's case against U.S.
Steel, the employer performed random drug and alcohol testing on its
probationary employees pursuant to the terms set forth in the
collective bargaining agreement it entered into with United
Steelworkers of America (USW). The EEOC has challenged this policy as
violative of the ADA.
Working conditions at the plant in question require strict
adherence to safety rules. Employees work on or near coke batteries,
which contain molten coke that can be as hot as 2,100 degrees
Fahrenheit. The working areas are very narrow, are sometimes at
dangerous heights and are located among large industrial machinery and
gasses that are both toxic and combustible. Quite clearly, the drug and
alcohol tests are performed in order to ensure a safe workplace. The
EEOC might have realized why such tests are so important--and why both
the employer and union agreed to them--if investigators and simply
asked about the reasons for the policy, or visited a U.S. Steel
facility. EEOC investigators did neither.
Instead, the EEOC blew through the conciliation process and filed
suit against both U.S. Steel and USW alleging that the random drug and
alcohol testing violates the ADA, which prohibits workplace medical
exams that are not ``job-related and consistent with business
necessity.'' \12\ U.S. Steel argued that the testing is appropriate as
job-related and as a business necessity because it enables them to
detect impairment on the job. The district court agreed and granted
summary judgment for the company. The court noted that ``safety is a
business necessity and the testing policy genuinely serves this safety
rationale and is no broader or more intrusive than necessary.''
That the EEOC pursued such a claim against a policy so that was so
clearly related to workplace safety is bad enough. However, the
Commission has ``doubled-down'' on this strategy and has appealed the
decision, thereby wasting even more resources in pursuit of a
nonsensical claim.
Issuing Sub-regulatory Guidance on Employers' Use of Criminal
Background Information
The EEOC also pushes its enforcement agenda in the sub-regulatory
arena. Recently the Commission issued guidance concerning employers'
use of criminal background information entitled, Enforcement Guidance
on the Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII of the Civil Rights Act of 1964, as amended
(the Guidance). Although having a criminal record is not specifically
protected by Title VII,\13\ the EEOC takes the position that because
``incarceration rates are particularly high for African American and
Hispanic men,'' \14\ employers' use of criminal background information
when hiring may have a disparate impact on these individuals.
Unfortunately, the EEOC did not publicly release a draft of its
Guidance for the public to have an opportunity to provide comment. This
is contrary to the strong policy favoring pre-adoption notice and
comment on guidance documents.\15\ Pre-adoption notice and comment
would have helped the EEOC arrive at Guidance that better reflects the
law while limiting controversial elements of the proposal.\16\ This
lack of transparency is even more troubling considering the fact that
the Guidance became effective upon publication, giving employers no
time to reconsider policies and practices in preparation for its
implementation.
The Guidance contains substantive flaws as well, the first being
the suggestion that employers should conduct ``individualized
assessments'' of candidates before any final employment decision is
made. According to the Guidance, the individualized assessment
essentially gives excluded candidates an opportunity to explain why an
employer's screening policy should not apply to them (e.g., that the
background check yielded incorrect information).
Although the Guidance does not have the force of law, it is not
unreasonable to assume that many employers will likely conclude that it
does, and that ``individualized assessments'' are now required under
federal law; or, at the very least, that failure to follow the Guidance
will be used as evidence of non-compliance. The Guidance is also not
sufficiently specific as to under what circumstances an employer should
utilize individualized assessments and how they are to be conducted.
For instance, must a daycare employer conduct an individualized
assessment of a job candidate who has been convicted of a violent crime
against a child? Commissioner Barker, in her separate statement
opposing the Guidance, recognized how confusing the Guidance could be
to employers: ``[T]he only real impact the new Guidance will have, will
be to scare business owners from ever conducting criminal background
checks.''
Furthermore, the Guidance notes that state and local laws are
preempted by Title VII if they ``require or permit the doing of any act
which would be an unlawful employment practice under Title VII.'' In
other words, the fact that an employer's criminal screening policy was
issued in order to comply with state or local law will not be a defense
to an allegation of disparate impact discrimination. Unfortunately, the
Guidance offers no help to those employers in situations in which there
is a potential conflict between state and federal law, and employers
cannot be expected to perform their own preemption analyses. Although
employers should not be subject to undue scrutiny by the EEOC simply
because they are complying with state laws, the Guidance indicates that
this could be a real possibility.\17\
The Commission's Own Limitation on its Oversight Authority
The underlying problem with the enforcement abuses described above
is the fact that the Commission has not implemented the appropriate
safeguards to ensure it is not wasting resources by pursuing non-
meritorious litigation. This may be because a significant amount of
litigation authority placed by statute in the hands of the
Commissioners has been delegated to the General Counsel. It may also be
partially attributed to subsequent delegation of authority to District
Offices. In comments submitted to the Commission during the development
of its Strategic Enforcement Plan (SEP), the Chamber questioned whether
the Commission was exercising sufficient oversight of that delegation
and whether the continued delegation is appropriate in light of the
failure to address these problems.
Specifically, the Chamber noted that the officials charged with
setting Commission policy must have a direct stake in the
implementation of that policy in the context of litigation.
Unfortunately, the Commission reaffirmed this delegation of
authority in the final SEP, although it does require ``[a] minimum of
one litigation recommendation from each District Office [to] be
presented for Commission consideration each fiscal year.'' Many
employers believe that this minor change will do little to improve the
Commission's oversight function. This is primarily because the
Commission files much more than 15 lawsuits each year (the number of
EEOC District Offices), and because the District Offices are likely to
submit uncontroversial cases simply to satisfy this requirement. In her
comments for the record, Commissioner Barker noted that she is ``very
concerned about the Commission's delegation of most of its litigation
authority to the General Counsel.'' \18\ With the reaffirmance of this
delegation of authority, the Commission severely restricts its ability
to reign in the enforcement abuses described above.
Conclusion
We wish to thank you for taking the time to hold this important
hearing on EEOC oversight. These comments only begin to summarize the
very great concern that we have with the EEOC's enforcement and policy
agenda. We look forward to working with you as you continue to examine
these important issues. Please do not hesitate to contact us if we may
be of assistance in this matter.
Sincerely,
Randel K. Johnson, Senior Vice President,
Labor, Immigration and Employee Benefits.
James Plunkett, Director,
Labor Law Policy.
endnotes
\1\ The EEOC has a statutory duty to engage in conciliation before
filing a formal complaint. See 42 U.S.C. Sec. 2000e-5(b). The policy
rationale behind this requirement is simple: needless litigation should
be avoided and if compliance may be obtained through informal means,
that is preferable to expending the significant resources litigation
requires.
\2\ The Chamber has previously notified the EEOC of its concern
regarding the Commission's pursuit of meritless charges and suggested
potential solutions. See e.g., Johnson, Randel K. STATEMENT OF THE U.S.
CHAMBER OF COMMERCE TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION.
Small Business Realities, Discrimination Laws and the Equal Employment
Opportunity Commission, Hearing, December 9, 1998.
\3\ EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012).
\4\ In the 8th Circuit decision, although the court ruled against
the EEOC on almost all counts, it did revive a few claims. Accordingly,
the attorneys' fees and expenses award was vacated, without prejudice,
since the employer was no longer a ``prevailing'' party.
\5\ EEOC v. Bloomberg L.P., 778 F. Supp. 2d 458, 462 (S.D.N.Y.
2011).
\6\ EEOC v. Peoplemark, Inc., 2011 U.S. Dist. LEXIS 38696 (W.D.
Mich. Mar. 31, 2011).
\7\ EEOC v. Tricore Reference Laboratories, 2012 U.S. App. LEXIS
17200 (10th Cir. 2012).
\8\ Discriminating Against Partnerships, WALL STREET JOURNAL, June
3 2013, available at http://online.wsj.com/article/
SB10001424127887323855804578511693604180764.html?mod=WSJ--Opinion--
AboveLEFTTop
\9\ See Clackamas Gastroenterology v. Wells, 538 US 440 (2003).
\10\ The story notes that these partners are compensated in the
``seven-figure range.''
\11\ EEOC v. U.S. Steel Corp., No. 10-1284 (W.D. Pa. Feb. 20,
2012).
\12\ See 42 U.S.C. 12112(d)(4)(A).
\13\ The EEOC administers Title VII of the Civil Rights Act of
1964, which prohibits discrimination on the basis of race, color,
religion, sex, or national origin. See 42 U.S.C. Sec. 2000e-2(a).
\14\ See EEOC ENFORCEMENT GUIDANCE ON THE CONSIDERATION OF ARREST
AND CRIMINAL CONVICTION RECORDS (April 25, 2012), Section II.
\15\ The Office of Management and Budget, Final Bulletin for Agency
Good Guidance Practices, 72 Fed. Reg. 3432, 3438 (Jan. 25, 2007) states
the following: ``Pre-adoption notice-and-comment can be most helpful
for significant guidance documents that are particularly complex,
novel, consequential, or controversial. Agencies also are encouraged to
consider notice-and-comment procedures for interpretive significant
guidance documents that effectively would extend the scope of the
jurisdiction the agency will exercise, alter the obligations or
liabilities of private parties, or modify the terms under which the
agency will grant entitlements. As it does for legislative rules,
providing pre-adoption opportunity for comment on significant guidance
documents can increase the quality of the guidance and provide for
greater public confidence in and acceptance of the ultimate agency
judgments.''
\16\ In October of 2010, the EEOC conducted a hearing on employers'
use of credit information. It is expected that some form of guidance
will be issued. The Subcommittee should encourage the EEOC to provide
an opportunity for the public to comment in writing on any such
guidance.
\17\ See, e.g., Waldon v. Cincinnati Public Schools, 1:12-CV-00677
(S.D. Ohio, April 24, 2013).
\18\ See COMMENTS FOR THE RECORD, February 20, 2013 Public
Commission Meeting on the Implementation of the EEOC's Strategic Plan
for Fiscal Years 2012-2016.
______
[Additional submissions of Mr. Courtney follow:]
Prepared Statement of the National Council of EEOC Locals,
No. 216, AFGE/AFL-CIO
The National Council of EEOC Locals, No. 216, AFGE/AFL-CIO (``the
Council'') is the exclusive representative of the bargaining unit
employees at the Equal Employment Opportunity Commission (EEOC),
including investigators, attorneys, administrative judges, mediators,
paralegals, and support staff located in 53 offices around the country.
The Council thanks you for the opportunity to share our views on the
record regarding the May 22, 2013 hearing before the Subcommittee on
Workforce entitled ``Examining the Regulatory and Enforcement Actions
of the Equal Employment Opportunity Commission.''
EEOC has historically worked within a tight and often frozen
budgets, even while adding jurisdiction over new laws. However, the
budget situation worsened for EEOC, even before the current
sequestration. In FY12 a 2% across the board cut in FY12 reduced the
budget to $360M from $367 in FY10 and FY11. This was the first budget
cut in EEOC's history. The original FY13 continuing resolution (CR)
carried over the FY12 cut for the first two quarters of FY13. Now with
sequestration, EEOC must cut an additional $18M or 5% in FY13. These
cuts come on the heels of five years of record high EEOC charge
filings. Prior to sequestration, EEOC had already lost 10% of its
staff, leaving the agency with only 2,245 FTEs nationwide. Now, EEOC
has furloughed the entire staff, but not contractors, for 5 days, to
absorb a shortfall that the agency stated it was unable to find from
other expenses. After a reassessment period to take place between
July1-12, EEOC will decide whether to furlough staff an additional 3
days.
Barring a change to the law, sequestration will remain in effect
for 10 years. Therefore, EEOC, like its sister agencies in the Federal
government, must determine the best course for absorbing this fiscal
year's reduction in funding, which has been prorated this year to 5%.
In subsequent years of sequestration EEOC must be prepared to operate
within budgets reduced by 8.2%.
Typically the impact of sequestration has focused upon larger
cabinet level agencies.
Significantly, this was not only the first hearing that this
Subcommittee has had this Congress on EEOC, but the first hearing since
the start of sequestration. Therefore, the hearing was an excellent
opportunity to seek further information into the effects of
sequestration on EEOC and its stakeholders, including workers,
employers, and the agency's own employees.
In fact, Chair Berrien was questioned on sequestration by Ranking
Member Joe Courtney, who inquired, ``Sequester has been in full swing
since March 1. Can you talk about how you are handling it in terms of
staffing?''
Chair Berrien provided context, explaining that EEOC currently has
approximately 2,300 employees.\1\ She stated that in 1980 EEOC had
1,000 employees more than today. In 1990, EEOC had more 500 more than
today. Since 1990, Congress has added enforcement over the Americans
with Disabilities Act and the Genetic Information Nondiscrimination to
the EEOC's jurisdiction. Chair Berrien also discussed that charges have
been at an historic level, i.e., over 100,000. During this time EEOC
has had funding decreases and a hiring freeze, which goes back to 2011.
---------------------------------------------------------------------------
\1\ The overall staffing number for FY13 is 2,226, according to
EEOC's Congressional FY14 Budget Justification.
---------------------------------------------------------------------------
After Chair Berrien provided this background, she followed with a
brief direct response to Ranking Member Courtney's sequestration
question.
Chair Berrien: Despite efforts to cut other areas of our budget we
were unable to make the savings required by sequestration. We are
furloughing staff five days and if necessary the notice adds an
additional three days. This will have a real impact on our workforce
and ability to make further progress towards our mission.
This statement brings to bear tremendous concerns. Unfortunately,
time constraints prevented follow up to Chair Berrien's response. The
response raises more questions than answers for this Subcommittee.
Chair Berrien's answer regarding the impact of sequestration is worth
breaking down into greater detail.
``Despite efforts to cut other areas of our budget we were unable to
make the savings required by sequestration''
What efforts were actually made by the EEOC to achieve savings,
other than furloughs?
The Office of Management and Budget advised agencies this past
January to look for savings including cutting temporary employees and
reviewing contracts to ``determine where cost savings may be
achieved.'' Did EEOC cut temporary employees? Did EEOC review its
contracts? Did it make modifications to contracts based on this review?
Does the agency have any contracts with option years? Has the agency
reduced or negated any of the option year spending? What savings were
achieved? Are contractors working while government employees are on
furlough? What savings, if any, are being required from EEOC's fifteen
field office budgets? What savings, if any, is EEOC requiring to its
travel budget? EEOC's website indicates that the agency is going
forward with public training seminars, despite other agencies, such as
GSA, cutting such seminars. Are training seminar budgets reduced at
all?
EEOC's union, the National Council of EEOC Locals, No. 216, AFGE/
AFL-CIO, has created an initiative to identify areas where savings
could be captured and efficiencies implemented.\2\ The Union advocates
reducing furloughs through savings and efficiencies, such as: modifying
contracts and reducing option year spending; cutting management travel
that could be conducted by video-teleconference; double-sided printing;
reducing space through voluntary expanded telework; lowering supervisor
to employee ratios, and its cost-saving full service intake plan. Will
the agency act on these suggestions? If not, what actions will the
agency take?
---------------------------------------------------------------------------
\2\ Union Seeks Savings to Reduce Furloughs, Daily Labor Report,
April 8, 2013.
---------------------------------------------------------------------------
``We are furloughing staff 5 days''
While many agencies originally announced that furloughs would be
necessary as a result of sequestration, several of these agencies were
ultimately able to avoid furloughs. Why has EEOC implemented furloughs
when other agencies have avoided them?
``If necessary the notice adds an additional 3 [furlough] days.''
Will these additional 3 furlough days be necessary? What cost
savings could be implemented to avoid these additional days? The
uncertainty of future furlough days certainly affects planning,
operational needs, and agency goals. The uncertainty must also be a
source of concern for the employees, who may or may not be furloughed.
The agency intends to conduct a reassessment period between July 1-12,
2013 to determine if the additional 3 days of furloughs will occur,
referred to as Phase II. Can EEOC resolve this uncertainty now? What is
the earliest that EEOC can determine and notify employees whether they
will be required to take an additional three days of furloughs? EEOC
should take demonstrable actions to avoid furloughs and announce
immediately that additional furloughs are off the table.
``This will have a real impact on our workforce * * *''
What is the impact on EEOC's workforce? Five days of furlough
spread over five two week pay periods results in a10% pre-tax pay loss
to its employees. Does EEOC have information on the financial
consequences the pay loss is causing its staff, especially support
staff whose pay grade levels range from GS-5-GS-7? What is EEOC doing
to provide information about resources that employees may turn to for
financial assistance? How are furloughs impacting employee morale,
specifically in those areas of human capital development that are
addressed in the annual Federal Employee Viewpoint Survey? How many
employees will leave between now and the end of the fiscal year? Given
the hiring freeze, will those additional losses impact morale? What
impact will these staffing losses have on average case workload?
``This will have a real impact on our * * * ability to make further
progress towards our mission.''
What is the nature of the impact that sequestration will have on
EEOC's civil rights mission? EEOC ended FY12 with a backlog of more
than 70,000 discrimination. At the hearing Chair Berrien noted the
modest progress in the last two years, wherein the agency has reduced
the backlog by 10% in FY11 and again in FY12. However, EEOC's FY14
budget justification projects that the backlog will rise dramatically
to 80,575 by FY14.
The FY14 budget justification makes no reference to sequestration
or furloughs. The backlog projection then would appear to be skewed
lower than is realistic, considering the loss of productivity caused by
the furlough days. What is EEOC's projection for the FY13 backlog when
5 furlough days are incorporated into the analysis? What is EEOC's
projection for the FY13 backlog when 8 furlough days are incorporated
into the analysis? How many furlough days are anticipated for FY14? How
will this impact the agency's backlog projection for FY14?
According to EEOC Performance and Accountability Report for FY12,
EEOC's average charge processing time is a lengthy 288 days. How will
furloughs impact average charge processing time? What changes is EEOC
making to ensure wise use of its limited and scarce resources?
Furloughs are counterproductive to effectively carrying out the
EEOC's mission. Therefore, furloughs should only be implemented only as
a last resort. The testimony provided by Chair indicated that the EEOC
is still considering adding three additional days of furlough to the
current 5 days furloughs. The Council urges EEOC to consider
alternative means other than furloughs, such as those suggested thus
far by the Union, to achieve the budget reductions required by
sequestration.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
------
[Additional submissions of Ms. Berrien follow:]
[The EEOC report, ``Strategic Plan for Fiscal Years 2012-
2016,'' may be accessed at the following Internet address:]
http://www.eeoc.gov/eeoc/plan/upload/strategic_plan_12to16.pdf
------
[The EEOC report, ``Strategic Enforcement Plan FY 2013-
2016,'' may be accessed at the following Internet address:]
http://www.eeoc.gov/eeoc/plan/upload/sep.pdf
------
[Questions submitted for the record and their response
follows:]
U.S. Congress,
Washington, DC, July 16, 2013.
Hon. Jacqueline A. Berrien, Chair,
Equal Employment Opportunity Commission, 131 M Street, NE, Washington,
DC 20507.
Dear Chair Berrien: Thank you for testifying at the May 22, 2013
Subcommittee on Workforce Protections hearing entitled, ``Examining the
Regulatory and Enforcement Actions by the Equal Employment Opportunity
Commission.'' I appreciate your participation.
Enclosed are additional questions submitted by committee members
following the hearing. Please provide written responses no later than
August 16, 2013, for inclusion in the official hearing record.
Responses should be sent to Owen Caine of the committee staff, who can
be contacted at (202) 225-7101.
Thank you again for your contribution to the work of the committee.
Sincerely,
Tim Walberg, Chairman,
Subcommittee on Workforce Protections.
questions from chairman walberg (mi-07)
Questions addressing the EEOC's recent and proposed enforcement
guidance, and the process by which it is promulgated.
1. What new enforcement guidance is the EEOC considering issuing
and can you provide a timetable for issuing any new guidance?
Specifically, is the EEOC considering new guidance on reasonable
accommodation under the Americans with Disabilities Act? Finally, can
you give us your assurance that any future guidance will be provided to
the public for comment prior to making it final? If not, why?
2. On May 8, 2013, the EEOC held a hearing regarding employer
wellness programs under the varying requirements of federal non-
discrimination laws, the Health Insurance Portability and
Accountability Act, and the Patient Protection and Affordable Care Act.
The health care law codifies and expands the existing rules for
workplace wellness programs, and proposes to increase, from 20 to 30
percent, the amount by which health plans can vary their premiums for
participation in wellness plans. The health care law also endorses the
value of workplace wellness plans by requiring health plans offered
through health care exchanges under the law to include wellness and
chronic disease management as a core benefit. In light of the health
care law's treatment of wellness programs and the existing federal
regulatory scheme governing their structure, does the EEOC plan to
issue guidance on workplace wellness programs? If so, will the EEOC
work with the Departments of Labor and Health and Human Services in
promulgating this guidance? Will the EEOC allow for a notice and
comment period on any wellness guidance they consider?
3. The EEOC, along with other federal agencies, has specifically
focused on gender pay discrimination. The EEOC is part of the National
Equal Pay Task Force and provided compensation discrimination training
to enforcement personnel across agencies. The Office of Federal
Contract Compliance Programs (OFCCP) recently rescinded its enforcement
guidance on pay discrimination and replaced it with broader
investigation procedures, without providing much guidance to help
employers determine proactively whether or not they are in compliance.
What are the EEOC's current plans with regard to gender pay
discrimination guidance and enforcement? How has the EEOC coordinated
with other agencies, including the OFCCP to ensure employers do not
face conflicting or overly burdensome regulation in this area?
4. Several studies show a relationship between a poor credit
history and risk of loss to a business, a customer, or a fellow
employee. How does the EEOC plan to use empirical, scientific-based
evidence in the development of new guidance, specifically credit
history guidance?
5. Employers conduct credit checks to protect them, their
customers, and other employees from financial harm. For example, the
Association of Certified Fraud Examiners (ACFE) said in a recent report
that the top two red flag warnings exhibited by perpetrators associated
with fraud were instances in which the fraudster was living beyond his
or her financial means or experiencing financial difficulties. Further,
employee theft accounts for nearly $1 trillion annually. Employers are
troubled by the prospect of limits on the use of credit histories for
employment. Will the EEOC issue credit guidance? If the EEOC intends to
issue credit guidance what is the timing? Will that guidance go through
the APA, OMB, or Comptroller General review process? If not, why not?
6. Your guidance on criminal background screening is 55 pages long
and contains 167 footnotes. It requires complex individualized
assessments involving a multitude of amorphous factors. Even
sophisticated attorneys may not know how to advise their clients.
Please provide the questions you have received regarding this guidance
and the responses to those questions provided by the EEOC.
7. The EEOC and the Federal Trade Commission are working together
on FAQs to the EEOC's criminal background check guidance. Will the FAQs
address employers' responsibility under the EEOC guidance and the Fair
Credit Reporting Act? What is the status of the FAQs?
8. Central to the EEOC's criminal background check guidance is the
requirement that employers conduct an ``individualized assessment''
coupled with a targeted screen. While not mandating such, the guidance
states that ``although Title VII does not require individualized
assessment in all circumstances, the use of a screen that does not
include individualized assessment is more likely to violate Title
VII.'' It also states a targeted screen coupled with an opportunity for
an individualized assessment is a circumstance in which the EEOC
believes employers will consistently meet the ``job related and
consistent with business necessity'' defense. How does the EEOC intend
to enforce individualized assessments? By strongly urging employers to
conduct ``individualized assessments,'' the guidance imposes a new
burden on responsible employers seeking to comply with it and avoid an
EEOC investigation. Will enforcement in this area be driven by whether
an employer has developed a screen and conducts individualized
assessment, and, alternatively, will lack of any screen or
individualized assessment be grounds for an EEOC investigation?
9. Is there a time or point in the hiring process when the EEOC
believes it is appropriate to conduct a criminal check? Is it ever
appropriate to ask about criminal history on an application? Is it ever
appropriate to consider criminal history prior to an interview?
10. Regarding the EEOC's criminal background check guidance, what
if an employer finds out an individual lied on his or her employment
application regarding their criminal history? If that individual is
fired for their lack of honesty about a prior conviction, could the
employer still run afoul of the guidance?
questions regarding the eeoc's delegation of litigation authority to
the general counsel
11. The general counsel is required to bring a case before the EEOC
for a vote to proceed to litigation in four instances, including those
in which the case would likely create public controversy. What types of
cases would fall in this ``public controversy'' category? Given the
high level of interest on the criminal history background checks
guidance, and its controversy thus far, do you expect the general
counsel to bring such cases before the commission for a vote to proceed
prior to litigation?
12. Should the EEOC decide to pursue litigation that considers
partners as ``employees,'' would you expect the commissioners to vote
on whether to commence any such litigation? Would you expect such
litigation to trigger any of the instances in which the EEOC requires
commissioners to vote to proceed? For example, do you believe the
litigation would have a high likelihood for public controversy? Would
it involve a major expenditure of resources? Would it present issues in
a developing area of law?
13. In 2012, 122 lawsuits were filed in the name of the EEOC, but
only three of those were submitted for the commission's consideration.
Do you feel this is an appropriate proportion? Were fewer than 3
percent of the lawsuits brought in the commission's name last year
appropriate for submission to the commission?
14. Courts have recently found several cases brought by the EEOC to
be meritless. For example, the EEOC was ordered to pay the defendants'
costs and attorneys' fees in the Peoplemark and CRST Van Expedited
cases. Did the commissioners approve the commencement of litigation in
those cases and if not, why not? Given that the EEOC as a whole is
ultimately accountable for outcomes in litigation, do you agree the
commissioners should play a greater role in approving cases that
proceed to litigation?
15. The commission has delegated authority to district directors to
negotiate settlements and conciliation agreements, and to make
reasonable cause determinations in a wide range of circumstances. How
does the commission exercise oversight of that delegation and what
limits are imposed on the discretion of district directors?
questions regarding the eeoc's policies and procedures in
investigations and litigation
16. President Obama has commented on the importance of transparency
in government. The EEOC's commissioner charges generally result in
broad-based systemic investigations of an employer's business practices
and can be based on a commissioner reading a newspaper article about a
company or a company's hiring statistics. Is the EEOC required to
explain or articulate any basis for the charge or what led to the
charge before the employer is subjected to a broad-based systemic
investigation by the EEOC? Do you believe the approach is consistent
with the importance of transparency in government and due process in
our legal system?
17. Why has the EEOC focused on conducting directed investigations,
as opposed to investigations initiated in response to a complaint? How
does the EEOC decide whether to spend resources on directed
investigations in light of the substantial backlog of complaints?
18. In many cases, the EEOC engages in a ``conciliation'' or
settlement process, regularly demanding the statutory maximum in terms
of a monetary settlement offer and insisting on sweeping changes to the
employer's human resource operations. Frequently, the settlement
demands have no relationship to the historical jury verdicts in the
region, and generally do not take the employer's defenses into
consideration. What steps are you taking to ensure the EEOC is engaging
in effective, good-faith conciliation prior to litigation?
19. For years, the EEOC has litigated challenges to proper
conciliation with varying degrees of success. Currently, the EEOC is
taking two completely new litigation positions: (1) courts have no
authority to review the EEOC's conciliation efforts; and (2) no
information about conciliation can be put before a court unless the
EEOC consents. These positions make the EEOC accountable to no party or
court for its conciliation efforts. After almost 40 years of litigating
the issue of conciliation, why is the EEOC now attempting to take that
issue off the table? Please provide any and all documentation regarding
this EEOC position.
20. Why do certain EEOC regional directors refuse to share
information about what the EEOC learned during its investigation during
the conciliation process even though they ultimately must do so in
litigation if conciliation fails? Wouldn't sharing relevant information
with the target of the investigation help resolve more cases and
accomplish the goal of compliance with Title VII?
21. Private lawyers who sue employers engage in a cost-benefit
analysis to determine whether the cost and risk of going forward to
trial is warranted by the potential financial outcome. As the steward
of taxpayer dollars, do you believe the EEOC should do this too? What
are the EEOC's procedures for resolving cases in a timely manner to
reduce costs to employers, and ultimately the taxpayer?
22. The EEOC's Strategic Enforcement Plan states the EEOC has
superior access to data, documents, and potential evidence of
discrimination in recruitment and hiring, and therefore is better
situated to eliminate barriers in recruitment and hiring than are
individuals or private attorneys, who have difficulties obtaining such
information. In determining whether to bring other systemic litigation,
does the EEOC consider whether the individuals affected have the means
and ability to seek redress through private civil litigation? In your
view, should it do so?
23. In litigation, the EEOC claims an attorney client privilege
with charging parties and claimants. But in practice the EEOC does not
consider their wishes when deciding whether to settle a case or go to
trial. Why should the EEOC be able to have it both ways unlike
attorneys in other litigation?
24. The EEOC is required to establish or make available an
Alternative Dispute Resolution (ADR) program that may be available for
the pre-complaint process and the formal complaint process. The EEOC,
however, may make a determination regarding whether to offer ADR in a
particular case.
a. Once a decision has been made by EEOC as to whether to offer
ADR, are the parties involved notified of that decision prior to
further administrative contact? If not, why not?
b. What percentage of cases does the EEOC offer ADR in the pre-
complaint process?
c. What percentage of cases does the EEOC offer ADR in the formal
complaint process?
d. Does the EEOC offer ADR during initial counseling of the
complainant? If not, what informal methods of resolution does the EEOC
counselor offer?
e. How does the EEOC decide whether to offer ADR in a particular
case?
f. In deciding whether to offer ADR in a particular case, does the
EEOC take into account a claimant's desire to mediate, litigate, or
settle?
25. When a complainant wishes to file a class complaint after
initial counseling, the complaint is sent to the relevant EEOC field or
district office, where an EEOC administrative judge determines whether
to accept or dismiss the class complaint. To be certified as a class,
the administrative judge must decide the certification requirements of
numerosity, commonality, typicality, and adequacy of representation are
fulfilled.
a. Does the EEOC separately communicate with each member of the
proposed class in its determination of the class certification
requirements?
b. Does the EEOC collect documents and other non-testimonial
evidence from each member of the proposed class in its determination of
the class certification requirements?
c. Is the employer notified during this process a class complaint
is under consideration? If not, why not?
26. In fiscal year 2012, how many lawsuits did the EEOC win
outright, through jury verdict or summary judgment?
27. The EEOC claims process has a costly effect on small
businesses, especially when the case is litigated. What are the EEOC's
internal procedures for resolving cases in a timely manner to reduce
costs to employers, and ultimately consumers?
questions regarding partnership agreements and the definition of
``employee'' under federal non-discrimination law
28. As the Supreme Court noted in Clackamas Gastroenterology
Assocs. v. Wells, the definition of ``employee'' in anti-discrimination
laws--that it is ``an individual employed by an employer''--is
``completely circular and explains nothing.'' Thus the determination as
to whether partners in a particular partnership are ``employers'' or
``employees'' is based on a multi-factored, facts-and-circumstances
test. To the extent the statute needs clarification, do you believe
litigation is the proper avenue through which to define partnerships?
29. Today, most partnerships, particularly large partnerships,
adopt internal management practices such as governing boards that allow
them to delegate managerial functions while maintaining partner
ownership of the firm, control over professional work product, and
voice on issues critical to the partnership. In your view, does the
delegation of partnership authority to internal governing boards
transform the partners of a firm into employees rather than employers?
What factors, in the EEOC's view, are most critical to determining
whether and when such a delegation transforms partners into
``employees?''
30. In the last decade the EEOC brought a highly publicized lawsuit
against the law firm Sidley Austin, alleging its partners were
employees and its retirement policy for partners therefore violated the
Age Discrimination in Employment Act. What, in the EEOC's view, were
the most significant characteristics of Sidley's partnership structure
that led the EEOC to conclude that its partners were ``employees?''
31. Is the EEOC currently pursuing directed investigations of
mutually agreed upon retirement policies for partners that were not
commenced following a charge filed by a partner? If so, what factors
did the EEOC consider in deciding to prioritize those investigations
over the tens of thousands of backlogged cases involving employee
complaints?
32. The EEOC's Strategic Enforcement Plan lists six enforcement
priorities. Do you intend to make mutually agreed upon retirement
policies in legal and accounting professional partnerships a focus of
the EEOC's enforcement efforts? If so, which of the six enforcement
priorities identified in the Strategic Enforcement Plan make mutually
agreed upon retirement policies for partners an EEOC priority?
questions regarding the eeoc's interaction with the department of
labor's office of federal contract compliance programs (ofccp)
34. Did the EEOC comment on the OFCCP's rescission of the agency's
2006 Compensation Standards and the issuance of OFCCP Directive 307?
Why not? The EEOC agreed with the 2006 Compensation Standards. Has the
EEOC's position changed?
35. As you know, Executive Order (EO) 12067 requires the EEOC to
ensure coordination of federal equal employment opportunity enforcement
efforts. In particular, EO 12067 requires the EEOC ``to develop uniform
standards, guidelines, and policies defining the nature of employment
discrimination'' and ``develop uniform standards and procedures for
investigations and compliance reviews.'' Did the EEOC review OFCCP's
notice of rescission of the 2006 Compensation Standards and the
issuance of Directive 307 under EO 12067? Did the EEOC provide any
feedback to OFCCP about the approach contained in Directive 307? Please
provide any and all correspondence between the EEOC and OFCCP on this
subject.
36. Under the EEOC's Compensation Manual, published in 2000, the
EEOC instructs investigators to ``determine the similarity of jobs by
ascertaining whether the jobs generally involve similar tasks, require
similar skill, effort, and responsibility, working conditions, and are
similarly complex or difficult.'' The EEOC's Compensation Manual
continues, ``[t]he actual content of the jobs must be similar enough
that one would expect those who hold the jobs to be paid at the same
rate or level.'' Does the EEOC interpret OFCCP Directive 307 to be
altogether consistent with these EEOC instructions?
37. As you know, in August, 2012, the National Research Council of
the National Academies of Sciences (NAS) released a report entitled
``Collecting Compensation Data from Employers.'' This report was
commissioned by the EEOC. The report contained two primary
recommendations:
Recommendation 1: In conjunction with the Office of Federal
Contract Compliance Programs of the U.S. Department of Labor and the
Civil Rights Division of the U.S. Department of Justice, the U.S. Equal
Employment Opportunity Commission should prepare a comprehensive plan
for use of earnings data before initiating any data collection.
Recommendation 2: After the U.S. Equal Employment Opportunity
Commission, the Office of Federal Contract Compliance Programs, and the
U.S. Department of Justice complete the comprehensive plan for use of
earnings data, the agencies should initiate a pilot study to test the
collection instrument and the plan for the use of the data. The pilot
study should be conducted by an independent contractor charged with
measuring the resulting data quality, fitness for use in the
comprehensive plan, cost, and respondent burden.
a. What is the status of the EEOC's implementation of these
recommendations? Has the EEOC and OFCCP developed a comprehensive plan?
If so, please provide a copy of the comprehensive plan. If not, why
not, and when will it be completed?
b. Has an independent contractor been selected for a pilot project?
c. How will the EEOC ensure coordination with OFCCP with regard to
these recommendations?
d. Has the EEOC had any discussions with OFCCP about the comments
OFCCP received in response to the Advance Notice of Proposed Rulemaking
on a Compensation Data Collection Tool, 76 Fed. Reg. 49398 (Aug. 10,
2011)?
e. Will the EEOC commit to using its authority under EO 12067 to
require OFCCP to adhere to the NAS recommendations before issuing any
proposed regulations on collecting compensation data?
questions from representative hudson (nc-08)
1. There is a case in which an employee filed a gender
discrimination case against her employer. When the employer tried to
meet with the EEOC representative and the employee for consultation,
the employer instead found the EEOC representative acting as a
prosecuting attorney for the employee instead of a negotiator between
the parties. The employer was not notified prior to the meeting of the
terms of these discussions, and whether or not the EEOC representative
would be used in a mediating role or prosecuting role, leaving the
impression these meetings were informal negotiations.
a. To what extent does the EEOC give a notice of terms to all
parties involved prior to in person consultations?
b. In other cases is it protocol for an EEOC representative to play
negotiator/ mediator and prosecutor during an investigation?
c. If employers are not notified of the status of the consultation
meeting, what are their administrative rights to have counsel present
and/or delay the meeting until counsel is present?
2. As you know, the EEOC's Chicago District Office is currently
investigating PricewaterhouseCoopers regarding their partnership
agreement and mandatory retirement age. The six-factor partnership test
adopted by the Supreme Court in Clackamus would presume the partners at
PricewaterhouseCoopers are not subject to the ADEA.
a. Should the EEOC decide to pursue litigation of this case, do you
believe it would involve a major expenditure of resources or have a
high likelihood for public controversy?
b. Given the Strategic Enforcement Plan's objective of retaining
the decision to commence litigation over cases that (1) will involve a
major expenditure of resources; (2) present issues in a developing area
of law; or (3) cases with a high likelihood for public controversy,
would you expect the commission, and not the general counsel, to vote
on whether to commence litigation against PricewaterhouseCoopers?
______
EEOC Response to Questions Submitted for the Record
1. What new enforcement guidance is the EEOC considering issuing
and can you provide a timetable for issuing any new guidance?
Specifically, is the EEOC considering new guidance on reasonable
accommodation under the Americans with Disabilities Act? Finally, can
you give us your assurance that any future guidance will be provided to
the public for comment prior to making it final? If not, why?
Response: Members of the Commission have spoken publicly about
their interest in issuing revised guidance on reasonable accommodation
under the ADA. In particular, the existing guidance does not reflect
changes to the definition of ``disability'' resulting from enactment of
the ADA Amendments Act of 2008 (ADAAA). Additionally, a number of legal
issues concerning reasonable accommodation have arisen in the more than
10 years since our existing guidance was last revised, and others are
likely to arise as the question of whether an individual has a
disability within the meaning of the ADA becomes less important as a
result of the ADAAA. For example, in June 2011, the Commission held a
meeting on the extent of an employer's obligation to provide leave as a
reasonable accommodation. http://www.eeoc.gov/eeoc/meetings/6-22-11/
index.cfm.
Other areas of interest for the Commission, as evidenced by public
meetings we have held in the past two years include pregnancy
discrimination, http://www.eeoc.gov/eeoc/meetings/2-15-12/index.cfm,
and the application of the ADA to employer-sponsored wellness programs.
http://www.eeoc.gov/eeoc/meetings/5-8-13/index.cfm. Some Commissioners
and a number of stakeholders present at those meetings expressed the
hope that the EEOC would issue guidance on these subjects.
However, I cannot say whether the Commission will decide to issue
guidance on these or other topics. The specific guidance that the
Commission decides to issue, its content, and the time frame within
which it is issued are all the product of a deliberative process, and a
majority of Commissioners must agree on the outcome.
We value the views and varying perspectives of our stakeholders,
and routinely seek input from the public in developing guidance.
2. On May 8, 2013, the EEOC held a hearing regarding employer
wellness programs under the varying requirements of federal non-
discrimination laws, the Health Insurance Portability and
Accountability Act, and the Patient Protection and Affordable Care Act.
The health care law codifies and expands the existing rules for
workplace wellness programs, and proposes to increase, from 20 to 30
percent, the amount by which health plans can vary their premiums for
participation in wellness plans. The health care law also endorses the
value of workplace wellness plans by requiring health plans offered
through health care exchanges under the law to include wellness and
chronic disease management as a core benefit. In light of the health
care law's treatment of wellness programs and the existing federal
regulatory scheme governing their structure, does the EEOC plan to
issue guidance on workplace wellness programs? If so, will the EEOC
work with the Departments of Labor and Health and Human Services in
promulgating this guidance? Will the EEOC allow for a notice and
comment period on any wellness guidance they consider?
Response: As noted in response to Question 1, Commissioners and
stakeholders present at the May 8, 2013 Commission meeting on the ADA
and wellness programs certainly expressed interest in the Commission
issuing guidance on this subject. Again, whether guidance is issued and
what the content of that guidance will be will need to emerge from the
Commission's deliberative process.
In developing any guidance, the Commission will coordinate closely
with the Departments of Labor, Health and Human Services, and the
Treasury (Internal Revenue Service), all of whom have issued
regulations under the Affordable Care Act concerning wellness programs.
The Commission has had considerable experience working with these
agencies to understand laws that are outside our area expertise, most
notably as part of the process of issuing proposed and final
regulations to implement Title II of the Genetic Information
Nondiscrimination Act. We will also consider input from the public, and
already have access to both the written testimony of participants at
the Commission meeting as well as comments submitted during the 15 days
following the meeting when the meeting record remained open for public
comment.
3. The EEOC, along with other federal agencies, has specifically
focused on gender pay discrimination. The EEOC is part of the National
Equal Pay Task Force and provided compensation discrimination training
to enforcement personnel across agencies. The Office of Federal
Contract Compliance Programs (OFCCP) recently rescinded its enforcement
guidance on pay discrimination and replaced it with broader
investigation procedures, without providing much guidance to help
employers determine proactively whether or not they are in compliance.
What are the EEOC's current plans with regard to gender pay
discrimination guidance and enforcement? How has the EEOC coordinated
with other agencies, including OFCCP to ensure employers do not face
conflicting or overly-burdensome regulation in this area?
Response: The Commission's current Strategic Enforcement Plan (SEP)
emphasizes the importance of ``a concentrated and coordinated
approach'' to enforcement that focuses on six priority issues, one of
which is gender pay discrimination. EEOC plans to continue its
enforcement and outreach to promote compliance. This emphasis on
coordination is particularly well-established with respect to gender
pay discrimination, because the EEOC and the Department of Labor have
two longstanding Memoranda of Understanding about coordinating on
training and investigations.
Indeed, in 2011 to 2012, the EEOC included OFCCP staff in its
nationwide training about gender pay discrimination, so that staff from
both agencies learned the same principles. This training reached
approximately 2000 people. The EEOC's Memoranda of Understanding can be
found at http://www.eeoc.gov/laws/mous/index.cfm.
4. Several studies show a relationship between a poor credit
history and risk of loss to a business, a customer, or a fellow
employee. How does the EEOC plan to use empirical, scientific-based
evidence in the development of new guidance, specifically credit
history guidance?
Response: The specific guidance that the Commission decides to
issue, its content, and the time frame within which it is issued are
all the product of a deliberative process, and a majority of
Commissioners must agree on the outcome. Should the Commission decide
to issue any guidance regarding employers' consideration of the credit
histories of applicants and/or employees, it will consider the public
input received from business and employee stakeholders as part of the
October 2010 Commission meeting on credit histories, and will also
consider relevant research in developing such guidance, as it does
whenever it issues any policy or guidance.
5. Employers conduct credit checks to protect them, their
customers, and other employees from financial harm. For example, the
Association of Certified Fraud Examiners (ACFE) said in a recent report
that the top two red flag warnings exhibited by perpetrators associated
with fraud were instances in which the fraudster was living beyond his
or her financial means or experiencing financial difficulties. Further,
employee theft accounts for nearly $1 trillion annually. Employers are
troubled by the prospect of limits on the use of credit histories for
employment. Will the EEOC issue credit guidance? If the EEOC intends to
issue credit guidance what is the timing? Will that guidance go through
the APA, OMB, or Comptroller General review process? If not, why not?
Response: The specific guidance that the Commission decides to
issue, its content, and the time frame within which it is issued are
all the product of a deliberative process, and a majority of
Commissioners must agree on the outcome. Since it has not been
determined what form any such guidance would take were it to be issued,
which review process might apply has not been determined. However, if
and when the Administrative Procedure Act applies, the Commission will,
as it has in the past, satisfy the requirements of the APA when issuing
regulations.
6. Your guidance on criminal background screening is 55 pages long
and contains 167 footnotes. It requires complex individualized
assessments involving a multitude of amorphous factors. Even
sophisticated attorneys may not know how to advise their clients.
Please provide the questions you have received regarding this guidance
and the responses to those questions provided by the EEOC.
Response: The EEOC recognizes that many of our stakeholders,
including small businesses, job applicants, and employees, need
information about this Guidance and our laws in general, but do not
want (and do not have the time) to read the longer, more legally
complex document itself.
Consequently, whenever the EEOC issues a substantive sub-regulatory
guidance like the April 2012 Arrest and Conviction Guidance, it
publishes one or more short, reader-friendly Q&A documents that serve
two purposes: (1) to explain the most important points in the longer
guidance in a straightforward manner; and (2) to respond directly to
some of the most frequently asked questions about the longer document.
While the EEOC does not archive all of the questions and comments
received around the country, the most frequently-asked questions come
to our attention and we strive to be responsive.
For the Arrest and Conviction Guidance, the EEOC issued two plain-
language documents. First, the EEOC issued basic ``Questions and
Answers'' shortly after the publication of the Guidance in April 2012.
See http://www.eeoc.gov/laws/guidance/qa--arrest--conviction.cfm.
There, the EEOC answered seven basic questions that reflect some of the
comments and questions the Commission received after its July 2011
public meeting about arrest and conviction records as a hiring barrier.
See http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm. This Question
and Answer document begins by explaining how employment actions based
on criminal background checks could become a Title VII issue, a
question frequently raised by members of the public.
Later, to respond to questions about the Guidance itself, the EEOC
published a ``What You Should Know'' document. Here, the EEOC explained
in two sentences how an employer could show that its criminal
background check was consistent with Title VII under the Guidance. The
EEOC also emphasized that the Guidance does not prevent employers from
using criminal background checks to screen applicants and employees in
a meaningful way, a point about which public discussion continued. See
http://www.eeoc.gov/eeoc/newsroom/wysk/arrest--conviction--records.cfm.
7. The EEOC and the Federal Trade Commission are working together
on FAQs to the EEOC's criminal background check guidance. Will the FAQs
address employers' responsibility under the EEOC guidance and the Fair
Credit Reporting Act? What is the status of the FAQs?
Response: The EEOC and the FTC are working on two brief technical
assistance publications with respect to background checks, one for
employers and another for individuals. Written in plain language, the
publications are designed to explain to employers what their
responsibilities are under the equal employment opportunity laws and
the Fair Credit Reporting Act with respect to background checks, and to
explain to individuals what their rights are. The publications would
not focus only on criminal background checks or set forth any new
policy. The agencies are still designing the publications but hope to
finalize them in the spring of 2014.
8. Central to the EEOC's criminal background check guidance is the
requirement that employers conduct an ``individualized assessment''
coupled with a targeted screen. While not mandating such, the guidance
states that ``although Title VII does not require individualized
assessment in all circumstances, the use of a screen that does not
include individualized assessment is more likely to violate Title
VII.'' It also states a targeted screen coupled with an opportunity for
an individualized assessment is a circumstance in which the EEOC
believes employers will consistently meet the ``job related and
consistent with business necessity'' defense. How does the EEOC intend
to enforce individualized assessments? By strongly urging employers to
conduct ``individualized assessments,'' the guidance imposes a new
burden on responsible employers seeking to comply with it and avoid an
EEOC investigation. Will enforcement in this area be driven by whether
an employer has developed a screen and conducts individualized
assessment, and, alternatively, will lack of any screen or
individualized assessment be grounds for an EEOC investigation?
Response: Enforcement in this area, like EEOC enforcement in other
areas, generally will be driven by charges we receive. When the EEOC
receives a charge of employment discrimination, we investigate the
claim to gather relevant evidence. We first assess the potential merits
of the charge, which includes a careful consideration of the underlying
facts. As part of the investigative process, we provide the employer
with the opportunity to respond to the allegations. In evaluating
charges alleging that someone has been excluded from a job based on an
arrest or conviction record, EEOC investigators will apply the legal
standards in Title VII as explained more fully in the EEOC's guidance,
including the principles favoring targeted screens and an opportunity
for an individualized assessment. The outcome of a particular Title VII
investigation will turn on the application of these principles to the
unique facts of each case.
Simply asserting that a screen is ``targeted'' or that the employer
has conducted an individualized assessment will not in itself be
determinative. The EEOC investigators will focus on evidence of how the
screen or the individualized assessment has been implemented in
practice.
9. Is there a time or point in the hiring process when the EEOC
believes it is appropriate to conduct a criminal check? Is it ever
appropriate to ask about criminal history on an application? Is it ever
appropriate to consider criminal history prior to an interview?
Response: EEOC's guidance explains how an employer may
appropriately and legally consider the criminal history of an applicant
or employee. The guidance is intended to assist job seekers, employees,
employers, and many other agency stakeholders. As a ``best practice,''
the Commission recommends in the Guidance that employers avoid asking
about criminal history on the job application itself. The policy
rationale is that an employer is more likely to objectively assess the
relevance of a conviction if it becomes known after the employer is
already knowledgeable about the individual's qualifications and
experience.
The Guidance also recognizes that ``[the employer's c]ompliance
with federal laws and/or regulations is a defense to a charge of
discrimination.'' The Guidance notes that ``employers are subject to
federal statutory and/or regulatory requirements that prohibit
individuals with certain criminal records from holding particular
positions or engaging in certain occupations.'' Employers may want to
inform applicants early in the hiring process if one of these federal
exclusions applies.
10. Regarding the EEOC's criminal background check guidance, what
if an employer finds out an individual lied on his or her employment
application regarding their criminal history? If that individual is
fired for their lack of honesty about a prior conviction, could the
employer still run afoul of the guidance?
Response: Generally applicable and consistently implemented
policies against falsifying or misrepresenting information in an
application are enforceable. An employer whose practice is to terminate
anyone whom it finds out has lied on an employment application may
terminate someone who lies in response to a question about his or her
criminal background. However, if the employee's prior arrest or
conviction, not the fact that he or she lied about it on an
application, is the reason that the employer terminated the employee,
EEOC will apply the principles in the guidance to evaluate any charge
of discrimination that is filed.
11. The general counsel is required to bring a case before the EEOC
for a vote to proceed to litigation in four instances, including those
in which the case would likely create public controversy. What types of
cases would fall in this ``public controversy'' category? Given the
high level of interest on the criminal history background checks
guidance, and its controversy thus far, do you expect the general
counsel to bring such cases before the commission for a vote to proceed
prior to litigation?
Response: The Commission does not maintain a list of types of cases
that may generate public controversy because what is considered
controversial necessarily changes over time. In deciding whether
litigation of a particular case is likely to generate public
controversy, the General Counsel considers various factors, including
whether the litigation of similar cases in the past generated public
controversy or adverse publicity, whether any issue in the litigation
has been the subject of discussion in the Congress, and whether any
issue in the case has been the subject of significant debate in the
media. The Commission recognizes that, as things currently stand, cases
challenging an employer's use of criminal history as an exclusionary
criterion are likely to generate public controversy. The General
Counsel accordingly has presented all such cases to the full Commission
for a vote, and will continue to do so for the foreseeable future.
12. Should the EEOC decide to pursue litigation that considers
partners as ``employees,'' would you expect the commissioners to vote
on whether to commence any such litigation? For example, do you believe
the litigation would have a high likelihood for public controversy?
Would it involve a major expenditure of resources? Would it present
issues in a developing area of law?
Response: A case in which the applicable legal standards are
settled law, such as whether partners were covered as employees, would
generally not be submitted to the Commission. The Supreme Court set out
the factors to be considered in making such a determination ten years
ago, and the Commission has litigated the issue in the context of law
firms without generating public controversy. The decision whether any
such case involves a developing area of the law, a major expenditure of
resources, or is likely to generate public controversy is decided on a
case-by-case basis.
13. In 2012, 122 lawsuits were filed in the name of the EEOC, but
only three of those were submitted for the commission's consideration.
Do you feel this is an appropriate proportion? Were fewer than 3
percent of the lawsuits brought in the commission's name last year
appropriate for submission to the commission?
Response: Prior to the Commission's adoption of a Strategic
Enforcement Plan in December 2012, there was no number or proportion of
cases which were to be submitted to the full Commission. One of the
primary purposes of the Commission's delegation of litigation authority
to the General Counsel in the 1995 National Enforcement Plan (NEP) was
to drastically reduce the number of litigation recommendations
submitted to the Commission to free up the Commissioners to focus on
larger policy issues. Delegation of authority to the General Counsel to
approve litigation is especially appropriate for EEOC since EEOC has a
presidentially appointed and Senate confirmed General Counsel whom
Congress made responsible for the conduct of litigation on behalf of
the Commission. The Commission carefully reviewed the delegation under
the NEP and reaffirmed delegation under the Strategic Enforcement Plan
in December 2012 with the addition that one litigation recommendation
from each District Office be submitted to the Commission each fiscal
year, including litigation recommendations which otherwise meet the
criteria for Commission approval.
14. Courts have recently found several cases brought by the EEOC to
be meritless. For example, the EEOC was ordered to pay the defendants'
costs and attorneys' fees in the Peoplemark and CRST Van Expedited
cases. Did the commissioners approve the commencement of litigation in
those cases and if not, why not? Given that the EEOC as a whole is
ultimately accountable for outcomes in litigation, do you agree the
commissioners should play a greater role in approving cases that
proceed to litigation?
Response: The Commission approved litigation in the Peoplemark case
in September 2008. CRST was approved for litigation by the General
Counsel in September 2007. While both of these cases were filed during
the prior administration, it is clear that CRST was not a Commission-
level case when the case was authorized for litigation.
The EEOC appealed the district court's award of attorney's fees in
Peoplemark. The case has been briefed and argued and is currently
awaiting decision by the United States Court of Appeals for the Sixth
Circuit. The EEOC argued on appeal that Peoplemark is not entitled to
attorney's fees because it failed to show that the EEOC's suit, at any
time during the litigation, was frivolous, unreasonable, or without
foundation--the standard the United States Supreme Court has
established for awarding fees to a defendant in a Title VII action.
The EEOC appealed CRST to the 8th Circuit and although a divided
panel upheld much of the lower court decision, it revived two
individual claims and thus set aside the fees as the defendant was not
a prevailing party. The CRST ruling held that the Agency must, at least
in non-pattern-or-practice class cases, identify and conciliate for
each claimant in the administrative process before filing suit on their
behalf. This ruling departed from prior settled law and practice and
was thus unforeseen at the time the case was filed. The EEOC later
dismissed one claim and settled the one remaining claimant case this
year. On remand, CRST filed a new petition for fees, which the district
court granted, awarding $4.7 million in attorney's fees, expenses, and
costs. EEOC anticipates that it will appeal the fees order.
Peoplemark, CRST and the few other losses we have suffered over the
past few years are but a small part of the EEOC's highly successful
litigation program. For example in 2012, we resolved 253 merits
lawsuits for a total of $44,205,586 in monetary relief. Our success
rate in litigation has been more than 90 percent for the past 5 years
at least. This year we conducted 10 trials and won 8 of them, all of
the victories involving cases filed pursuant to the Commission's
delegated authority.
As noted above, the Commission has carefully reviewed the
delegation of litigation authority to the General Counsel and
reaffirmed that delegation under the Strategic Enforcement Plan in
December 2012 with the addition that one litigation recommendation from
each District Office be submitted to the Commission each fiscal year.
15. The commission has delegated authority to district directors to
negotiate settlements and conciliation agreements, and to make
reasonable cause determinations in a wide range of circumstances. How
does the commission exercise oversight of that delegation and what
limits are imposed on the discretion of the district directors?
Response: The EEOC has received nearly 100,000 charges each year
for the last three years. Agency staff, including District Directors,
is responsible for investigating and resolving charges. Delegation to
the District Directors is critical to an efficient charge resolution
system, as without it, the inventory of charges would increase
dramatically.
There is no express limitation on the exercise of delegated
authority by District Directors, but they are guided in their exercise
of delegated authority by the agency's Strategic Plan and Strategic
Enforcement Plan (both were Commission-approved). The Chair is
responsible for overall management of agency operations and personnel;
various intermediate personnel directly supervise agency staff. The
Director of the Office of Field Programs (OFP) is responsible for day-
to-day supervision and oversight of the work of the District Directors.
Among his regular interactions with the Chair and members of the
Commission, the Director of OFP briefs the Commission quarterly on the
administrative enforcement program of the agency (which includes
investigation and resolution of private sector charges through
mediation or conciliation), as provided in the Strategic Enforcement
Plan. As members of the Senior Executive Service, District Directors'
performance is evaluated at least annually by the Director of the
Office of Field Programs, and reviewed by a group of Senior Executives
from within and outside the EEOC who are appointed by the Chair in
accordance with Office of Personnel Management guidelines.
In addition, as part of the agency's Strategic Plan, a Quality
Control Plan (QCP) is being developed that establishes specific
criteria for evaluating the quality of EEOC investigations and
conciliations and provides for an expanded review system to conduct
assessments of investigations and conciliations in each district.
16. President Obama has commented on the importance of transparency
in government. The EEOC's commissioner charges generally result in
broad-based systemic investigations of an employer's business practices
and can be based on a commissioner reading a newspaper article about a
company or a company's hiring statistics. Is the EEOC required to
explain or articulate any basis for the charge or what led to the
charge before the employer is subjected to a broad-based systemic
investigation by the EEOC? Do you believe the approach is consistent
with the importance of transparency in government and due process in
our legal system?
Response: The EEOC uses Commissioner charges under Title VII of the
Civil Rights Act and the Americans with Disabilities Act when there is
reason to believe discrimination has occurred. Congress authorized the
use of Commissioner charges when it enacted Title VII in 1964 and they
have been used for decades for investigations of varying scope, from
individual to class-based.
In 1972, Congress broadened the Commissioner charge authority,
removing a requirement that there be ``reasonable cause'' to
investigate. In 1984, the Supreme Court upheld the authority of the
Commission to issue and investigate Commissioner charges, under the
same standards applicable to charges filed by members of the public, to
determine whether the law has been violated. Equal Employment
Opportunity Commission v. Shell Oil Company, 466 U.S. 54 (1984). The
Supreme Court stated that this authority was essential to achieving the
purposes of Title VII. Id. at 77.
Investigations initiated through these mechanisms are consistent
with requirements of transparency in government and due process. As
required by statute, the EEOC advises the employer of the alleged
discrimination in the Commissioner charge, and explains its findings at
various stages in the process, including in the predetermination
interview, Letter of Determination, and conciliation. The employer is
given opportunities to resolve the findings voluntarily through
conciliation, and the employer is not bound by the EEOC's findings in
the administrative process but has the right to a trial de novo in
court.
While the employer is apprised of the alleged discrimination, the
statute limits the bounds of transparency. Title VII explicitly
prohibits the agency and its staff from making ``public in any manner
whatever information'' the Commission may obtain in an investigation,
including the existence of an investigation. 42 U.S.C. Sec. 2000e-
8(e).
17. Why has the EEOC focused on conducting directed investigations,
as opposed to investigations initiated in response to a complaint? How
does the EEOC decide whether to spend resources on directed
investigations in light of the substantial backlog of complaints?
Response: The EEOC devotes the vast majority of its resources to
investigations initiated in response to charges filed by members of the
public. In contrast, directed investigations comprise a small portion
of the Commission's resources. For example, in FY 2012, almost 100,000
charges were filed with EEOC, and over 111,000 were resolved. In
contrast, the agency initiated only 24 directed investigations in FY
2012.
The authority for directed investigations is found in the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 626(a) and
(b), and the Equal Pay Act (EPA), 29 U.S.C. Sec. 206(d), both of which
give the EEOC the authority to investigate under sections 9, 11 and 17
of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. Sec. Sec.
209, 211 and 217. The term ``directed investigation'' is not a
statutory term but is used by the EEOC to refer to investigations
initiated by the agency under these provisions, which authorize the
EEOC to investigate without an existing charge of discrimination filed
by a member of the public. The ADEA language grants the EEOC the power
to make investigations when ``necessary or appropriate for the
administration'' of the ADEA, 29 U.S.C. Sec. 626(a). Section 11 of the
FLSA gives the EEOC the authority to ``investigate such facts,
conditions, practices, or matters as [it] may deem necessary or
appropriate to determine whether any person has violated any provision
of this chapter or which may aid in the enforcement of the provisions
of this chapter * * *'' 29 U.S.C. Sec. 211(a).
The EEOC exercises its statutory authority to initiate directed
investigations and Commissioner charges to maximize the effectiveness
of its law enforcement efforts when the agency has reason to believe
that discrimination has occurred, even though an individual member of
the public may not have come forward to file a charge. Congress
authorized Commissioner charges and directed investigations in order to
provide the EEOC with a mechanism to address possible discriminatory
acts that otherwise might go unaddressed.
The EEOC uses these tools to investigate situations where
individuals may for various reasons be unwilling or unable to file
charges, for example when the employee fears retaliation should he or
she file a charge. Other cases may be initiated on behalf of victims
who are in underserved communities, have been totally excluded from the
workplace, or are unaware of discriminatory hiring or job referral
barriers, such as racial, gender or age preferences covertly used by
employment agencies at the behest of an employer. Commissioner charges
and directed investigations are methods of seeking relief for these
victims of discrimination.
In 2006, the Commission unanimously voted to reaffirm the
importance of Commissioner charges and directed investigations as a
central component of the EEOC's systemic program. In adopting the
recommendations of its Systemic Task Force, led by Vice Chair Leslie
Silverman, the Commission approved a series of measures to strengthen
the agency's efforts to address pattern or practice, policy and/or
class cases where the alleged discrimination has a broad impact on an
industry, profession, company, or geographic location. The Task Force
found that Commissioner charges and directed investigations ``are
important tools in the effort to combat systemic discrimination, as
many victims of discrimination do not come to EEOC because they fear
retaliation, do not know about their rights, or are unaware of the
discrimination (particularly where the issue is hiring).''
18. In many cases, the EEOC engages in a ``conciliation'' or
settlement process, regularly demanding the statutory maximum in terms
of a monetary settlement offer and insisting on sweeping changes to the
employer's human resource operations. Frequently, the settlement
demands have no relationship to the historical jury verdicts in the
region, and generally do not take the employer's defenses into
consideration. What steps are you taking to ensure the EEOC is engaging
in effective, good-faith conciliation prior to litigation?
Response: Conciliation is the statutorily required process by which
the EEOC attempts to resolve discrimination through ``informal means of
conference, conciliation, and persuasion.'' 42 U.S.C. Sec. 2000e-5.
The purpose of conciliation is to remedy the violation, as required by
statute. If a particular policy or practice was found to be
discriminatory, the EEOC would seek to have the employer change its
practices to end the discrimination and to prevent further
discrimination from occurring. Conciliation occurs only after the
investigation of a charge has been completed, and the EEOC has reached
a determination that the evidence establishes that there is
``reasonable cause'' to believe that discrimination occurred.
The percentage of successful conciliations has been increasing
during the Chair's tenure. Successful conciliation rates: FY 2010-27
percent; FY 2011-31 percent; FY 2012--38 percent; FY 2013 (midyear)--40
percent. Specific data is reflected below:
----------------------------------------------------------------------------------------------------------------
Cause
Fiscal year resolutions Conciliations Percentage
----------------------------------------------------------------------------------------------------------------
FY 2010...................................................... 4,981 1,348 27.1%
FY 2011...................................................... 4,325 1,351 31.2%
FY 2012...................................................... 4,207 1,591 37.8%
----------------------------------------------------------------------------------------------------------------
One of the steps the Commission is taking to insure effective,
good-faith conciliations is the development of a Quality Control Plan
that establishes criteria for evaluating the quality of investigations
and conciliations. The proposed Quality Control Plan was developed by a
staff work group with extensive public and internal input. It is
currently under consideration by the Commission.
Further, the Commission disagrees with the notion that it fails to
consider employer defenses or insists upon excessive monetary demands
in conciliation. The Commission is responsible for furthering the
public interest in remedying discriminatory conduct and that is our
primary consideration in framing our relief demands.
EEOC has consistently taken steps to ensure effective and fair
conciliations. The Office of the General Counsel and the Office of
Field Programs routinely train employees on conciliations and issued
field guidance on issues raised by recent case law concerning the
Agency's conciliation obligations. As part of the litigation review,
the Office of the General Counsel and the Commission, as appropriate,
review the conciliation history of each case prior to authorizing
litigation. If conciliation is insufficient legally or otherwise, the
case is returned to the local office to conduct further conciliations
or is disapproved for litigation.
19. For years, the EEOC has litigated challenges to proper
conciliation with varying degrees of success. Currently, the EEOC is
taking two completely new litigation positions: (1) courts have no
authority to review the EEOC's conciliation efforts; and (2) no
information about conciliation can be put before a court unless the
EEOC consents. These positions make the EEOC accountable to no party or
court for its conciliation efforts. After almost 40 years of litigating
the issue of conciliation, why is the EEOC now attempting to take that
issue off the table? Please provide any and all documentation regarding
this EEOC position.
Response: With regard to judicial review of the Commission's
efforts to obtain a conciliation agreement, the Commission recently has
addressed the issue in several judicial districts where there are no
controlling appellate decisions on whether Title VII authorizes
judicial review of EEOC conciliations. The Commission has relied upon
the plain language of Title VII, which allows the Commission to declare
conciliation unsuccessful if it has been ``unable to secure from the
respondent a conciliation agreement acceptable to the Commission.'' The
Commission has argued in its cases that this language evidences an
intent to commit conciliation, which the statute describes as an
``informal'' method of achieving an agreement, to the discretion of the
Commission and to make it non-reviewable by a court. 42 USC Sec.
2000e-5(f)(1). Similarly, the plain language of 42 USC Sec. 2000e-5(b)
states that nothing said or done in conciliation may be made public or
used as evidence in a subsequent proceeding without the consent of the
persons concerned. The Commission has argued that this statutory
provision reflects congressional intent to keep the negotiations of the
conciliation process, like those in any settlement process, generally
confidential and unrestrained by the concern of subsequent judicial
scrutiny.
Significantly, some appellate courts have recognized that other
parts of the EEOC's administrative process--namely its investigation
and reasonable cause determination--are judicially unreviewable. See,
e.g. EEOC v. Caterpillar, 409 F.3d 831 (7th Cir. 2005).
The EEOC recognizes that it has a duty to attempt to conciliate
before bringing a civil action and, moreover, it has an enormous
incentive to conciliate effectively. Over the last five years, the EEOC
has attempted conciliation in 4,000 to 6,000 cases a year. As stated in
response to Question 18, many matters are successfully conciliated by
the Commission each year, but when conciliation fails, the EEOC is able
to pursue litigation in only a small fraction of those cases.
20. Why do certain EEOC regional directors refuse to share
information about what the EEOC learned during its investigation during
the conciliation process even though they ultimately must do so in
litigation if conciliation fails? Wouldn't sharing relevant information
with the target of the investigation help resolve more cases and
accomplish the goal of compliance with Title VII?
Response: There are multiple opportunities to provide and receive
information concerning a pending investigation. An investigation
typically begins when an individual files a charge of employment
discrimination alleging that the employer discriminated against him/her
because of a basis prohibited by the statutes EEOC enforces. In EEOC's
53 field offices, our staff sends a copy of the charge to the employer
and then investigates the allegations contained in the charge,
collecting documentary evidence and in some cases interviewing
witnesses. The employer has an opportunity to submit a position
statement in response to a charge and information may be shared with
the employer at various points during the investigation if doing so
facilitates the investigation. As the investigation ends, the EEOC
investigator holds a Pre-Determination Interview (PDI) with the
employer, in most cases, by phone. During the PDI, the investigator
reviews with the employer or the employer's representative the evidence
collected and also asks the employer whether it wishes to submit any
additional evidence which might be relevant to EEOC's analysis of the
evidence. If EEOC concludes based on the evidence that there is
``reasonable cause to believe discrimination has occurred,'' the agency
issues a Letter of Determination, which details the legal and factual
bases for the ``reasonable cause'' finding.
During the conciliation process, which begins only after a Letter
of Determination has been issued, the charging party, the employer and
EEOC discuss how the matter might be resolved. Conciliation focuses on
two issues: (1) how the charging party can be made ``whole,'' i.e.,
what relief is necessary to place the charging party as near as
possible in the situation he or she would have been if the
discrimination had not occurred, and (2) what steps the employer should
take to end the discrimination and prevent further discrimination.
During conciliation, the central focus of the discussion is the
appropriate relief to remedy the discrimination, rather than liability
issues. EEOC staff share information with the employer during the Pre-
Determination Interview and during conciliation.
21. Private lawyers who sue employers engage in a cost-benefit
analysis to determine whether the cost and risk of going forward to
trial is warranted by the potential financial outcome. As the steward
of taxpayer dollars, do you believe the EEOC should do this too? What
are the EEOC's procedures for resolving cases in a timely manner to
reduce costs to employers, and ultimately the taxpayer?
Response: Unlike private litigation, the potential financial
outcome is not the only or even the primary benefit the Commission
considers. Advancing the public interest in stopping and remedying
discrimination is the most important consideration for EEOC as a law
enforcement agency. In many cases, broad-based injunctive relief is an
equally or more important benefit than the financial outcome. The pace
of EEOC litigation, like all litigation in the federal courts, depends
upon numerous factors, including factors beyond the litigants' control.
However, the Commission generally makes early attempts to settle cases
and continues to identify settlement opportunities throughout the
litigation.
22. The EEOC's Strategic Enforcement Plan states the EEOC has
superior access to data, documents, and potential evidence of
discrimination in recruitment and hiring, and therefore is better
situated to eliminate barriers in recruitment and hiring than are
individuals or private attorneys, who have difficulties obtaining such
information. In determining whether to bring other systemic litigation,
does the EEOC consider whether the individuals affected have the means
and ability to seek redress through private civil litigation? In your
view, should it do so?
Response: Yes, in all litigation decisions the Commission considers
whether the affected individuals have the resources to seek redress. As
a federal law enforcement agency with extensive responsibilities and
limited resources, however, the Commission also considers broader law
enforcement interests. In systemic cases in particular, the Commission
has a strong interest in securing broad-based injunctive relief to
prevent future discrimination, and must consider whether private
enforcement efforts would result in such relief or whether the
Commission's participation in the litigation is necessary to ensure
that adequate remedies, including targeted equitable relief, are
obtained.
23. In litigation, the EEOC claims an attorney client privilege
with charging parties and claimants. But in practice the EEOC does not
consider their wishes when deciding whether to settle a case or go to
trial. Why should the EEOC be able to have it both ways unlike
attorneys in other litigation?
Response: As a law enforcement agency supported by tax dollars, the
EEOC, unlike private attorneys, not only has an obligation to seek
relief for aggrieved individuals, but must also ensure that the public
interest is served when it conducts litigation. EEOC does consider the
interests of charging parties in its litigation. Although EEOC
determines the conditions under which it will resolve litigation it
brings, the monetary relief it will accept in a settlement often
depends on what the claimant(s) believes is satisfactory. But even
where there is agreement among EEOC, claimants, and the defendant on
the amount of monetary relief to be paid to the claimants, EEOC will
not settle a case unless adequate injunctive and affirmative relief are
also provided.
EEOC files suits in its own name, and unless a charging party or
other claimant intervenes, it is the only plaintiff. Like any other
party, EEOC has sole discretion regarding the terms on which to resolve
the claims it brings. Although EEOC usually seeks relief for one or
more individuals in its suits, its primary purpose in bringing
litigation is to further the public interest in eliminating employment
discrimination. Charging parties are informed prior to the initiation
of an EEOC suit that although EEOC will be seeking particular relief
for them, its first obligation is to the public interest, and thus at
some point in the litigation EEOC may act in a manner that the charging
party believes is contrary to his or her interests. In Title VII, ADA,
and GINA suits, charging parties also are informed of their right to
intervene in EEOC's suit.
EEOC does not claim an attorney-client relationship with claimants,
and therefore there is no inconsistency in its refusal to settle a case
even though monetary relief has been offered that is satisfactory to
the claimants--a situation that rarely occurs. EEOC believes that in
providing the agency with litigation authority in 1972 for the purpose
of both ``implement[ing] the public interest [and] bring[ing] about
more effective enforcement of private rights,'' General Telephone Co.
of the Northwest, Inc. v. EEOC, 446 U.S. 318, 326 (1908), Congress
could not have intended that claimants in EEOC suits would be denied
the right to communicate confidentially with EEOC attorneys, putting
them in a worse position than if they had filed separate actions, which
Congress believed many could not afford to do. Thus, EEOC takes the
position that although it does not have an attorney-client relationship
with claimants, the elements of the attorney-client privilege apply to
EEOC's interactions with claimants that are necessary for the agency to
litigate its claims effectively. This means not only that
communications between EEOC attorneys and claimants are protected from
disclosure, but ex parte contacts by opposing attorneys with claimants
are prohibited.
24. The EEOC is required to establish or make available an
Alternative Dispute Resolution (ADR) program that may be available for
the pre-complaint process and the formal complaint process. The EEOC,
however, may make a determination regarding whether to offer ADR in a
particular case.
a. Once a decision has been made by EEOC as to whether to offer
ADR, are the parties involved notified of that decision prior to
further administrative contact? If not, why not?
b. What percentage of cases does the EEOC offer ADR in the pre-
complaint process?
c. What percentage of cases does the EEOC offer ADR in the formal
complaint process?
d. Does the EEOC offer ADR during initial counseling of the
complainant? If not, what informal methods of resolution does the EEOC
counselor offer?
e. How does the EEOC decide whether to offer ADR in a particular
case?
f. In deciding whether to offer ADR in a particular case, does the
EEOC take into account a claimant's desire to mediate, litigate, or
settle?
Response: The procedures applicable to discrimination charges filed
against private and state and local government employers differ from
the procedures applicable to complaints filed against the federal
government as an employer. This question appears to confuse the Federal
complaint process (complaints against federal agencies) with the system
EEOC uses to process complaints against private sector and state and
local government employers. We are providing a general explanation as
to how EEOC uses mediation to resolve disputes involving employees and
employers in the private and public sectors.
EEOC uses mediation extensively as part of its processing of
charges filed against private and state and local government employers.
Participation in mediation is strictly voluntary and at no cost to the
parties. EEOC supplies the neutral who leads the discussion between the
charging party and employer as they seek to come to a mutual agreement
as to how to resolve the matter. Mediation is offered to approximately
65 to 70 percent of all charging parties. Once the charging party
accepts the offer, we then ask the employer whether they wish to
mediate the dispute. As shown below, the majority of employers do not
agree to mediation:
2010 Respondent acceptance rate: 24.4%
2011 Respondent acceptance rate: 25.6%
2012 Respondent acceptance rate: 25.5%
If the parties agree to mediate, the success rate is extremely
high: more than 70 percent of the mediations result in resolution of
the charge.
2010 73.7%; 2011 73.4%; 2012 76.6%
In addition, the agency encourages the employer community to enter
into Universal Agreements to Mediate (UAMs). These agreements reflect
employers' commitment to participate in mediation. At the conclusion of
FY 2012, the agency had secured a cumulative multi-year total of 2,140
UAMs, which is a 7.1 percent increase from FY 2011.
For complaints against federal agencies as employers, complainants
must first participate in counseling by an EEO counselor employed by
the federal agency. The federal sector process delineates between a
pre-complaint process (counseling), during which ADR is routinely
offered, and the formal complaint process. Accordingly, we cannot
provide specific answers to questions A-F.
25. When a complainant wishes to file a class complaint after
initial counseling, the complaint is sent to the relevant EEOC field or
district office, where an EEOC administrative judge determines whether
to accept or dismiss the class complaint. To be certified as a class,
the administrative judge must decide the certification requirement of
numerosity, commonality, typicality, and adequacy of representation are
fulfilled.
a. Does the EEOC separately communicate with each member of the
proposed class in its determination of the class certification
requirements?
b. Does the EEOC collect documents and other non-testimonial
evidence from each member of the proposed class in its determination of
the class certification requirements?
c. Is the employer notified during this process that a class
complaint is under consideration? If not, why not?
Response: The processing of class complaints of discrimination
filed by Federal employees against Federal Agency employers is governed
by 29 CFR 1614.204 and differs from the private sector administrative
process.
In the Federal sector process, a Federal employee files a complaint
with the Agency that allegedly discriminated against him or her. A
complainant may move for class certification at any point in the
process when it becomes apparent that there are class implications to
the claims raised in the individual complaint, but they must first seek
counseling with an agency counselor. Once the class complaint is filed
with the agency, the agency representative forwards the complaint and
the counselors report to the Commission. The Commission assigns the
complaint to an administrative judge or complaints examiner. (Sec.
1614.204(c)).
(a) The EEOC does not separately communicate with the individual
class members or collect documents or other evidence directly from
class members. The administrative judge communicates with the class
agent, who acts for the class during the proceeding. (Sec.
1614(a)(3)).
(b) The administrative judge communicates with the class agent if
more information is needed to make a decision regarding the
prerequisites for certification of a class complaint. 29 CFR
1614.204(d)(2). The administrative judge does not communicate directly
with class members.
(c) The administrative judge transmits the decision to accept or
dismiss the class complaint to the Federal Agency and the class agent.
The Agency then takes final action by issuing an order within 40 days
of receiving the hearing record and the administrative judge's
decision. (Sec. 1614.204(d)(7)). The final order notifies the class
agent whether the Agency will implement the decision of the
administrative judge. The Agency must use reasonable means to notify
all class members of the acceptance of the complaint for further
processing. (Sec. 1614.204(7)(e)).
26. In fiscal year 2012, how many lawsuits did the EEOC win
outright, through jury verdict or summary judgment?
Response: In FY 2012, the Commission resolved 13 litigation cases
through a favorable court order (judgment following a verdict, default
judgment, or summary judgment for the Commission).
27. The EEOC claims process has a costly effect on small
businesses, especially when the case is litigated. What are the EEOC's
internal procedures for resolving cases in a timely manner to reduce
costs to employers, and ultimately consumers?
Response: EEOC is sensitive to the concerns of small business and
devotes significant resources to educating small businesses so that
they do not run afoul of the EEO laws. In fact, the Small Business
Administration Ombudsman has given EEOC a rating of ``A'' or ``A-'' for
every year of this last decade for its efforts in responding to small
business concerns. EEOC's administrative enforcement procedures provide
small business with opportunities to resolve charges efficiently. EEOC
offers mediation to both parties at the beginning of a charge. If both
the employer and employee agree to mediation, over 75 percent of those
charges are resolved successfully in the mediation process, and those
resolutions occur in an average of 90 days. Likewise, employers are
encouraged to settle charges prior to the completion of our
investigation and to provide timely information to EEOC to rebut the
allegations in a charge. Either can ensure efficient resolution of a
charge.
EEOC has created fact sheets, brochures and compliance guidance
which are available through the EEOC website. Small businesses can
obtain these materials free of charge through EEOC's publication
center. Copies may be ordered through EEOC's website at http://www/
eeoc.gov/eeoc/publications/index.cfm or via a toll free telephone
number (1-800-669-3362). EEOC has also developed fact sheets and
publications specifically for small employers, such as ``Small
Employers and Reasonable Accommodation'' and ``Questions and Answers
for Small Employers on Employer Liability for Harassment by
Supervisors.'' To help small employers understand newly enacted laws,
the EEOC has posted ``Questions and Answers for Small Businesses: The
Final Rule Implementing the ADA Amendments Act of 2008'' and
``Questions and Answers for Small Businesses: EEOC Final Rule on Title
II of the Genetic Information Nondiscrimination Act of 2008'' on its
website. These documents also invite small employers to contact our
Small Business Liaisons to obtain confidential assistance with
compliance in specific workplace situations.
Also, EEOC provides no-cost outreach and education programs as well
as fee-based training and technical assistance to all employers. The
training and materials we provide to small employers have been designed
to give them the information they need to comply with the federal anti
discrimination laws enforced by EEOC.
In FY 2012, EEOC conducted 577 free outreach events directed toward
small businesses, which reached about 63,000 small business
representatives. An additional 4,654 small business representatives
attended fee-based events. The most popular topics for small business
audiences were Mediation, An Overview of EEOC, Sexual Harassment,
Charge Processing, Title VII of the Civil Rights Act and the Americans
with Disabilities Act.
A Small Business Liaison is assigned to every EEOC office. Small
Business Liaisons answer questions about the laws EEOC enforces, our
mediation program and what to expect during an investigation. When a
charge of discrimination is filed with EEOC against a small business,
our field offices send a letter informing the employer of the
availability of the Small Business Liaison. The letter invites small
businesses to visit our website and informs small employers that any
inquiry or request for assistance directed to the Small Business
Liaison will not adversely affect the investigation of the charge.
Mindful of the importance of continuing to improve our outreach to
small businesses, EEOC's Small Business Task Force, led by Commissioner
Constance S. Barker, was established at Chair Berrien's request in FY
2011.
28. As the Supreme Court noted in Clackamas Gastroenterology
Assocs. v. Wells, the definition of ``employee'' in anti-discrimination
laws--that it is ``an individual employed by an employer''--is
``completely circular and explains nothing.'' Thus the determination as
to whether partners in a particular partnership are ``employers'' or
``employees'' is based on a multi-factored, facts-and-circumstances
test. To the extent the statute needs clarification, do you believe
litigation is the proper avenue through which to define partnerships?
Response: Although the anti-discrimination statutes do not provide
an extensive definition of the term employee, the Supreme Court has
observed in several decisions that ``'when Congress has used the term
`employee' without defining it, we have concluded that Congress
intended to describe the conventional master-servant relationship as
understood by common-law agency doctrine.''' Clackamas Gastroenterology
Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting Nationwide
Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992)). In Clackamas,
the Court relied on EEOC Guidelines that ``discuss both the broad
question of who is an `employee' and the narrower question of when
partners, officers, members of boards of directors, and major
shareholders qualify as employees.'' Id. at 448-49 (citing 2 Equal
Employment Opportunity Commission, Compliance Manual Sec. Sec.
605:0008--605:00010 (2000)).
Like many federal employment and labor statutes, the statutes EEOC
enforces broadly define employee. Court decisions and EEOC Guidelines
provide a sufficiently clear framework for assessing the factually-
intensive question of whether particular individuals are employees
covered by the anti-discrimination statutes.
29. Today, most partnerships, particularly large partnerships,
adopt internal management practices such as governing boards that allow
them to delegate managerial functions while maintaining partner
ownership of the firm, control over professional work product, and
voice on issues critical to the partnership. In your view, does the
delegation of partnership authority to internal governing boards
transform the partners of a firm into employees rather than employers?
What factors, in the EEOC's view, are most critical to determining
whether and when such a delegation transforms partners into
``employees?''
Response: As the Commission has explained in its Compliance Manual,
the determination of whether an individual is an employee, rather than
an independent contractor, partner, or other non-employee, is fact-
specific. This determination depends on the actual working relationship
between the individual and the partnership. The relevant question is
whether the individual acts independently and participates in managing
the organization (not an employee), or whether the individual is
subject to the organization's control (an employee). The EEOC has
identified six non-exhaustive factors relevant to making this
determination:
Whether the organization can hire or fire the individual
or set the rules and regulations of the individual's work;
Whether and, if so, to what extent the organization
supervises the individual's work;
Whether the individual reports to someone higher in the
organization;
Whether and, if so, to what extent the individual is able
to influence the organization;
Whether the parties intended that the individual be an
employee, as expressed in written agreements or contracts; and
Whether the individual shares in the profits, losses, and
liabilities of the organization.
In Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440,
449-50 (2003), the Supreme Court approved of the EEOC's emphasis on
``the common-law touchstone of control'' when determining whether an
individual with the title of partner is an employee under the EEO laws.
The Court noted that whether shareholder-directors in that case were
employees could not be determined by asking if the director-shareholder
position ``is the functional equivalent of a partner'' because ``there
are partnerships that include hundreds of members, some of whom may
well qualify as `employees' because control is concentrated in a small
number of managing partners.'' Id. at 445-46. The Court adopted the
six-factor control test from EEOC's guidance, emphasizing that the
coverage determination depends on ``all the incidents of the
relationship * * * with no one factor being decisive.'' Id at 451.
Thus, if a determination were made in a particular case that
individuals holding the title of ``partner'' are actually employees, it
would be a factual determination guided by existing law.
30. In the last decade the EEOC brought a highly publicized lawsuit
against the law firm Sidley Austin, alleging its partners were
employees and its retirement policy for partners therefore violated the
Age Discrimination in Employment Act. What, in the EEOC's view, were
the most significant characteristics of Sidley's partnership structure
that led the EEOC to conclude that its partners were ``employees?''
Response: In its brief to the U.S. Court of Appeals for the Seventh
Circuit, the EEOC looked at a number of factors that led it to conclude
that at least some of Sidley's partners could properly be considered
employees. In particular, the Commission's brief discussed
remuneration, noting that the extent to which partners share in the
firm's profits varies tremendously, and many received most of their pay
in a form that resembled salary. The brief discussed ownership, and
noted that the amount of each partner's required capital contribution
varied considerably from individual to individual. Finally, the
Commission's brief discussed management. Sidley was governed by a 36-
member executive committee; members of that committee owned almost 80
percent of the firm. The executive committee, and its 8-member
management committee, made all of the firm's critical decisions,
including partnership admission, partner expulsion, pay/ownership
allocations, practice group head appointments, opening and closing of
offices, and who will join the executive committee.
31. Is the EEOC currently pursuing directed investigations of
mutually agreed upon retirement policies for partners that were not
commenced following a charge filed by a partner? If so, what factors
did the EEOC consider in deciding to prioritize those investigations
over the tens of thousands of backlogged cases involving employee
complaints?
Response: There are currently two pending directed investigations
of alleged violations of the Age Discrimination in Employment Act
(ADEA) based upon policies which mandate retirement at a specified age
for person employed in various positions, including as partners.
32. The EEOC's Strategic Enforcement Plan lists six enforcement
priorities. Do you intend to make mutually agreed upon retirement
policies in legal and accounting professional partnerships a focus of
the EEOC's enforcement efforts? If so, which of the six enforcement
priorities identified in the Strategic Enforcement Plan make mutually
agreed upon retirement policies for partners an EEOC priority?
Response: Retirement policies are not a priority issue under the
EEOC's Strategic Enforcement Plan. Whether individuals are employees
under the federal civil rights laws is an important issue of access to
justice that is a priority (#5) for the agency under the Strategic
Enforcement Plan.
While the establishment of priorities in the SEP is designed to
provide focused attention and resources in order to have greater
impact, the SEP does not preclude the agency from addressing other
issues of discrimination.
questions regarding the eeoc's interaction with the department of
labor's office of federal contract compliance programs (ofccp)
34. Did the EEOC comment on the OFCCP's rescission of the agency's
2006 Compensation Standards and the issuance of OFCCP Directive 307?
Why not? The EEOC agreed with the 2006 Compensation Standards. Has the
EEOC's position changed?
Response: The EEOC reviewed OFCCP's notice of proposed rescission
of the 2006 compensation standards in January 2011 after it was
published in the Federal Register; reviewed a draft notice of final
rescission in January 2012 pursuant to EO 12067; and reviewed draft
notices of final rescission in November and December of 2012 as part of
the Office of Management and Budget's EO 12866 interagency review
process. The EEOC commented on the notice of rescission in November
2012. The EEOC did not review Directive 307 and therefore did not
comment on it.
The substance of the EEOC's interagency comments and conversations
is protected from disclosure by the deliberative process privilege.
The EEOC's position in 2006 that the OFCCP's compensation standards
were consistent with Title VII has not changed. However, the EEOC also
does not disagree with the OFCCP's decision to rescind the standards
and to adopt new standards that are also consistent with Title VII and
that give the agency more flexibility to enforce EO 11246 in a manner
consistent with Title VII.
35. As you know, Executive Order (EO) 12067 requires the EEOC to
ensure coordination of federal equal employment opportunity enforcement
efforts. In particular, EO 12067 requires the EEOC ``to develop uniform
standards, guidelines, and policies defining the nature of employment
discrimination'' and ``develop uniform standards and procedures for
investigations and compliance reviews.'' Did the EEOC review OFCCP's
notice of rescission of the 2006 Compensation Standards and the
issuance of Directive 307 under EO 12067? Did the EEOC provide any
feedback to OFCCP about the approach contained in Directive 307? Please
provide any and all correspondence between the EEOC and OFCCP on this
subject.
Response: As stated in the answer to Question 34 above, EEOC did
review OFCCP's notice of rescission and provided feedback to OFCCP. The
EEOC did not review Directive 307 and therefore did not comment on it.
Attached are copies of nonprivileged correspondence between OFCCP and
EEOC on this subject.
36. Under the EEOC's Compensation Manual, published in 2000, the
EEOC instructs investigators to ``determine the similarity of the jobs
by ascertaining whether the jobs generally involve similar tasks,
require similar skill, effort, and responsibility, working conditions,
and are similarly complex or difficult.'' The EEOC's Compensation
Manual continues, ``[t]he actual content of the jobs must be similar
enough that one would expect those who hold the jobs to be paid at the
same rate or level.'' Does the EEOC interpret OFCCP Directive 307 to be
altogether consistent with these instructions?
Response: There is no conflict between the EEOC Compliance Manual
language quoted above, which appears in the Guidance section about
disparate treatment, and the relevant language in OFCCP Directive 307.
In particular, Directive 307 states at pp. 12-13: ``For purposes of
evaluating compensation differences, employees are similarly situated
where it is reasonable to expect they should be receiving equivalent
compensation absent discrimination. Relevant factors in determining
similarity may include tasks performed, skills, effort, level of
responsibility, working conditions, job difficulty, minimum
qualifications, and other objective factors.'' In addition, the EEOC's
Compliance Manual's disparate treatment subsection also states that the
method suggested for conducting a comparative compensation analysis is
not intended as an exclusive method, and subsequent subsections detail
other methods for determining whether compensation discrimination or
discrimination in practices that affect compensation have occurred--
topics that are also addressed in Directive 307.
37. As you know, in August, 2012, the National Research Council of
the National Academies of Sciences (NAS) released a report entitled,
``Collecting Compensation Data from Employers.'' This report was
commissioned by the EEOC. The report contained two primary
recommendations:
Recommendation 1: In conjunction with the Office of Federal
Contract Compliance Programs of the U.S. Department of Labor and the
Civil Rights Division of the U.S. Department of Justice, the U.S. Equal
Employment Opportunity Commission should prepare a comprehensive plan
for use of earnings data before initiating any data collection.
Recommendation 2: After the U.S. Equal Employment Opportunity
Commission, the Office of Federal Contract Compliance Programs, and the
U.S. Department of Justice complete the comprehensive plan for use of
earnings data, the agencies should initiate a pilot study to test the
collection instrument and the plan for the use of the data. The pilot
study should be conducted by an independent contractor charged with
measuring the resulting data quality, fitness for use in the
comprehensive plan, cost and respondent burden.
a. What is the status of the EEOC's implementation of these
recommendations? Has the EEOC and OFCCP developed a comprehensive plan?
If so, please provide a copy of the comprehensive plan. If not, why
not, and when will it be completed?
b. Has an independent contractor been selected for a pilot project?
c. How will the EEOC ensure coordination with OFCCP with regard to
these recommendations?
d. Has the EEOC had any discussions with OFCCP about the comments
OFCCP received in response to the Advance Notice of Proposed Rulemaking
on a Comprehensive Data Collection Tool, 76 Fed. Reg. 49398 (Aug. 10,
2011)?
e. Will EEOC commit to using its authority under EO 12067 to
require OFCCP to adhere to the NAS recommendations before issuing any
proposed regulations on collecting compensation data?
Response: a. EEOC is thoroughly considering the NAS Study
recommendations and will take them into account before proceeding with
new collections of compensation data. As part of the review and
consideration of the NAS Study recommendations, EEOC staff has
discussed the recommendations with representatives of the U.S.D.O.J.
Civil Rights Division and OFCCP, as well as agency stakeholders such as
the National Industry Liaison Group.
b. EEOC has neither sought nor selected an independent contractor
for a pilot project.
c. See responses to a and b, above.
d. EEOC has reviewed comments received by OFCCP in response to its
ANPRM. We have not had formal discussions with OFCCP about those
comments.
e. Pursuant to E.O. 12067, EEOC will, as it has to date,
communicate with OFCCP and continue to work closely with the OFCCP
concerning the collection of compensation data.
rep. hudson qfrs
1. There is a case in which an employee filed a gender
discrimination case against her employer. When the employer tried to
meet with the EEOC representative and the employee for consultation,
the employer instead found the EEOC representative acting as a
prosecuting attorney for the employee instead of a negotiator between
the parties. The employer was not notified prior to the meeting of the
terms of these discussions, and whether or not the EEOC representative
would be used in a mediating role or prosecuting role, leaving the
impression these meetings were informal negotiations.
a. To what extent does the EEOC give a notice of the terms to all
parties involved prior to in person consultations?
b. In other cases is it protocol for an EEOC representative to play
negotiator/mediator and prosecutor during an investigation?
c. If employers are not notified of the status of the consultation
meeting, what are their administrative rights to have counsel present
and/or delay the meeting until counsel is present?
Response: a. It is unclear from the questions at what stage of the
EEOC investigation the consultation meeting occurred. Generally,
employers and employees may meet in a mediation, which is a
confidential process separate from the investigation. (See answer 25).
Parties to an EEOC mediation generally do not, in advance of the
mediation session, share positions or terms to which they would agree.
There is considerable sharing of terms of settlement during the
mediation.
They may also meet during conciliation, which only occurs after the
investigation if the agency has made a determination that there is
reasonable cause to believe discrimination has occurred. (See answer
20.) In conciliation, EEOC invites both parties to meet, either in
person or over the phone. EEOC generally conducts conciliation in one
of two ways, i.e., the EEOC office shares the details of the proposed
conciliation terms in advance in a letter, or plans to share the terms
during the conciliation conference so they can be explained and
questions answered.
b. During an investigation of a charge, the EEOC acts as a neutral
fact-finder and gathers and evaluates evidence. The investigator may
also seek to resolve the charge through a settlement agreement prior to
a determination on the merits of the charge. At the end of the
investigation, the EEOC makes a determination on whether the evidence
establishes that there is ``reasonable cause'' to believe that
discrimination occurred. If the evidence establishes a violation, the
investigator now shifts roles. As required by the statutory
conciliation process, the investigator must represent the EEOC's
interest in obtaining an appropriate remedy for the discrimination
found.
c. Employers are notified of the status and scheduling of a
conciliation conference and have the right to have counsel present.
Scheduling of the conference is done at a mutually agreeable time. The
EEOC's Compliance Manual provides that conciliation with respondents
should generally occur face-to-face, or by phone if this cannot be
arranged or if the proposed agreement is straightforward and brief. It
also provides that whenever possible, conciliation should occur with
respondent officials who have authority to enter into an agreement.
2. As you know, the EEOC's Chicago District Office is currently
investigating PricewaterhouseCoopers regarding their partnership
agreement and mandatory retirement age. The six-factor partnership test
adopted by the Supreme Court in Clackamas would presume the partners at
PricewaterhouseCoopers are not subject to the ADEA.
a. Should the EEOC decide to pursue litigation of this case, do you
believe it would involve a major expenditure of resources or have a
high likelihood for public controversy?
b. Given the Strategic Enforcement Plan's objective of retaining
the decision to commence litigation over cases that (1) will involve a
major expenditure of resources; (2) present issues in a developing area
of law; or (3) cases with a high likelihood for public controversy,
would you expect the commission, and not the general counsel, to vote
on whether to commence litigation against PricewaterhouseCoopers?
Response: The Supreme Court's decision in Clackamas
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 446 (2003)
held that ``there are partnerships that include hundreds of members,
some of whom may well qualify as `employees.' '' The Court endorsed the
multi-factor, fact-based approach set forth in EEOC's Compliance Manual
as the correct approach to determining whether a person impacted by a
mandatory retirement policy should or should not be considered an
employee. See also Responses 28-29 above.
The General Counsel sought Commission approval for litigation
against PriceWaterhouseCoopers based upon the findings of the Chicago
District Office's direct investigation of the firm's mandatory
retirement policy for partners. The Commission voted to disapprove the
recommended litigation.
______
[Addendum to EEOC's response to questions submitted
follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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[Whereupon, at 11:10 a.m., the subcommittee was adjourned.]