[Senate Hearing 114-165]
[From the U.S. Government Publishing Office]
S. Hrg. 114-165
OVERSIGHT OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: EXAMINING
EEOC'S ENFORCEMENT AND LITIGATION PROGRAMS
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
ON
EXAMINING THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, FOCUSING ON
EXAMINING EEOC'S ENFORCEMENT AND LITIGATION PROGRAMS
__________
MAY 19, 2015
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
LAMAR ALEXANDER, Tennessee, Chairman
MICHAEL B. ENZI, Wyoming PATTY MURRAY, Washington
RICHARD BURR, North Carolina BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia BERNARD SANDERS (I), Vermont
RAND PAUL, Kentucky ROBERT P. CASEY, JR., Pennsylvania
SUSAN M. COLLINS, Maine AL FRANKEN, Minnesota
LISA MURKOWSKI, Alaska MICHAEL F. BENNET, Colorado
MARK KIRK, Illinois SHELDON WHITEHOUSE, Rhode Island
TIM SCOTT, South Carolina TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas ELIZABETH WARREN, Massachusetts
BILL CASSIDY, M.D., Louisiana
David P. Cleary, Republican Staff Director
Evan Schatz, Democrat Staff Director
John Righter, Democrat Deputy Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
TUESDAY, MAY 19, 2015
Page
Committee Members
Alexander, Hon. Lamar, a U.S. Senator from the State of
Tennessee, opening statement................................... 1
Murray, Hon. Patty, a U.S. Senator from the State of Washington.. 3
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 25
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina. 27
Murphy, Hon. Christopher, a U.S. Senator from the State of
Connecticut.................................................... 29
Roberts, Hon. Pat, a U.S. Senator from the State of Kansas....... 30
Warren, Hon. a U.S. Senator from the State of Massachusetts...... 32
Witnesses
Yang, Jenny R., Chair, Equal Employment Opportunity Commission,
Washington, DC................................................. 5
Prepared statement........................................... 6
Lopez, P. David, General Counsel, Equal Employment Opportunity
Commission, Arlington, VA...................................... 15
Prepared statement........................................... 17
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
The National Restaurant Association.......................... 38
Letter from the Healthcare Leadership Council................ 39
Response by Jenny Yang to questions of Senator:
Senator Alexander........................................ 40
Senator Paul............................................. 63
Senator Collins.......................................... 64
Senator Roberts.......................................... 64
Response by P. David Lopez to questions of Senator:
Senator Alexander........................................ 65
Senator Paul............................................. 68
Senator Collins.......................................... 68
Senator Roberts.......................................... 69
(iii)
OVERSIGHT OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION: EXAMINING
EEOC'S ENFORCEMENT AND LITIGATION PROGRAMS
----------
TUESDAY, MAY 19, 2015
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10 a.m., in room
SD-430, Dirksen Senate Office Building, Hon. Lamar Alexander,
chairman of the committee, presiding.
Present: Senators Alexander, Roberts, Scott, Murray,
Franken, Murphy, and Warren.
Opening Statement of Senator Alexander
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will please come to order. This morning,
we're holding a hearing on Oversight of the Equal Employment
Opportunity Commission: Examining EEOC's Enforcement and
Litigation Programs. Senator Murray and I will each have an
opening statement. We'll introduce our panel. After our
witnesses' testimony, Senators will have 5 minutes of
questions.
I will say to Senator Murray that I hope she will indulge
me. My statement is a little long. I'm going to abbreviate it
and I'll try not to abuse the privilege of the chair by taking
too long.
Exactly 6 months ago, I sat in the ranking member's chair
and I voted against Mr. Lopez's nomination as the EEOC General
Counsel. I said then that I believed he had placed too much
emphasis on litigating high-profile lawsuits at a time when
there were more than 70,000 complaints of workplace
discrimination that had not been investigated.
Since then, the lawsuits have continued, the agency has
suffered embarrassing rebukes from the courts, and the backlog
has grown. We're here today to find out why such an important
agency with such a critical task has gotten so far afield of
its mission.
I know our country's history. I stood on the Mall in 1963
when Martin Luther King, Jr. delivered his ``I Have a Dream''
speech. My friend, George Haley, died last week. He was
admitted to the University of Arkansas Law School in the 1950s
and had to sit in a room by himself because he was an African-
American.
I've tried in my public and private life to support equal
rights. But what's going on in the EEOC, in my view, is not
consistent with the noble actions that I just described.
My four chief concerns--and I'll hit them briefly--No. 1,
the commission is pursuing investigations that may not involve
a complaint, while the backlog of complaints has grown to over
75,000. No. 2, the commission is losing lawsuits and receiving
embarrassing rebukes from the courts, wasting taxpayer dollars.
No. 3, instead of following the law, the EEOC is focused
on, ``developing the law,'' and creating regulatory guidance
without any notice or comment.
And No. 4, there's not much about the Affordable Care Act
that this committee and the President agree on. But one thing
was employee wellness programs, and the EEOC created a conflict
with the committee, with the President, with three departments
of the Obama administration and their regulations, and now has
offered a rule to try to solve the problem that exceeds the
EEOC's authority, in my judgment, and doesn't solve the problem
at all.
First, investigations without a complaint. In my view, the
EEOC is spending too much time initiating lawsuits from
investigations which began without an individual filing a
complaint and with a clear intention by the agency to achieve a
maximum amount of publicity. For example, EEOC is investigating
at least three accounting firms, none of which was there a
complaint, but rather where partners have voluntarily adopted a
mandatory retirement age; or the Texas Roadhouse restaurant
chain, where you're investigating age discrimination because
the hosts, bartenders, and servers seem too young.
There were apparently no complaints when it started. To
make sure you have complaints, the agency is apparently
advertising on Craigslist to churn up more complaints. At the
same time, the number of backlogged--the number of complaints
of people actually aggrieved and have filed with your agency
has increased to 75,658.
Court rebukes. Six months ago at our hearing, I read some
embarrassing words from a unanimous three-judge panel on the
6th Circuit Court of Appeals, which said of an EEOC case,
``EEOC brought this case on the basis of a homemade
methodology, crafted by a witness with no particular
expertise to craft it, administered by persons with no
particular expertise to administer it, tested by no
one, and accepted only by the witness himself.''
The commission continued to appeal another case using the
same faulty witness and lost that case too, causing a unanimous
three-judge panel on the 4th Circuit to say that there were an
alarming number of errors. In a concurring opinion, one of the
judges said, ``The commission's conduct in this case suggests
that its exercise of vigilance has been lacking.''
Since 2011, EEOC has been ordered to pay attorney's fees in
11 different cases, the most recent one being in Washington
State where a judge in a Federal district court ruled that the
EEOC had demanded more than $25 million from two defendants,
and the court found it had no valid basis for doing so. This is
what the court said:
``The EEOC failed to conduct an adequate
investigation, pursued a frivolous theory of joint-
employer liability, sought frivolous remedies, and
disregarded the need to have a factual basis to assert
a plausible basis for relief under title VII.''
And there are other examples.
Respect for the rule of law. On top of all this, I am
concerned that the commission and Mr. Lopez seem to be
inventing ways to avoid following the law, taking an,
``entrepreneurial approach,'' to litigation and talking about
novel issues. Then there's the matter of guidance. In the past
2\1/2\ years, twice the commission has set a national workplace
discrimination policy through guidance, and then filed lawsuits
based on the guidance as if they, the commission, could make
the law.
And, finally, the employee wellness proposed rule. This
committee, Congress, and the President specifically authorized
employers to reward employees for making healthy lifestyle
choices. Three departments of the Obama administration issued
regulations consistent with the law. Yet, in 2014, EEOC decided
to sue employers for following the law and following those
regulations and offering those plans. Even the White House
press secretary expressed some concern about this. Our
committee expressed concern about this.
In April, EEOC offered a proposed rule on employer wellness
programs. But the rule ignores the law and the administration's
regulations. We can talk more about that.
So this is not the first time these issues have come up. I
issued a report last fall detailing many of these problems. We
held a bipartisan hearing earlier this year. The White House
press secretary, as I said, has expressed some concern. But no
one seems to be listening. Here we are still about to discuss
the fact that EEOC is still spending its time looking for
investigations where there are no complaints, while a backlog
of complaints grows to over 75,000; still receiving
embarrassing rebukes from the court; still experimenting with
developing the law and guidance free from public comment; and
still ignoring the intentions of Congress and the President in
writing into Federal law a system for encouraging businesses to
offer employee wellness programs.
All of these issues are of concern to me, and I look
forward to hearing from the EEOC's General Counsel and chair
regarding how they are addressing them.
The Chairman. Senator Murray.
Opening Statement of Senator Murray
Senator Murray. Thank you very much, Mr. Chairman. I want
to thank our witnesses, Chair Jenny Yang and General Counsel
David Lopez, for taking the time to be here today.
The Equal Employment Opportunity Commission does important
work to protect workers and to prevent discrimination in the
workplace. I appreciate the hard work and dedication the agency
and the Commission bring to that cause. This hearing gives us
an opportunity to remember the critically important role the
EEOC plays in eliminating discrimination in workplaces across
the country.
As you have heard me say, I believe that real, long-term
economic growth is built from the middle out, not the top down.
And our government, economy, and workplaces should work for all
families, not just the wealthiest few. But we can't truly
achieve those goals if some individuals in our country face
discrimination in the workplace or aren't considered for jobs
because of who they are.
Race, ethnicity, national origin, religion, gender, sexual
orientation, and disability have nothing to do with a
person'sability and potential in the workplace. But we can't
back up that basic belief and put it into practice without the
EEOC, which is charged with enforcing anti-discrimination laws.
The EEOC will celebrate its 50th anniversary this year.
Before 1965, it was legally permissible for a business to fire
someone for their religious beliefs. Employers could harass
employees based on the color of their skin. Job applicants
could be disqualified in the application process because of
where they came from.
In 1964, Congress passed the Civil Rights Act, and just a
year later, the EEOC opened its doors to help ensure workers
had the right to equality and opportunity. For five decades,
the Commission has made great strides in creating a more fair
and more just society.
12In fact, the EEOC's success rate in litigating
discrimination cases has consistently topped 90 percent,
including more than 93 percent in this past fiscal year. That
success comes despite years of budget cuts and belt tightening
that has whittled the agency's workforce by more than 700 full-
time employees since 1995. And it's one more reason why we have
got to build on the bipartisan budget deal to roll back the
automatic cuts so we can restore investments that expand
opportunities for all families.
I believe it is time for Congress to step up and give the
EEOC the resources it needs to fight discrimination in our
Nation's workplaces. That would help the EEOC reduce its severe
backlog.
EEOC demonstrated in 2011 and 2012 that with just a small
increase in resources, they could make steady reductions in the
backlog. But sequestration and shutdowns have made that work
more difficult. That is truly concerning. In too many cases,
justice delayed is justice denied. So I look forward to hearing
from our witnesses today on what the agency is doing to reduce
its backlog of claims.
This year, by the way, we are also celebrating the 25th
anniversary of the Americans with Disabilities Act. The ADA and
the amendments that followed prohibited discrimination on the
basis of disability. But we still need to make progress to
promote equality of opportunity in the workplace for
individuals with disabilities. And we need to ensure that all
employers recognize these important protections, for example,
in workplace wellness programs.
Congress also needs to update our anti-discrimination laws
to protect people from discrimination based on their sexual
orientation or gender identity. We need stronger LGBT anti-
discrimination laws in employment, education, housing, credit,
and in public places. On that note, I hope that this committee
can continue its bipartisan efforts to address these critical
issues.
Freedom from discrimination is a requirement for making
sure all Americans have the opportunity to work hard and
succeed. I want to commend the EEOC on the important work it
does to make sure our government, economy, and workplaces are
free from discrimination.
Thank you, and I look forward to your testimony.
The Chairman. Thank you, Senator Murray.
I'd like to welcome our two witnesses today. Jenny Yang
serves as Chair of the Equal Employment Opportunity Commission.
Prior to joining the EEOC in April 2013, she was a partner in a
law firm. She previously worked at the Department of Justice in
the Employment Litigation Section of the Civil Rights Division.
David Lopez currently serves as General Counsel of the
EEOC. Prior to becoming general counsel in 2010, Mr. Lopez
served in various roles in the EEOC, including senior trial
attorney, and also special assistant to then-EEOC Chair Gilbert
Casellas.
We look forward to the conversation today and ask that each
of you summarize your testimony in 5 minutes.
Ms. Yang, welcome.
STATEMENT OF JENNY R. YANG, CHAIR, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, WASHINGTON, DC
Ms. Yang. Good morning, Chairman Alexander, Ranking Member
Murray, and distinguished members of the committee. Thank you
for inviting me to testify today with our General Counsel,
David Lopez.
As chair of the EEOC, it has been a privilege to work with
over 2,000 dedicated colleagues across the country to fulfill
our singular mission to stop and remedy discrimination in the
workplace. As Senator Murray noted, this July marks two
historic milestones, our 50th anniversary as an agency and the
25th anniversary of the ADA.
We are assessing where we are today as well as charting our
path forward to make the promise of our civil rights laws a
reality for all. Over the past 50 years, our Nation has made
great strides toward building more inclusive workplaces. Yet
across the country, we continue to see discrimination in many
forms, and I will highlight just a few.
Just last month, the Commission held a meeting in Miami
where we heard testimony on the persistent challenge of race
and ethnicity discrimination in the 21st century workplace.
Also last month, we settled claims that a drilling company
subjected African-Americans, Latinos, Native Americans, and
Asian Americans to racial and ethnic slurs, physical
harassment, and exclusion from higher paying jobs. We obtained
$14.5 million for over 1,000 workers, as well as important
changes to the employment practices going forward.
We have represented many women who are paid less than men
even when they are doing the same job and are equally if not
more qualified. In addition, in 70 percent of the pregnancy
charges that are filed with our agency, women say that they
were fired because they are pregnant.
For example, we recently resolved a case on behalf of a
woman who had a miscarriage. She requested 5 days off to obtain
medical treatment, and she was fired for taking that time.
We continue to see harassment in many forms, including
sexual harassment and assault, which is particularly endemic
for farm worker women. Often, EEOC has been the last hope as
criminal prosecutions are rare. And despite a generation of
young people who have grown up with the ADA, many qualified
people still today can't find a job or advance. So we know that
our work is not done.
Our agency is helping employers to build stronger and more
productive workplaces through a commitment to equality. I truly
believe that most employers want to comply with the law.
Providing clear guidance and investing in outreach and
education are the best ways to prevent discrimination.
We appreciate the need to ensure coordination of our policy
guidance and our enforcement efforts to provide a clear and
consistent agency position. On April 20th, as Senator Alexander
noted, we published a Notice of Proposed Rulemaking that
addresses the ADA's application to employer wellness programs
to provide more certainty on the interaction of our Federal
laws. We understand the importance of issuing an NPRM on GINA
and wellness programs, which we are targeting for July.
It is a top priority of mine to better serve the public,
including by more effectively managing the pending inventory of
charges. In particular, we are investing in two areas: hiring
and training of frontline staff to rebuild capacity after years
of hiring freezes and efficient case management systems. We are
also strongly committed to early resolution of charges. The
overwhelming majority of our work is accomplished through
voluntary resolutions, through mediation, settlement, and
conciliation.
Litigation is truly a last resort. For every lawsuit we
file, we voluntarily resolve over 100 charges without filing
suit. Our litigation program has been highly effective with a
successful resolution rate consistently over 90 percent. Where
we have faced losses, we have implemented lessons learned
throughout the agency.
The Supreme Court's recent decision in Mach Mining is a
positive step forward for all parties. The decision provides
needed clarity on the standards for judicial review of our
conciliation efforts.
The agency has taken our responsibility to conciliate
seriously, and we will continue to do so. Over the past 3
years, our success in resolving charges through conciliation
has averaged nearly 40 percent. To continue this progress, we
will be providing additional training to our investigators to
ensure they have the highest conciliation skills.
Ultimately, our goal is to open doors to opportunity for
all. To address some of our most stubborn workplace challenges,
we are building active partnerships to develop innovative
solutions. One example is our recently launched Select Task
Force on Harassment led by Commissioners Lipnic and Feldblum,
where we're working with our stakeholders to identify
underlying problems to workplace harassment.
Thank you very much, and I look forward to your questions.
[The prepared statement of Ms. Yang follows:]
Prepared Statement of Jenny R. Yang
Good afternoon Chairman Alexander, Ranking Member Murray, and
distinguished members of the committee. Thank you for inviting me to
testify today on behalf of the Equal Employment Opportunity Commission
(``the Commission'' or ``EEOC'').
I appreciate the opportunity to appear before you to discuss the
work and strategic priorities of the agency. It has been a privilege to
serve as chair of the EEOC since September 2014 and as a member of the
Commission since May 2013. As you know, the EEOC is a five-member bi-
partisan commission responsible for enforcing our Nation's laws against
workplace discrimination. As of January, we have had a full complement
of commissioners: Commissioners Constance S. Barker, Chai R. Feldblum,
Victoria A. Lipnic, and Charlotte A. Burrows. The agency's General
Counsel, P. David Lopez, has authority over the conduct of the agency's
litigation, and I am pleased to be here with him providing testimony
today.
I thank the members of this committee for your support for the
agency. Since joining the Commission, and particularly in my role as
Chair, I have seen the value of open lines of communication between
EEOC and Congress. A steady, two-way flow of information keeps you
abreast of the agency's efforts and objectives, while keeping us aware
of matters on the minds of your constituents and ours. Today's
discussion adds to that helpful exchange of information. I look forward
to our continued work with this committee and others in Congress over
the course of my tenure.
Over the years, EEOC has made critical progress in advancing equal
opportunity for workers, yet we have also faced challenges. The
Commission, our General Counsel, and the agency's more than 2,000
dedicated employees take very seriously our duty to responsibly and
efficiently discharge the work Congress has entrusted to us. As such,
we are continually developing ways to improve our service to the
public. I look forward to highlighting some of those initiatives today.
historic milestones
This July marks two historic milestones for EEOC. On July 2, we
will celebrate EEOC's 50th anniversary, and on July 26, we will
commemorate the 25th anniversary of the Americans with Disabilities Act
(ADA). For our agency, these occasions present a time for reflection
and recommitment to expanding opportunity in the American workplace.
Title VII of the Civil Rights Act of 1964 (title VII) created EEOC
to enforce protections against employment discrimination on the basis
of race, color, national origin, religion, and sex. We opened our doors
on July 2, 1965, a year to the day after the Civil Rights Act was
signed. It was projected in our first year that EEOC would receive
approximately 2,000 charges of discrimination. In reality, EEOC
received nearly 9,000 charges.
In the 50 years since, the agency's responsibilities and workload
have expanded exponentially. Today, we receive nearly 10 times as many
charges a year as we did in 1965. In addition, Congress has vested EEOC
with responsibility to enforce the Equal Pay Act of 1963 (EPA), the Age
Discrimination in Employment Act of 1967 (ADEA), Section 501 of the
Rehabilitation Act of 1973, Titles I and V of the Americans with
Disabilities Act of 1990 (ADA), and Title II of the Genetic Information
Nondiscrimination Act of 2008 (GINA).
ensuring equal opportunity in the 21st century workforce
The Nation has made great strides toward equal employment
opportunity for all. Never before in our Nation's history has the
American workplace been more inclusive than it is today. EEOC has been
a critical part of that progress, creating real and meaningful
opportunities for people of all backgrounds. Through 53 field offices
around the country, we help employees and employers in understanding
our civil rights laws. We initiate early and informal resolution of
employment disputes and work with employers to improve their policies
to prevent discrimination from recurring. We use litigation as a last
resort to ensure accountability when violations do occur, and we have
done so effectively. EEOC has obtained favorable results in 93 percent
of the cases resolved during fiscal year 2014, and over the past 5
years we have achieved, on average, favorable results in 91 percent of
our case resolutions.
Yet, despite significant progress, EEOC's work is unfinished.
Notwithstanding the diligent efforts of many employers and the work of
EEOC, across the country we continue to see discrimination--in both
overt and subtle forms--based on race, national origin, sex, religion,
age, disability, and genetic information. What's more, individuals who
come forward to raise concerns of unequal treatment frequently face
retaliation.
Highlighted below are some examples of the ways in which we see
discrimination manifest itself today, and the strategies that EEOC is
employing to prevent, stop, and remedy discrimination. The ongoing
challenge of combating employment discrimination in all its forms is
what makes EEOC's work as critical today as it was in 1965.
Fulfilling the Promise of the ADA for People With Disabilities
As we approach the 25th Anniversary of the ADA, today's young
people with disabilities, sometimes known as--the ``ADA generation''--
have increased access to education, employment, and full participation
in American society. However, even with notable advancements to make
our communities more accessible, much remains to be done to fulfill the
promise of the ADA in the workplace. Over the past 4 years,
approximately 35 percent of the suits that EEOC filed on the merits
included allegations of discrimination under the ADA. In the last
fiscal year alone, 30 percent of all charges of discrimination filed
with the EEOC alleged disability discrimination. During that period,
EEOC staff worked with more than 4,800 employers to reach voluntary
resolutions of ADA charges through settlements and conciliation
agreements, obtaining more than $95 million for workers with
disabilities while helping to establish workplace practices that enable
people with disabilities to succeed at work.
EEOC's litigation on behalf of people with disabilities has
involved workers in all segments and sectors of the workforce
experiencing discrimination ranging from failure to provide reasonable
accommodations and asking prohibited disability-related questions of
applicants and employees, to refusing to hire qualified applicants
based on stereotypes, to discharging qualified workers on the basis of
disability. In one striking example from September 2014, the U.S. Court
of Appeals for the Fifth Circuit upheld a jury's liability verdict in
EEOC v. Hill Country Farms, Inc., d/b/a Henry's Turkey's Servs, a
lawsuit filed on behalf of 32 workers with intellectual disabilities.
EEOC presented evidence that for years the employer subjected the
workers to abusive verbal and physical harassment, restricted their
freedom of movement, required them to live in sub-standard conditions,
and failed to provide adequate medical care when needed. The agency won
the largest verdict in its history on behalf of these workers at $240
million, although this was later reduced to conform to statutory caps.
In February 2015, the U.S. District Court for the Eastern District
of Michigan, in EEOC v. P.A.M. Transp., Inc., entered a judgment
against the employer. EEOC alleged that the employer's medical
clearance policy violated the ADA by requiring all drivers to notify
the company of any contact with a medical professional, including for a
routine physical, and then the company terminated employees based on
the overly broad medical inquiries. The judgment required the employer
to pay nearly half a million dollars to 12 former truck drivers and a
separate judgment entered against the employer required the company to
change its medical clearance policy to make medical inquiries of
drivers only when they are job-related and consistent with business
necessity.
Persistent Race and Ethnicity Discrimination
As we see across the country, discrimination based on race and
ethnicity persists in our Nation's workplaces. In fiscal year 2014,
race discrimination remained the most frequent ground for
discrimination alleged under title VII, comprising 35 percent of
charges filed with the EEOC under all the statutes we enforce. Across
the country, the agency has resolved race and national origin
discrimination charges alleging barriers to equal opportunity, such as
hiring discrimination and harassment on the job. During fiscal year
2014, EEOC staff recovered more than $106 million in administrative
resolutions of race and national origin charges--without litigation. In
one notable resolution from fiscal year 2013, EEOC reached a
conciliation agreement with an employer that stemmed from a systemic
investigation launched after 78 charges were filed with the EEOC. The
conciliation agreement provided $21.3 million to African-American
workers whom the EEOC found were subjected to racial discrimination.
When litigation has been necessary, we have succeeded in obtaining
compensation for victims as well as vital changes to discriminatory
practices at issue. For example, just last month, in EEOC v. Patterson-
UTI Drilling Company LLC, EEOC settled claims of race and national
origin discrimination affecting more than 1,000 employees. EEOC alleged
that since at least 2006, the employer engaged in a nationwide pattern
or practice of discrimination on its drilling rigs, including by
assigning African-Americans, Native Americans, Hispanics or Latinos,
Asian-Americans, and biracial individuals to the lowest level jobs,
failing to train and promote them, disproportionately disciplining and
demoting them, and subjecting them to pervasive racial and ethnic
slurs, and engaging in retaliation. The employer agreed to pay $14.5
million, which includes a settlement fund plus benefits obtained in
separate conciliation agreements on related charges of discrimination,
as well as significant changes to its practices. In September 2014, in
EEOC v. McCormick & Schmick, EEOC settled a case in which it alleged
that a nationwide seafood restaurant refused to hire any African-
Americans into positions in which they would interact with the public,
known as ``front-of-the-house'' positions, at its Baltimore
restaurants. The consent decree in the case provides approximately $1.3
million to approximately 200 individuals and requires significant
changes in recruitment, hiring, and work assignments to ensure the
restaurant's hiring practices do not discriminate in the future.
Barriers to Equal Employment Opportunity for Women
Women continue to confront multiple barriers in the workplace.
Although women now comprise nearly half the workforce, they continue to
be over represented in low wage jobs. The EEOC has challenged
discriminatory hiring practices against women in traditionally male
fields such as trucking, mining, construction, and warehouse work. For
example, in EEOC and Clouse v. New Prime, Inc., the court ruled that
one of the Nation's largest trucking companies engaged in a deliberate
pattern or practice of discrimination against female applicants for
jobs as drivers by requiring that they be trained only by female
trainers. Given the very few female trainers, this practice resulted in
female trainees waiting extended periods of time--sometimes as long as
18 months--for a female driver trainer to become available. As a result
most female drivers were denied employment.
Many women also experience a persistent pay gap, even when they
work in the same jobs and are equally qualified as men. To assist
employers in ensuring equal pay for equal work, last year alone, the
EEOC conducted educational and outreach events on equal pay issues that
reached nearly 40,000 attendees across the country. Still today, when
women become pregnant, they continue to face harassment, demotions,
decreased hours, forced leave, and even job loss. In fact,
approximately 70 percent of the thousands of pregnancy discrimination
charges EEOC receives each year allege women were fired as a result of
their pregnancy.
national strategic priorities and commission oversight
As we serve the American public and enforce our civil rights laws,
EEOC is committed to operating as effectively and strategically as
possible. To that end, in February 2012, the Commission approved a
strategic plan for fiscal years 2012-16, designed to coordinate the
EEOC's programs to create sustainable reductions in discriminatory
workplace practices. In December 2012, the Commission adopted a
strategic enforcement plan, which established the following six
national 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.
Across the agency, we are deploying our resources more
strategically to achieve broad and sustained compliance with our anti-
discrimination laws. We are further integrating all segments of agency
operations and emphasizing effectiveness, efficiency and consistency.
We are instituting improved channels of communication across the agency
for greater coordination and consistency in private, public, and
Federal sector enforcement.
Throughout EEOC's history, the agency's success has hinged on
carefully balancing national priorities, coordination, and oversight
with local awareness, responsiveness, and discretion. With the goal of
increasing the efficiency and effectiveness of its enforcement
programs, a unanimous Commission delegated litigation authority to the
General Counsel in the 1996 National Enforcement Plan. This action
freed the Commission to focus on broad policy issues. In the 2012
Strategic Enforcement Plan, on a bi-partisan basis, the Commission
reaffirmed that delegation of authority and established quarterly
reports and meetings to continually assess the success of delegated
authority.
Currently, the Commission must approve decisions to commence or
intervene in litigation in significant cases that: (1) require a major
expenditure of resources; (2) address a developing area of law; or (3)
raise issues of public controversy. In addition, the Commission must
review and approve all recommendations for EEOC to participate as
amicus curiae. The 2012 Strategic Enforcement Plan also directs that a
minimum of one litigation recommendation from each EEOC District Office
must be presented for Commission consideration each fiscal year,
including litigation recommendations based on the above criteria.
identifying collaborative solutions to strengthen america's workplaces
For EEOC, this 50th anniversary year offers a vital opportunity to
engage all who share the goal of promoting equal employment opportunity
in a broader effort to build stronger workplaces that fully utilize the
talents and potential of all workers. EEOC is actively partnering with
employers and employees alike to identify strategies for widening the
doors to equal opportunity for all in the workplace.
We have redoubled our efforts to develop solutions to our most
complex problems. With 30 percent of the charges filed in a fiscal year
alleging workplace harassment, combating harassment is a high priority.
Race is cited most frequently as the basis for harassment allegations
followed by disability and gender. In January, the Commission convened
a public meeting to hear from experts on preventing and addressing
workplace harassment. To develop a comprehensive strategy to address
this issue, I asked EEOC Commissioners Victoria A. Lipnic and Chai R.
Feldblum to co-chair a Select Task Force on the Study of Harassment in
the Workplace. They have invited employers, workers' advocates,
academics, and others experienced with harassment issues and will be
holding public meetings to identify underlying problems leading to
harassment claims and effective strategies for preventing and remedying
workplace harassment.
The agency continues to explore solutions to address and overcome
entrenched workplace barriers based on race and ethnicity. Last month,
the EEOC convened a Commission meeting in Miami, FL, entitled ``EEOC at
50: Confronting Racial and Ethnic Discrimination in the 21st Century
Workplace.'' A broad range of national and local stakeholders shared
their perspectives on ongoing challenges and promising solutions.
Witnesses emphasized that despite significant progress in the past 50
years, discrimination against racial and ethnic minorities remains a
too-frequent reality in 21st century America. Other witnesses described
today's new barriers to employment and encouraged the EEOC to address
those barriers through creative partnerships with employers.
Next month, the Commission will host a public Commission meeting on
retaliation in the workplace. Retaliation remains the most frequently
alleged basis of discrimination under all the statutes we enforce,
comprising 42.8 percent of all charges filed with the agency in fiscal
year 2014. The Commission meeting will address the root causes of
retaliation in the workplace and explore strategies for prevention to
ensure that individuals are not chilled from reporting violations of
the law. As necessary, the agency will continue to challenge
retaliatory practices. The agency did so effectively, just last month,
when the U.S. Court of Appeals for the Sixth Circuit upheld a jury
verdict in EEOC v. New Breed Logistics, finding the employer liable for
a supervisor's sexual harassment of three female employees and
retaliation against them by firing them shortly after they complained
about the harassment, and retaliation against a male employee who
supported the women's claims. In its ruling, the court provided
important clarification on the scope of retaliation protected under
title VII when it found that an employee's oral complaints to a
supervisor to cease harassing conduct constitute protected activity.
In addition, as the Nation's largest employer, the Federal
Government continues to strive to be a model employer. The EEOC
strategically partners with other Federal agencies to promote workplace
policies and practices that remove barriers to equal employment
opportunity and foster an inclusive work environment. I am pleased to
serve on the Steering Committee for the newly created government-wide
Diversity and Inclusion Council. Along with the Office of Personnel
Management, the Department of Labor, the Office of Management and
Budget, and the White House, this effort promotes collaboration among
Federal agencies to develop approaches that achieve model EEO programs
and broad inclusion throughout the Federal Government.
providing guidance to promote compliance
One of the most crucial tools at the Commission's disposal is
providing guidance to help employers and employees, alike, better
understand and comply with our anti-discrimination laws.
Notice of Proposed Rulemaking on Wellness Programs
On April 20, 2015, EEOC published in the Federal Register a Notice
of Proposed Rulemaking (NPRM) that addresses the ADA's application to
employer wellness programs. As part of this process, we coordinated
with the Federal agencies that have responsibility for enforcing and
implementing the provisions of HIPAA and the ACA related to wellness
programs, including the Departments of Labor, Health and Human
Services, and Treasury. The public comment period on the NPRM closes on
June 19th, and the Commission looks forward to reviewing these comments
as it shapes the final regulation.
The Commission understands the critical need for EEOC guidance
concerning employer wellness programs and the interaction of the ADA
with the Health Insurance Portability and Accountability Act (HIPAA)
and the Affordable Care Act (ACA). We recognize that many employers
wish to implement wellness programs in an effort to improve their
employees' health and reduce health care costs. We are also mindful
that wellness programs must adhere to the ADA's requirement that
disability-related inquiries (such as questions on a health risk
assessment) or medical examinations (such as blood tests for
cholesterol levels) that are part of employee health programs must be
``voluntary.''
In addition, we anticipate that in the near future, the Commission
will also issue amendments to EEOC's regulations implementing Title II
of GINA to address employer wellness programs. Our goal is to propose
rules that harmonize ADA and GINA requirements with HIPAA and the ACA,
as well as to provide certainty to employers about their obligations.
Guidance on Pregnancy Discrimination
In July 2014, the Commission issued a comprehensive update to the
agency's pregnancy guidance that covers a range of issues, including
the Pregnancy Discrimination Act's (PDA) application to current, past,
and potential pregnancy; the application of the PDA to nursing mothers;
the prohibition of forced leave policies; and the application of the
ADA to pregnancy-related impairments. This was the first update of our
pregnancy guidance in over 30 years. The Commission initiated the
process of updating the guidance with a Commission meeting in 2012
focused on pregnancy discrimination. Stakeholders at the meeting urged
the Commission to update its guidance to reflect developments in the
law, including the passage of the ADA Amendments Act in 2008, which
expanded protections for those with temporary impairments.
The Supreme Court's recent decision in Young v. UPS addresses the
PDA and recognizes that the ADA, as amended, provides important
protections for employees with pregnancy-related conditions. As a
result of this decision, many pregnant women who were previously denied
accommodations will now be entitled to receive them. The Commission
will be updating its guidance on pregnancy accommodation issues in
accordance with the Court's decision.
Guidance on Consideration of Arrest and Conviction Records in
Employment Decisions
The EEOC's Enforcement Guidance on the Consideration of Arrest and
Conviction Records in Employment Decisions is another example of
guidance that is promoting compliance. The Commission approved this
updated guidance by a bipartisan vote to clarify how employers can use
background checks as part of their selection process. Consistent with
longstanding court decisions, the guidance provides that when
conducting criminal background checks, employers should not
categorically exclude everyone with a criminal record. Rather, they
should target criminal background screens to reflect the nature of the
crimes, the time elapsed, and the nature of the job and then allow
those who are identified as failing the screen an opportunity to
correct errors in the criminal records and submit supplemental
information for individualized consideration. A Wall Street Journal
article reported that 77.7 million individuals, or nearly one out of
every three American adults, have a file in the FBI's master criminal
data base. See http://www.wsj.com/articles/decadeslong-arrest-wave-
vexes-employers-1418438092 (Dec. 12, 2014). EEOC's guidance seeks to
ensure that individuals have a chance to be considered where they are
qualified to do the job.
An increasing number of businesses have explicitly adopted the
principles laid out in the guidance. According to a 2014 survey by
screening company EmployeeScreenIQ, 88 percent of the nearly 600
respondents said they had adopted the principles contained in EEOC
guidance. Finally, many employers and jurisdictions have adopted what
are known as ``ban-the-box'' policies that delay the consideration of
criminal records until later in the employment process--a policy the
EEOC guidance recommends. Indeed, at least 16 States have approved ban-
the-box legislation, including Vermont (2015), Virginia (2015), Georgia
(2015), Delaware (2014), Nebraska (2014), Illinois (2014 and 2013), New
Jersey (2014), California (2013), Maryland (2013), Minnesota (2013),
Rhode Island (2013), Colorado (2012), Connecticut (2010), Massachusetts
(2010), New Mexico (2010), and Hawaii (1998).
efficient and effective enforcement to promote broad compliance
The EEOC is ensuring efficient and effective enforcement by using
integrated strategies that encourage prompt and voluntary resolution of
charges and improve employment policies and practices so that employers
can prevent discrimination from occurring. The agency is also investing
its resources strategically to address recurring and persistent
problems in the workplace in order to remove barriers to opportunity
and improve working conditions for a significant number of workers.
Voluntary compliance remains the preferred means of preventing and
remedying employment discrimination. Our mediation, settlement and
conciliation efforts serve as prime examples of our investment in
strategies to resolve workplace disputes early, efficiently, and with
lasting impact. In fiscal year 2014, these informal settlement methods
secured more than $296 million in benefits for individuals, without
resort to litigation. EEOC's private sector national mediation program
serves an integral role in the agency's work. Mediation is a voluntary
process where a neutral mediator assists the employer and employee in
reaching an early and confidential resolution of the employment dispute
raised in a charge of discrimination. This program has consistently
achieved outstanding results for participants. In fiscal year 2014,
EEOC's mediation program successfully helped employers and employees
voluntarily resolve 7,846 (77 percent) of the 10,221 mediations it
conducted. Through these mediations, EEOC obtained $144.6 million in
relief for individuals. Moreover, participants nearly uniformly view
the mediation program favorably, with over 96 percent reporting
confidence in the program this past year.
EEOC's conciliation efforts are another vital means to promote
voluntary compliance. Conciliation efforts occur after the agency has
completed its investigation of a charge and notified the parties of its
determination of reasonable cause to believe that discrimination has
occurred. Conciliation is an informal method of resolving a charge of
discrimination where the agency endeavors to eliminate unlawful
employment practices by working with an employer to reach a mutually
satisfactory resolution before any litigation is filed. EEOC's record
demonstrates its commitment to, and success in, resolving charges
through conciliation. Over the past 3 years, EEOC has worked with
employers to conciliate and voluntarily resolve a greater percentage of
cases than at any time in recent history--with successful conciliations
rising from 27 percent in fiscal year 2010 to 38 percent in fiscal year
2014. The success rate for conciliation of systemic charges is even
higher--at 47 percent, which is particularly significant as these
charges are more complex and have the potential to improve practices
for a significant number of workers.
The Supreme Court's decision in Mach Mining LLC v. EEOC_U.S._, 2015
WL 1913911 (2015), provides needed clarity across the courts concerning
standards for judicial review of EEOC's conciliation efforts. The
standard set forth by the Supreme Court will effectuate the purpose of
conciliation, by encouraging all parties to focus on informally
resolving the charge. The Commission takes its obligation to conciliate
seriously, and we will ensure that additional guidance and training for
EEOC staff further advances the agency's effectiveness in our
conciliation efforts. The Court's decision will promote a more
efficient use of agency, employer, and judicial resources by ensuring
the focus of the case is on resolving the merits of the claims of
discrimination.
EEOC has a strong incentive to successfully resolve charges through
conciliation. Successful conciliations ensure that unlawful employment
practices are remedied more quickly, thus conserving agency resources.
These conciliation agreements can also help to improve workplace
policies and prevent discrimination from occurring in the first
instance. Indeed, employers agreed to include changes to workplace
policies in nearly 850 conciliation agreements over the last 3 years.
Through its administrative and legal resolutions, the agency has
increased the percentage of agreements with targeted equitable relief
to improve workplace practices from 64 percent in fiscal year 2013 to
73 percent in fiscal year 2014. This is especially significant, as it
surpassed the goals set out in EEOC's Strategic Plan for targeted
equitable relief for fiscal year 2014 (63-67 percent), fiscal year 2015
(64-68 percent), and fiscal year 2016 (65-70 percent). Indeed, EEOC has
worked with employers to secure policy changes in 1,724 agreements
through all administrative resolutions, including mediations,
conciliations, and settlements, and has obtained nonmonetary benefits
for nearly 92,000 workers in cases over the past 3 years. Examples of
these changes include adoption of anti-harassment policies, objective
promotion policies, and reasonable accommodation policies--policies
that will help prevent discrimination from recurring.
Systemic investigations and cases--those where the practice or
policy has a broad effect on an industry, occupation, or geographic
area--are another critical strategy for leveraging the EEOC's resources
to most effectively promote compliance and remedy discrimination. In
2005, EEOC established a Systemic Task Force under the leadership of
former Commissioner Leslie E. Silverman. Former Chair Cari M. Dominguez
charged the Task Force with responsibility for examining the
Commission's systemic program and recommending new strategies for
combating systemic discrimination. In 2006, a unanimous Commission
adopted the recommendations of the Systemic Task Force and established
a nationwide systemic program as a top priority of the Commission.
In 2012, the Commission reaffirmed the importance of systemic
enforcement in its Strategic Plan and Strategic Enforcement Plan. The
Commission has worked to create a structure and strategy to coordinate
systemic cases across the country, provide increased headquarters
support for the systemic work of the field offices, enhance systemic
skills, and provide technology to support the development of systemic
cases. We have hired social scientists and labor economists who are
located in EEOC's field offices to directly support systemic
investigations and analyze workforce data and employment practices.
Through these actions and others, EEOC is strengthening its systemic
infrastructure to enhance the agency's ability to identify and remedy
persistent patterns of discrimination across the workforce.
As a result of these efforts, at the end of fiscal year 2014, 57
out of 228, or 25 percent of the cases on EEOC's litigation docket were
systemic. This is the largest proportion of systemic lawsuits on EEOC's
docket since tracking began in fiscal year 2016. In fiscal year 2014,
the agency continued to achieve a high level of results in its systemic
investigations and secured $13 million in monetary relief. Also, in
2014, EEOC's success rate for conciliation of systemic charges of
discrimination was 47 percent. Examples of systemic matters
successfully resolved in fiscal year 2014 prior to litigation include:
The EEOC reached a negotiated settlement agreement with a
company to pay $650,000 to African-American and Hispanic individuals
the company is alleged to have failed to hire because of their race or
national origin. The company also agreed to hire additional workers,
bringing the combined value of this relief to over $4.6 million;
After finding reasonable cause to believe that a company
had a practice of not hiring women for driving positions because of
their sex, the EEOC reached a successful conciliation agreement with
the employer. The company agreed to pay $530,000 to women who EEOC
alleged were denied hire and also to provide significant targeted
equitable relief including the adoption of an effective EEO policy
prohibiting discrimination based on sex. The agreement also calls for
anti-discrimination training for all human resources employees focused
on preventing sex discrimination.
The EEOC successfully conciliated four systemic ADEA
investigations alleging that the employers stopped allowing volunteer
firefighters to accrue points for performing certain duties when they
reached age 55 or 60. Total monetary benefits of over $1.4 million were
agreed to for these firefighters through the conciliation agreements.
The employers also changed their policies to bring them into compliance
with the ADEA.
When the EEOC makes a finding that there is reasonable cause to
believe that the company has engaged in a pattern or practice of
systemic discrimination and efforts to secure voluntary compliance are
not successful, the agency may choose to file suit to enforce the law.
In fiscal year 2014, the Commission filed 17 systemic lawsuits. These
suits challenge a range of alleged systemic barriers, including:
Refusing to place African-American applicants into front-
of the-house restaurant positions;
Refusing to hire applicants over age 40 for front-of-the-
house restaurant positions;
Inflexible leave and fitness for duty policies that deny
reasonable accommodations to employees with disabilities; and
Widespread harassment based on race, sex and national
origin.
Our General Counsel, P. David Lopez will discuss our litigation
program in greater detail during his testimony. Briefly, I would like
to highlight that when the Commission files suit, our litigation
program has been highly successful. EEOC favorably resolved 93 percent
of the cases resolved last fiscal year. As a Federal agency, we hold
ourselves to a high standard. We carefully select the cases that we
decide to litigate, and we strive to ensure all our work is pursued
with excellence. Where we receive adverse decisions, we communicate
lessons learned from significant cases across the agency to ensure that
we continually improve our effectiveness and our service to the public.
investing in our infrastructure to better serve the public
One of the agency's greatest responsibilities is to provide timely
and responsive service to both employees and employers involved in
discrimination disputes. Through investments in staffing, training, and
technology we are improving the quality of our customer service.
The EEOC continually strives to ensure that employees and employers
resolve discrimination charges as promptly as possible. To do so, the
agency must have the staff and resources to deliver a high level of
service. Increases in the EEOC's budget in fiscal year 2009 and fiscal
year 2010 enabled the agency to hire 164 new investigators and
mediators. Together with the training of these new staff and diligent
charge management, these efforts generated nearly a 20 percent
reduction in the charge workload in fiscal year 2011 and fiscal year
2012--the first decreases in nearly 10 years.
These gains could not be sustained in fiscal year 2013 due in part
to attrition of front-line staff coupled with a hiring freeze and the
effects of governmental sequestration when the EEOC had to furlough its
entire workforce for 5 days. The government shutdown in the first
quarter of fiscal year 2014 also slowed the replacement of departing
staff.
The fiscal year 2014 appropriations, which included a $20 million
increase for EEOC from the sequestration-impacted level fiscal year
2013 budget, allowed the agency to launch a critical mid-year hiring
effort in order to rebuild our workforce, particularly those who
provide direct services to the public in the 53 field offices and who
investigate, mediate, conciliate, and litigate pending discrimination
claims. During the third and fourth quarters of fiscal year 2014, EEOC
hired approximately 116 investigators and 12 mediators, helping to
restore much-needed capacity to the front-line staffing levels and
rebuild the enforcement capability of the field offices. As these new
hires are trained and come on board, we expect to see the benefits of
this hiring beginning in the third quarter of fiscal year 2015. In
addition, we are working to increase the speed in which we hire front-
line staff this year and have approved 105 replacement hires since the
beginning of the year. Our office of the Chief Human Capital Officer is
working with hiring managers to make full use of the hiring authorities
and flexibilities available to streamline recruitment and selection
procedures. We are also devoting additional resources to enable
expedited job postings and applicant screenings.
In addition to hiring in fiscal year 2015 and fiscal year 2016, we
will continue our focus on identifying creative approaches to
addressing the pending workload and utilizing priority charge handling
procedures to produce further reductions in the timeframe for
completing investigations of charges. In doing so, we will balance our
efforts to address the pending workload while maintaining the highest
levels of quality in our investigations and conciliations.
EEOC is also investing in systems to better serve the public, by
using technology to increase responsiveness to employees and employers
and to streamline and automate services to the public. For our private
sector enforcement program, EEOC is developing systems that will allow
charging parties and employers to check the status of their charge
online, to transform the current paper system into a digital charge
system, and to provide individuals with online-scheduling options for
intake appointments. Earlier this month, we announced that 11 of our
offices will begin a pilot program called ACT Digital to digitally
transmit documents between the EEOC and employers regarding
discrimination charges. This pilot program is an important first step
in the EEOC's move toward an online charge system that will streamline
the submission of documents and communications for employees and
employers. These efforts will improve our responsiveness to the public
and efficiently utilize our resources by allowing investigators to
spend more time investigating and resolving charges.
In fiscal year 2013, EEOC deployed a Federal Sector equal
employment opportunity portal to all Federal agencies, to provide
electronic submission and collection of Federal Agency Program
Reporting workforce data. In fiscal year 2015, EEOC will integrate the
Federal Sector hearings and appeals data into the Federal portal, which
will be combined with complaint data, workforce data, and barrier
analysis to build a more complete picture of how agencies are
progressing in the development of model EEO programs. These efforts
will enable us to provide additional education and guidance focused on
pressing issues to assist Federal agencies in implementing preventive
measures to address workplace conflict. The end result of these efforts
will be better customer service and a strengthened and more efficient
agency.
moving forward
The Commission is working hard every day to fulfill the promise of
equal employment opportunity. EEOC requested a budget of $373.1 million
for fiscal year 2016, an increase of $8.6 million above the fiscal year
2015 enacted level of $364.5 million. The majority of this requested
increase--$6.2 million is necessary to maintain our current staffing
levels, and the remaining $2.4 million would allow investments in
needed technology and fund increased rent and office relocations. These
resources will allow EEOC to continue restoring our capacity in mission
critical areas, repairing the adverse effects of recent budget cuts,
addressing workload concerns, and continuing to implement our Strategic
Plan to better serve the public.
Our commitment to fostering a more level playing field in the
workplace is unwavering; yet, we know that we cannot do this alone. We
are building active, engaged partnerships with employers and employees
as well as across the Federal Government to develop creative solutions
to the workplace challenges facing many employers and employees today.
I appreciate the opportunity to share with the committee the efforts
and vision of the EEOC. I look forward to working with you to make this
vision a reality, and I thank you again for your continued support.
I look forward to responding to any questions or comments you may
have.
The Chairman. Thank you, Ms. Yang.
Mr. Lopez.
STATEMENT OF P. DAVID LOPEZ, GENERAL COUNSEL, EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, ARLINGTON, VA
Mr. Lopez. Good afternoon, Chairman Alexander, Ranking
Member Murray, members of the committee. Thank you for inviting
me and Chair Yang to testify today.
As General Counsel of the EEOC, I am in charge of the
Commission's litigation program, overseeing the Commission's 15
regional attorneys and 325 outstanding staff members who
conduct or support Commission litigation throughout the Nation
and are motivated by the highest ideals of public service. This
year, we celebrate the 50th anniversary of the EEOC, which was
created by the landmark Civil Rights Act of 1964.
The Civil Rights Act, which grew out of the freedom
struggle aimed at throwing off an odious racial caste system,
has inspired each generation of Americans to expand opportunity
for women, religious minorities, older workers, individuals
with disabilities, and the LGBT community. This anniversary is
an opportunity to reflect on how the statutes we enforce have
transformed this Nation by enabling countless individuals to
unleash their individual potential and productivity.
So where are we today? As the agency's chief prosecutor, I
believe there is bad news and good news. The bad news is that
discrimination remains a problem in this country.
For example, in a recent case from North Carolina, two
African-American truck drivers were repeatedly subjected to
derogatory slurs, including the ``N'' word, nooses, and threats
of lynching. However, the good news is that it took a Winston-
Salem jury less than an hour to come back and find the employer
liable. The court issued broad injunctive relief, and the
appellate court affirmed.
Plainly, there is work to do. The EEOC's goal to eradicate
discrimination appropriately begins with prevention. The EEOC
issues policy guidance to convey the agency's views to the
public of the statutes it enforces and devotes enormous
attention and resources to public outreach and education.
When, following investigation of a charge, we find
discrimination, we try to resolve it informally. When informal
resolution is not possible, the statute gives us authority to
file suit in Federal court.
Most of our cases settle. That is a good outcome, because
it means that the employer is willing to come to the table and
work to remedy the violation. Last year, our office was able to
favorably resolve 93 percent of the cases. When we have had to
go to trial, I am pleased to say that we have won two-thirds of
our jury trials from fiscal year 2013 to the present. This
public record shows a successful program in ensuring fairness
for victims of unlawful discrimination and deterring future
misconduct.
My written testimony sets forth many examples of our
litigation efforts. We have successfully prosecuted cases
involving employers who have failed to hire any women in
certain positions in the 21st century, who admit to firing a
woman because she is pregnant, who have impeded economic
independence for workers with disabilities.
We have also successfully litigated cases challenging age
and religious discrimination. As you know, the Supreme Court
recently heard our religious discrimination case against
Abercrombie and Fitch, a case defending the quintessentially
American principles of religious freedom and tolerance. Such a
broad range of religious and other organizations filed amicus
briefs in support of the EEOC's position that one article
commented that we had united the world's religions.
We, however, do not win all of our cases. I understand your
concern about some high profile losses and fee awards against
the Commission. Here is what we have done. Where we are not
successful, I have stressed a culture of examining lessons
learned in order to carry out our public law enforcement
mission more effectively.
This means my personal review of these cases; discussions
with the attorneys involved; immediate adjustment of any
internal practices, if appropriate, to ensure we don't repeat
our mistakes, as well as to ensure we have fresh perspectives
on these very complex cases; and a review of the issues with
management, as well as in training programs.
To close, despite these setbacks, we make a positive
difference in the quality of opportunity for working families.
At a recent Commission meeting, we highlighted the resolution
of a race and national origin harassment case filed against an
oil well service business in Wyoming. A charging party from
this case recounted how he was shocked that his supervisor
called him and other Latino employees dumb Mexicans, worthless
Mexicans. As is almost always the case, our resolution included
significant non-monetary relief.
Our courageous charging party was grateful, testifying,
``Now that it's all over, I am proud that we stood up
for ourselves, and I'm glad the EEOC was able to help
get things like training and surveys as part of the
settlement. All I ever wanted was to change how people
were being treated, and, hopefully, I helped to do
that.''
Thank you for your attention, and I'm pleased to answer any
questions.
[The prepared statement of Mr. Lopez follows:]
Prepared Statement of P. David Lopez
Good afternoon, Chairman Alexander, Ranking Member Murray, members
of the committee. Thank you for inviting me to testify today. I am
pleased to be here with my colleague, Chair Jenny Yang.
My name is David Lopez and I am the General Counsel of the U.S.
Equal Employment Opportunity Commission (EEOC). Congress in 1972 gave
EEOC litigation authority to ``ensure more effective enforcement of
title VII,'' General Telephone Company of the Northwest v. EEOC, 446
U.S. 318, 325 (1980). As General Counsel, I am in charge of the
Commission's litigation program, overseeing the Agency's 15 Regional
Attorneys and a staff of more than 325 lawyers and legal professionals
who conduct or support Commission litigation in district and appellate
courts throughout the Nation.
When President Obama first nominated me in 2009 to be the EEOC's
General Counsel, I had served as an attorney and civil servant under
both Republican and Democratic administrations. Throughout my tenure I
have observed firsthand that civil rights are not a partisan issue, but
an American promise. Last year, we celebrated the 50th anniversary of
the Civil Rights Act of 1964--one of the most transformative pieces of
legislation in the country's history. Along with subsequent legislation
targeting discrimination based on other traits such as age and
disability, it has enabled countless individuals to unleash their
potential and productivity, which in turn drives our Nation's economic
engine. This year, we celebrate the 50th Anniversary of the EEOC, an
agency created by the 1964 Act.
As we all know, the Civil Rights Act grew out of the freedom
struggle aimed at throwing off an odious racial caste system. This
struggle triggered an enduring conversation in our country about the
meaning of freedom and our understanding of opportunity. Title VII
included protections against race discrimination along with protections
against discrimination on the basis of sex, national origin, religion,
and color. Each generation has advanced this discussion, and the
freedom struggle, illustrated by the children's crusade in Birmingham,
has inspired each generation to expand opportunity for women, religious
minorities, older workers, individuals with disabilities and, in this
moment, the LGBT community. Even though we may disagree on the
specifics or the finer points of law, as I travel the country I have no
doubt that there is a broad national consensus for the value of equal
opportunity and its vital importance to individual productivity and
potential.
I am proud to have devoted most of my career to this agency,
created 50 years ago to further these values, and to have worked with
many dedicated colleagues who believe in the value of public service to
their country and communities and who doubtless could pursue more
lucrative career options. This includes Robert Canino, the regional
attorney in Dallas, who won a $240 million verdict on behalf of 32
workers with intellectual disabilities. These workers had been brought
to Iowa to work at a turkey evisceration plant. During their
employment, they were housed in an old schoolhouse where they were
deprived of access to medical care, and subjected to verbal and
sometimes physical abuse. In a top of the fold article in the New York
Times, Robert was deemed the men's ``last, best hope for justice.'' In
my mind, this description speaks for the large majority of my EEOC
colleagues.
Indeed, the EEOC is a small agency with a big mission--to stop and
remedy unlawful employment discrimination. To that end, the Agency has
carried out its mission consistently and dutifully, decade after decade
and we can see its impact in every corner of American society.
The EEOC's goal to prevent, stop, and remedy discrimination begins
with prevention. The Commission issues policy guidance designed to
explain employer responsibilities and employee rights under the laws we
enforce and devotes enormous attention and resources to public outreach
and education across the country. As Chair Yang mentioned, we receive
and investigate nearly 100,000 private-sector charges per year and
resolve the vast majority of them informally, in mediation or
conciliation. Before we litigate, we look at the conciliation efforts
to ensure that informal resolution was not possible. When these tools
do not work, the statute authorizes the Commission to file suit to
enforce the Nation's employment anti-discrimination laws in Federal
court.
fifty years after civil rights act: where are we?
Where are we? From my vantage point as the EEOC's chief prosecutor,
this is an important question. Given the origins of the Act and recent
events in our Nation, there is bad news and good news. The bad news is
that discrimination is still a real problem in this country. For
example, we recently had a case in North Carolina involving racial
harassment. Two African-American truck drivers were repeatedly
subjected to derogatory racial comments and slurs that included the
``N'' word and the displaying of a noose. The fact that this is still
happening in the 21st century underscores that there is more work to be
done to eradicate race discrimination in the workplace. However, I
would note that the good news is that it took the jury in Winston-
Salem, NC less than an hour to find the employer liable and assess
damages, and the Fourth Circuit less than a month to affirm the
decision and the district court's order of broad injunctive relief to
make sure the conduct did not recur.
Similarly, we settled two major systemic race discrimination cases
for eight figure monetary settlements and broad non-monetary relief.
The first case, EEOC, et al. v. Local 28 of the Sheet Metal Workers'
Int'l Ass'n, et al., was filed nearly 40 years ago by the Department of
Justice against Local 28 of the Sheet Metal Workers' International
Association, and the EEOC's New York District Office took the case over
when litigation authority was transferred to the EEOC in 1972. In this
case, the union has agreed to pay $12.7 million over 5 years in
settlement of allegations of discrimination against black and Hispanic
journey persons on the basis of race.
The second case, EEOC v. Patterson-UTI Drilling Company, LLC, is a
nationwide race and national origin discrimination case filed against a
drilling company that alleged race and national origin discrimination,
harassment and retaliation. We were able to settle this case early
without the need for discovery or lengthy proceedings. The employer
agreed to a multi-million dollar settlement fund for a class of victims
of the discrimination and strong injunctive relief provisions that will
foster a work environment that is free from discrimination. These are
major successes for the systemic litigation program.
broad-based support to combat continuing discrimination
From what I hear from the public as I travel across the country,
while we have had significant successes, there is more work to do.
Sex discrimination remains a problem. There are some employers, 50
years after the passage of the Civil Rights Act, who have hired few, if
any women, in certain positions. For example, not too long ago, we
secured a victory in a systemic pattern or practice case involving a
trucking company in Missouri that had a policy of assigning trainees
based on sex. The court ruled, as a matter of law, that this
constituted a pattern or practice violation of title VII's prohibition
against sex discrimination. There are numerous other case examples of
the good work we have done in this area.
Unfortunately, one of the most overt forms of discrimination we
continue to see is pregnancy discrimination. I hear ongoing frustration
from women and their families across the country that some employers
still don't understand this is discrimination like any other form of
discrimination. I am pleased to report, however, we have had many
successes in this area. (see Pregnancy Litigation Fact Sheet). One
example of our success is Young v. UPS, the pregnancy discrimination
case recently decided by the Supreme Court addressing the circumstances
when an employer has an obligation to provide leave under the Pregnancy
Discrimination Act. The Commission joined the government's brief in
support of Ms. Young, and Ms. Young was also supported by organizations
from across the political spectrum.
We have been very successful in litigating cases on behalf of
individuals with disabilities. For example, recently we prevailed at a
trial in Miami in a case involving a licensed security guard with only
one arm who was removed from his post because a customer complained
about his disability.
We have also vigorously litigated cases based on religious
discrimination. The Supreme Court recently heard our case against
Abercrombie and Fitch. In this case, the Court examined title VII's
requirement that companies reasonably accommodate workers' religious
beliefs and practices. This case involves Samantha Elauf, a 17-year-old
Muslim woman born and raised in Tulsa, OK whom we allege was denied
hire by the company because she wore a hijab in observance of her
religion. A broad range of religious groups filed amicus briefs in
support of the EEOC's position and the principle of religious freedom,
including the Beckett Fund, Orthodox Jewish groups, Seventh Day
Adventists groups, and Islamic groups. Other groups supported the
EEOC's position as well, including Lambda Legal Defense and Education
Fund.
This case illustrates the EEOC's commitment to protecting the
religious exercise of all Americans and underscores the singular
important role that the EEOC's litigation can play in helping to
clarify the law, and thus, in ultimately bringing greater certainty
about legal obligations and rights for employers and employees alike.
Regardless of the outcome, the fact that the EEOC was there to take
this young woman's religious discrimination claim all the way to the
Supreme Court of the United States in that Romanesque building around
the corner with the words ``Equal Justice Under Law'' over the entrance
should make us all proud.
We are also working to end workplace discrimination in other areas,
such as discrimination against transgender individuals and the
discrimination that continues against immigrant and vulnerable workers
who work on the margins and are often most susceptible to abuse and
exploitation.
Indeed, we have enjoyed numerous litigation successes that include:
EEOC v. Presrite (N.D. Ohio 2013) ($700,000 settlement, plus priority
consideration to at least 40 female job applicants as well as new
measures designed to prevent future discrimination); EEOC v. Interstate
Distributor (D. Colo. 2012) ($4.85 million settlement, along with
revised ADA policy), EEOC v. Yellow/YRC (N.D. Ill. 2012) ($11 million
settlement in title VII race harassment case); EEOC v. Pitre (D. N.M.
2012) ($2 million settlement, plus new policies and practices to
provide a work environment free of sexual harassment and retaliation,
evaluation of managers on compliance with anti-discrimination laws, and
a compliance monitor); EEOC v. Verizon (D. MD. 2011) ($20 million
settlement, representing EEOC's largest ADA settlement, plus
requirement for revised attendance plans, policies and ADA policy to
include reasonable accommodations); EEOC v. ABM (E.D. Cal. 2010) ($5.8
million settlement, along with outside EEO monitor, training for
investigators of harassment complaints, tracking future discrimination
complaints, employee training in English and Spanish, internal
compliance audits, and periodic annual reports to the EEOC); and EEOC
v. Republic Services (D. Nev. 2010) ($3 million settlement, plus hiring
of EEO compliance officer, internal audit policies and procedures,
training and reports to EEOC, tracking of future discrimination
complaints).
Most of our cases settle--and that is a good outcome because it
means that the employer was willing to come to the table and work with
us on an appropriate remedy. In the event that a case is not settled,
however, the Commission has had an enormously successful trial program.
We have won 16 of our last 24 jury trials from fiscal year 2013 to the
present. These trial victories include not only the Henry's Turkey case
that I previously mentioned, but also cases involving the denial of
promotion based on sex, disability discrimination, age discrimination,
racial harassment, sexual harassment, and retaliation. The law
enforcement and public education value of these cases in underscoring
our government's commitment to eliminating illegal workplace
discrimination in local communities and across the Nation cannot be
underestimated.
We also have obtained landmark victories in the appellate courts.
For example, in EEOC v. Houston Funding, a panel of the Fifth Circuit
issued a landmark--but common-sense--ruling recognizing that
discrimination against a woman because she is lactating is
discrimination ``because of sex'' in violation of Title VII and the
Pregnancy Discrimination Act. This case is one success among many in
the courts of appeals, which also include such recent cases as EEOC v.
Baltimore County, 747 F.3d 267 (4th Cir. 2014) (agreeing with EEOC's
contention that pension system treated older new-hires less favorably
because of their age by requiring them to make larger contributions
than younger new-hires); EEOC v. United Airlines, 693 F.3d 760 (7th
Cir. 2012) (transfer accommodation of qualified individuals is
mandatory absent undue hardship), cert petition denied; EEOC v. Cintas
Corp., 699 F.3d 884 (6th Cir. 2012) (pattern-or-practice hiring claim
may be pursued under section 706), cert petition denied.
Last year, the Office of General Counsel was able to favorably
resolve 93 percent of its cases. By any measure, this is outstanding. I
believe we can learn from all of our cases--both the wins and the
losses--and have stressed extensively during my tenure a culture of
examining ``lessons learned'' in order to carry out our law enforcement
mission more effectively and efficiently. This includes a personal
review of cases where we have been subject to fees; discussions with
the attorneys involved; a discussion of the cases during our regular
regional attorney calls, including lessons for the program; an
immediate adjustment of any internal practices, if appropriate, to
ensure we improve our law enforcement performance and don't repeat our
mistakes; and a broader discussion of the issues in formal training
sessions. And, of course, significant adverse decisions are circulated
to all attorneys.
litigation as a tool of last resort
While it's my job as General Counsel to be the Agency's chief
litigator, let me be clear: I believe litigation should be the
enforcement tool of last resort. I do not believe in suing first, and
asking questions later--and our statutory authority does not
contemplate or permit this. In fiscal year 2014, for instance, we
litigated on the merits only .15 percent of all charges filed. That is
about one-and-a-half lawsuits for every 1,000 charges filed. During my
tenure as GC, I have focused on developing and filing critical cases,
particularly those that further the public interest. We carefully and
deliberately vet our potential litigation vehicles to ensure effective
enforcement nationwide and across the statutes. And we seek approval
from the Agency's Commissioners--by law, a bipartisan group--consistent
with the guidelines the Commission itself has adopted to govern the
delegation of litigation authority.
As General Counsel, I, along with those under my direction,
actively and enthusiastically support the Agency's non-litigation
enforcement efforts. Voluntary compliance is an important component of
those efforts and I have proudly defended our agency's record on this
front. Indeed, on April 29, 2015, in Mach Mining v. EEOC, the Supreme
Court held in a unanimous opinion that ``a court may review whether the
EEOC satisfied its statutory obligation to attempt conciliation before
suit[, but] the scope of that review is narrow.'' In particular,
judicial review is limited to whether the EEOC has ``inform[ed] the
employer about the specific allegation'' and whether the EEOC has
``tr[ied] to engage the employer in some form of discussion.'' In
issuing its decision, the court noted that title VII is about
substantive outcomes. The Supreme Court's decision ends confusion in
the lower courts about the standard of review and is a step forward for
victims of discrimination because we can now focus our attention on the
merits of the discrimination allegations in our litigation and ensuring
workplace fairness.
As I noted at my recent re-confirmation hearing, during my tenure
as General Counsel, I believe we have engaged in unprecedented levels
of outreach to various stakeholder groups across the country, including
to bar and management groups. Indeed, the day following my confirmation
hearing, I addressed and took questions from the U.S. Chamber of
Commerce. While often their positions, such as in Young v. UPS and EEOC
v. Abercrombie and Fitch, express different views than ours, we
appreciate and learn from the dialog we're able to have. Further,
although I believe we have a great story to tell in just about any
area, we always welcome feedback and constructive criticism as an
opportunity to improve our enforcement efforts. This is the only way we
will become stronger and more effective.
efficient use of resources
Last year, I was honored to be named by the National Law Journal as
one of America's 50 Outstanding General Counsels, but that award really
belongs to my dedicated colleagues at the EEOC who inspire me every
day. I have seen up close and personal the unparalleled dedication and
skill of these amazing civil servants. This award reflects the
tremendous work of the program during an extremely challenging period
when we endured a hiring freeze, significant attrition, and furloughs.
Still, despite these particularly difficult times, we were able to
continue to conduct a successful litigation program.
I will share with you how we are working to ensure that we are
putting public resources to good use in the challenging budget climate.
More than 4 years ago, I talked about fostering a ``culture of
collaboration.'' True to my pledge, I have cultivated ``One National
Law Enforcement Agency,'' encouraging our litigators nationwide to
operate more collaboratively and cohesively with each other and our
internal partners. This collaboration is designed to address two
problems often confronted by large, geographically dispersed
organizations: (1) what I call ``the left hand, right hand'' problem,
that is, coordination between the districts, and (2) ``the reinvention
of the wheel'' problem, which is the result of not preserving
institutional knowledge.
I believe we have made great strides toward addressing these
problems. The National Law Enforcement Agency approach is characterized
by sharing ideas, best practices and lessons across districts,
partnering between district offices to build synergy and provide
sufficient human resources to cases, and leveraging technology to help
us share ideas, work smarter and work more efficiently. We aim to
operate as an integrated community. It is this integrated community
approach that furthers the efficient use of resources, allows for
innovation, and has contributed to many of the successes mentioned
above.
closing comments
In our 50th Anniversary year, I am going to close my testimony with
a story illustrating the difference our work makes in the lives of
American families. Recently, the Commission held an educational meeting
to examine the ongoing problem of harassment in the workplace. The
Commission highlighted our recent resolution of a race and national
origin harassment case filed against an oil and gas well service
business in Wyoming. A Charging Party from this case, who appeared as a
witness at the meeting, recounted the following about what he
experienced on the job:
I started working at J&R as a mechanic in November 2007. My
first day on the job the Truck Pusher, who was second in
command in Edgerton, introduced me as ``uncle beaner'' . . . I
was shocked that he would say that to me. Having lived in
Albuquerque, NM for 40 years and Denver, CO for 10 years before
coming to Wyoming, I never experienced anything like that. For
this guy it was like nothing though. I was ``uncle beaner.''
Mike was just ``beaner or half a beaner'' because he is only
half-Hispanic. We were both ``stupid Mexicans'' or ``dumb
Mexicans'' or ``worthless Mexicans.'' Sometimes he would switch
up and call us ``spics'' too. He told me at least once that he
didn't like ``spics'' and that Mexicans were the reason we have
swine flu. . . . He'd also just say stupid stuff like ``hey you
got any pesos.''
We resolved the case for significant monetary relief--but just as
importantly, for injunctive relief, including training and policy
changes. The Charging Party suffered depression, but the experience was
transformative for him and we believe the industry.
He expressed,
``Now that it's all over, I am proud that we stood up for
ourselves, and I'm glad EEOC was able to help get things like
the training and the surveys as part of the settlement. And I
want to thank the Commission for letting me come out here to
Washington to tell my story. It means a lot to me. All I ever
wanted was to change how people were being treated, and
hopefully my coming here will help do that.''
Thank you for your attention and I would be pleased to answer any
questions.
The Chairman. Thank you, Mr. Lopez. Now we'll begin a round
of questions.
Mr. Lopez, I have a Craigslist ad here. It's posted by the
Equal Employment Opportunity Commission in its lawsuit against
Texas Roadhouse. It says,
``If you believe you may have been denied a front of
the house position such as server, hostess, et cetera,
because of your age, or if you have information, please
contact the EEOC.''
Why are you going out looking for plaintiffs and a lawsuit
when you've got charges by 75,000 people filed with your agency
who believe they have been discriminated against and they are
unresolved? Wouldn't it be a better use of your 800
investigators and 400 attorneys to focus on those 75,000 people
instead of running Craigslist ads scouring up plaintiffs?
Mr. Lopez. Let me start out with the Craigslist ad,
Senator. We were in communication with your office, and we've
done our due diligence. It's my understanding that we did not
issue that ad, nor did we contract to have anybody issue that
ad. So that is not our ad.
But as to your question about expanding cases----
The Chairman. Who were you in contact with? This has your
e-mail address on [email protected].
Mr. Lopez. I've been told that the communication was with
another Republican office in the appropriator's office.
The Chairman. What communication--what could you say about
this, since it's your e-mail?
Mr. Lopez. I checked with our office when we had the
inquiry, and that is not an ad that we put out.
The Chairman. Well, what----
Mr. Lopez. It could be an ad that some other person put
out, but that's not an ad that our office put out. That's what
my office tells me.
The Chairman. Is this your e-mail address--
texasroadhouse.law
[email protected]?
Mr. Lopez. I think that is an EEOC address, yes. And that
really goes to the whole----
The Chairman. Well, how often do you use Craigslist to post
searches for plaintiffs so that you can file a lawsuit? Do you
do that in any other case?
Mr. Lopez. As far as I know, we do not use Craigslist. But
I do want to talk a little bit about looking for class members
related to----
The Chairman. No, let me go on to my next question. You're
saying you didn't--this didn't come from the EEOC despite the
fact that----
Mr. Lopez. That's what I've been told by the attorneys on
the case.
The Chairman. If you could produce some evidence of that,
I'd be grateful. Let me go on to another question. I read
several examples of how you've been rebuked by courts in
remarkably strong language for the quality or basic
incompetence of the lawsuits you've been bringing, and you
answered that somewhat.
But take this recent case 2 months ago in Washington State.
A fee award--EEOC demanded $25 million each from two
defendants. The court said you had failed to conduct an
adequate investigation, pursued a frivolous theory, sought
frivolous remedies, disregarded the need to have a factual
basis to assert a plausible basis. Don't you find this whole
series of court rebukes to your attorneys and your lawsuits
embarrassing?
Mr. Lopez. I think that we had discussed that the last time
I was here. With respect to the case----
The Chairman. Well, that's why I'm so surprised that you're
continuing to use--for example, a witness that we talked about
the last time you were here--you used a faulty witness that the
court rebuked you for, and then you continued the case.
Mr. Lopez. Well, let me first address the first case. The
first case--there is a district court opinion. But I would
certainly counsel caution with respect to cases by the district
court.
As you know, the EEOC had been rebuked before in a case
called Cintas and a case called CRST. In the Cintas case, the
fee award was reversed in its entirety. In CRST, which
generated a lot of negative attention for the Commission, the
court also recently vacated the fee award. So the first case
that you mentioned is still in litigation. It's still pending.
The Chairman. But you don't deny that--you just say the
judge was wrong about that?
Mr. Lopez. I mean, it's a case where final judgment hasn't
been issued. So it's still in the process of litigation, and we
have to look at that.
The Chairman. You went to a very good law school. I mean,
if your professor told you things like that, would you just
dismiss it?
Mr. Lopez. Of course not. I'm not dismissing your concerns,
Senator, and I think----
Mr. Chairman. I'm not a professor. I'm talking about the
judge.
Mr. Lopez. As I mentioned in my opening statement, any fee
award is one fee award too many, and it's something that we
take very seriously. With respect to the case you mentioned
about the expert witness, for instance, the EEOC has looked at
the way that it worked with the expert witness, its own
internal protocols in terms of contracting with expert
witnesses and in terms of making sure that we have enough eyes
on the expert witness reports.
But one thing I want to say with respect to the portion of
the concurring opinion that you read, which I think sort of
leaves a misimpression, is that the witness that we used in
that case was used concurrently at the same time as he was in
the other case that you mentioned. So it wasn't like we were
rebuked in one case and we went back and used the witness. Both
those cases were pending at the same time.
The other thing that I think is worth mentioning about that
case is that even though the panel did not accept the
admissibility of our expert testimony, the panel expressly
stated in a footnote that the decision did not go to the merits
of the case. So, basically, that issue in that case was an
evidentiary issue in terms of how we--whether we were able to
establish a prima facie case of disparate impact. The district
court said we did not, and the appellate court affirmed. But
that certainly has generated a lot of attention within the
program in terms of how we work with experts, in terms of how
we do this work.
We don't want--we want to get good enforcement results.
That's why we do this work. So when something like that
happens, it captures our attention, and we look at, I think, as
a culture how we can do things better to make sure that we
don't repeat those results.
The Chairman. Thank you.
Senator Murray.
Senator Murray. Well, thank you for being with us today,
Chair Yang, and welcome back to the committee for your first
appearance as chair. The EEOC's backlog of cases and the amount
of time it takes to resolve complaints are real issues. The
erosion of staff due to budget cuts under sequestration and the
government shutdown did not help the situation. But I wanted to
ask you what does EEOC need to address those problems, and how
can Congress help?
Ms. Yang. Thank you, Senator Murray. You've summarized some
of the challenges we have had very accurately. We have had over
3 years of hiring freezes, which brought us to our lowest
number of investigators in 25 years.
So what we've been doing is rebuilding capacity. The
funding that we received in fiscal year 2014 mid-year allowed
us to launch a mid-year hiring effort. We've brought on over
116 new investigators and a dozen mediators. We want to
continue that hiring, because that is one of our most effective
ways to ensure we are timely investigating charges.
I share your concern that justice delayed is justice
denied, and it benefits all parties, the employer, the
employee, and our agency, to ensure we are acting quickly. So,
in addition, we are working on effective case management
systems. We just launched a digital charge system. We piloted
it in 11 offices, and we're getting good feedback from
employers.
So far, our first step is to allow employers to communicate
and submit documents with the agency electronically. We'll be
expanding that to allow employees to upload information as well
and for them to be able to check the status of their charge and
other things online. That will free up our investigators' time
to ensure we are more quickly investigating these charges.
And we are firmly committed to early resolution. I
mentioned earlier that our mediation settlement and
conciliation efforts are where the bulk of our work is done,
and we're continuing to improve on our processes to increase
our success.
Senator Murray. Thank you. We have heard some concerns
expressed about multiparty litigation and about litigation
where the EEOC initiates an investigation of discrimination or
equal pay using its own authority. Can either of you give us
some recent examples of those types of cases and what the
Commission's actions in those cases have meant for victims of
discrimination?
Ms. Yang. Well, why don't I start, and I'll give some
background, and then I'll turn it over to our General Counsel.
We use our commissioner charge authority very carefully. A
number of our statutes allow the Commission to initiate
investigations where we learn of a problem. But the bulk of our
work is actually done on individual charges.
Where we learn of a problem, we can issue a commissioner's
charge, and let me break down how we use that. Seventy-five
percent of the time, we use a commissioner's charge where we
actually have an existing charge. But during the course of the
investigation, we learn additional information that perhaps
this is a broader policy than was stated in the charge. It may
be nationwide. It may affect other affiliates. So we then issue
a commissioner charge to put the employer on notice of the
scope of our investigation.
Other times, we may be investigating race discrimination,
for example, and we learn about religious discrimination. So we
file a commissioner's charge again to put the employer on
notice of the scope of the investigation. That's a way for us
to use our resources most efficiently to address the problems
as we're seeing them and to put our resources where we can have
the greatest impact. So where we have commissioner charges,
we're really doing it to ensure that we're addressing a real
problem that we see.
Another 10 percent of the commissioner charges are brought
to us by individuals who are afraid to file a charge because of
fear of retaliation. But where they're providing us credible
information--for example, an individual came forward from a
national homebuilder and reported concerns of a policy that the
employer would not allow African-Americans to work in white
communities and would not hire them for those communities. She
was unfortunately forced to resign as a result of that
complaint.
But during the course of our investigation, we identified a
problem with promotions for African-Americans and women. So we
issued a commissioner charge in that situation to put the
employer on notice of the scope of the investigation.
The remaining 15 percent of our commissioner charges come
to us from a variety of sources. Sometimes other Federal
agencies, during the course of their work, identify a problem
that affects our statutes, so they will refer to us. Other
times, we may have a third party charge, such as in the case of
Henry's Turkeys, which you may be familiar with, where a
relative of one of the intellectually disabled individuals
involved came forward to report that violation.
Mr. Lopez. And if I could just give an example from
litigation, we were involved in litigation with a temporary
staffing firm. During the course of litigation, we discovered
that there were employers that were making sex-specific
staffing requests--do not send over women.
So based on that information, one of the commissioners
issued a charge, and that case actually turned into litigation,
a hiring discrimination case against a company in Cleveland
where we discovered that the company, in fact, had hired few,
if any, women. As a result of that charge, we were able to
settle the case. They were able to change their hiring
procedures and hire women--of course, this is in the 21st
century--hire women, and also made a commitment that they would
hire some of the women that they had rejected.
So it was a really good resolution that we would not have
been able to achieve but for the fact of the commissioner's
charge, because the women who were deprived of the position--
they didn't know. They didn't know that they were deprived of
the position because of sex. They didn't know that they were
almost being categorically excluded because of sex.
Senator Murray. I understand, and I'm over my time.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Murray.
Senator Roberts.
Senator Roberts. Mr. Chairman, I was afraid you were going
to do that.
The Chairman. Would you like for me to go to Senator
Warren?
Senator Roberts. Yes, sir. That would be very helpful.
The Chairman. I can do that. Actually, it's--I'm sorry. I
was out of order, Senator Warren. Senator Franken was the next
Senator in order.
Senator Franken.
Statement of Senator Franken
Senator Franken. Thank you, Senator Roberts and Mr.
Chairman.
Chair Yang, it's very nice to see you again, and I'm very
pleased to see my former senior counsel, Peach Soltis, who I'm
sure is doing as great a job at the EEOC as she did when she
worked for me. We miss you Peach.
Now, we've talked about your agency's limited resources.
You say in your written testimony that the EEOC receives nearly
10 times as many charges as you did in 1965. Just last year,
you received nearly 90,000 charges, and you continue to face a
backlog, as the chairman has spoken about, that can sometimes
lead to lengthy delays to resolve complaints which often places
employers and workers in limbo for extended periods of time.
Can you speak to how you are balancing the agency's
resources to achieve the agency's goal and to reduce your
backlog?
Ms. Yang. Thank you, Senator Franken, for that question and
for letting us have Peach. She has done a tremendous job for us
at the EEOC.
Senator Franken. I apparently had no choice.
[Laughter.]
Ms. Yang. Well, we appreciate it. We take our
responsibility----
Senator Franken. I think you could have gone after me if I
had refused to let her go.
[Laughter.]
Ms. Yang. We take our responsibility to use our resources
strategically very seriously. One of the things we've done as a
commission is issue a strategic enforcement plan which sets out
six national priorities that helps to focus our work. This
includes areas like systemic recruitment and hiring
discrimination, because that's an area where the government can
have an important impact, because often people do not know why
they weren't hired.
And because we are receiving charges from around the
country, we can then start to see patterns of discrimination
that are developing. So we are working to ensure that as the
charges come in, we are using our resources effectively. We're
assessing the issue. We have to investigate each charge. But we
need to use those resources where we can do the greatest good.
That is a constant balance and a challenge for the agency,
and I do believe we're making progress. With the additional
hires that we have, we are beginning to see an improvement this
quarter in the rate at which we can process charges. That means
that we're giving individuals and companies resolutions
earlier.
I mentioned earlier our commitment to our voluntary
resolutions. Before I joined the agency, I actually did not
realize how much of the agency's work was done through
voluntary resolutions, and that's primarily because most of
those resolutions are confidential. People don't appreciate how
significant they are, because you mostly hear about our
litigation.
Senator Franken. Are there ever any cases where you go to
somebody, and there's bias in their hiring practices, and you
point this out to them, and they say, ``Oh, my goodness, you're
right,'' and that's it, and then they change?
Ms. Yang. We are able to exchange information. We will,
during the course of the investigation as well as our
conciliation process, share with the employer the evidence that
we believe supports the violation, and often employers will
recognize that.
Senator Franken. So, you're required to conciliate with
businesses.
Ms. Yang. Yes. We are required to conciliate. We take that
responsibility seriously.
Senator Franken. And when that happens, how often do
employers say, ``I did not realize we do this,'' or ``This is a
practice that just is cultural at our--that's been cultural, we
thank you,'' and then they change?
Ms. Yang. We settle over 1,000, on average, charges through
conciliation each year. We resolve through mediations, even
earlier, over 70 percent of the charges in our mediation
program, which totals about 11,000. And then we settle cases
along the investigation. So it does happen quite often.
I believe most employers are trying to do the right thing.
They want to comply with the law. When they see that there's a
problem, they're trying to fix it.
Senator Franken. Good.
Mr. Lopez, we've heard a lot of criticism about the EEOC's
``runaway litigation'' program and the rebukes that you've
received in some high profile losses. I just want to give you
an opportunity to respond to some of your critics. Can you
describe the EEOC's litigation program, how you decide which
cases the EEOC will litigate, and what policy or guidelines are
in place about the cases you refer to the Commission for
approval?
Mr. Lopez. Sure. The cases that have been discussed with
respect to litigation failures or rebukes are really the cases
that keep me up at night also. That's really the essence of my
job, because we have an obligation to the public, to the
taxpayers, and we have very dedicated and committed people
committed to the idea of equal opportunity.
But I want to really put these cases in the broader
context. That's why I started by talking about how 93 percent
of our cases are resolved successfully. And I started by
talking about just the overwhelming success of our trial
program, which means that when we get an opportunity to tell
the story of discrimination to a cross section of the public in
the district, then we've been very successful. And it's
something that I think all of us are proud of.
With respect to the selection of cases, I think, as you
know, the Commission has a strategic enforcement plan which
sets forth enforcement priorities. And that is certainly,
partly the guide for us in terms of trying to decide which
cases would have the most law enforcement impact--those
priorities.
All of the districts also have their own priorities because
they have different demographics and different industries in
those districts. So they're really focused on making a
difference within the local communities that they serve.
Certain cases have to go to the Commission for litigation
approval. So cases such as the cases that Senator Alexander
mentioned involving a large--a significant requirement of
resources--those need to go to the Commission. Cases likely to
generate public controversy--those have to go to the
Commission. Cases where the Commission has not weighed in on
policy--those have to go to the Commission. And, recently, when
the Commission reaffirmed delegation in its strategic
enforcement plan, it also included a requirement that one case
from each district go to the Commission.
Senator Franken. Well, thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Franken.
Senator Scott.
Statement of Senator Scott
Senator Scott. Thank you, Mr. Chairman.
Mr. Lopez, we heard from Senator Alexander earlier about
the fact that there are 75,000 claims in your backlog. We hear
very consistently that there are limited resources. We have
heard of judicial rebukes.
But yet there seems to be a consistent pattern of looking
for something else to do other than the 75,000 claims in your
backlog, where there are no claimants, nobody stepping forward
saying they've been harmed, and yet you guys are investing very
precious limited resources that the taxpayers of our country
continue to provide and make available because they're
compelled to do so.
Whether it's Deloitte or, as we've heard recently, the
Texas Roadhouse situation, I just don't understand how it is
that we refuse to take a look at the 75,000 claims in your
backlog and go proactively after folks where there are no
claimants and no one coming forward asking for help, especially
and specifically in Deloitte, the same as--I think it was KPMG
and PWC.
Why not invest your limited resources, in taking care of
the taxpayers' dollars, in the cases where we know that someone
has stepped forward and said that they have been discriminated
against versus looking for places to use your very limited
resources?
Mr. Lopez. Thank you, Senator. And if you don't mind, this
might be--we might share the answer, because part of your
question goes to the investigative side of the Commission. I
just talked a little bit about one of the few cases that we
brought that involved either a commissioner's charge or a
directed investigation. It's really only a small fraction of
cases that we bring where there isn't actually a charge.
But the case I mentioned, I think, is a pretty compelling
case involving an employer's absolute failure and refusal to
hire women in the 21st century. The other case that the chair
mentioned was Henry's Turkeys, which was just an absolutely
horrifying situation involving 32 intellectually disabled
workers who were really not well positioned to bring charges on
their own. And that's another one where there weren't specific
charges.
So I think both of those cases really further the public
interest in terms of fighting discrimination and preventing
discrimination in the future. So with respect to litigation,
it's a small fraction, and those are the types of cases that
I'm talking about.
Senator Scott. How about the Deloitte case or the Texas
Roadhouse case? My thought is when you don't ask the question
of age on the application, how is it that we determine that
they're not hiring someone over a certain age?
Mr. Lopez. Texas Roadhouse is a case that is currently in
litigation. There's a lot of information in that case about the
type of evidence of age discrimination and nationwide age
discrimination in that case. That includes, very significant,
we allege, statistical disparities, but, very importantly, it
includes some pretty compelling anecdotal evidence, and I can
go through what some of that anecdotal evidence looks like, if
you want me to, in terms of talking about what----
Senator Scott. I know that my minute and 24 seconds are
heading down to zero very quickly. I'd ask this question. When
you talked about the statistical variations--is that what you
said?
Mr. Lopez. Statistical disparities.
Senator Scott. So if there is not a claimant that comes
forward, and if you just study the stats, you come to the
conclusion that that disparity must be discriminatory in nature
and baked into the operations?
Mr. Lopez. No. Usually there's other evidence, like
anecdotal evidence. In Texas Roadhouse, for instance, there are
comments that are in our complaint that indicated that Texas
Roadhouse favored younger people for front-of-the-house
positions.
Senator Scott. Mr. Chairman, I'll just use my time--
unfortunately, I didn't get to Ms. Yang during my time period.
I will tell you that over this weekend, I had an
opportunity to travel to four different States--or I think it
was three States--and visited several restaurants, just to take
a look at their front operations. And I will tell you that
having visited half a dozen, maybe more, restaurants, they all
appear the same on the front end.
When you look at the Texas Roadhouse specific case, without
any information that is actually gathered from an application
process, I would like to hear the anecdotal--if we have time,
Mr. Chairman--information, and/or please provide it to my
office so I can have a better understanding of what it takes to
get to where you are in spite of someone coming forward and
asking for it.
Mr. Lopez. Yes, we'd be happy to provide the complaint,
which really lays out the anecdotal evidence.
Senator Scott. That would be great.
Mr. Lopez. Thanks.
Senator Scott. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Scott.
Senator Murphy.
Statement of Senator Murphy
Senator Murphy. Thank you very much, Mr. Chairman. I think
it's worthwhile to just spend a few minutes on this case that's
been cited a few times, the Hill County Farms case. This is a
case where dozens of intellectually disabled men were
essentially in prisons, for all intents and purposes, for years
and years and years. Supervisors hit, kicked, handcuffed, and
verbally abused the men, and they were paid $2 a day. These
were not workers that had the ability to bring their own case
to the EEOC.
So the consequence of a paradigm shift in which the only
cases that you're allowed to review are cases that are brought
to you effectively renders individuals like this absolutely
helpless. I assume you would agree that your mission involves
bringing cases, maybe even more importantly, in the cases where
people don't have the ability to bring a case for themselves.
And you do it on a very limited basis, in fact. I mean, we're
talking about--you can tell me the number, but it's dozens of
cases, not hundreds of cases that get brought in this fashion.
But the precedent that that would send to employers, I would
imagine, could be incredibly harmful.
Mr. Lopez. Yes, thank you. It's important to remember that
both the Commission's charge and directed investigation
authority are statutory tools. Those are tools created by
Congress, and these are tools that have been used by the
Commission since as long as I've been there, which is since
1998. And they are tools that were endorsed by the Commission
in its systemic task force report which came out in 2006 under
the leadership of Chair Cari Dominguez.
So there hasn't really been any type of departure from our
ordinary practice in these areas to speak of. But I think that
the Hill County Farms case and the other case involving the
exclusion of women are both just very, very good examples about
why these tools are absolutely necessary for us to enforce the
law in a way that, really, private litigants can't do, because
in a hiring discrimination case, Senator, for the most part,
the victims do not know that they've been subject to hiring
discrimination.
You'd be surprised that there are some who do, but for the
most part, the employers don't say that we're not hiring you
because of X, Y, and Z. And it really takes a tool like the
commissioner's charge and us finding information, you know,
with the temp agency, about sex-specific requests, to get at
that type of discrimination.
Senator Murphy. Do you have a number on how many of these
cases you bring on an annual basis?
Mr. Lopez. I think the number that we provided during my
tenure is 12, but I'll check that. I think it's 12 cases that
we brought, which is just a very small fraction.
Senator Murphy. I think that's a really important context.
We're talking about 12 cases that have been brought----
Mr. Lopez. Yes.
Senator Murphy [continuing]. Without applicant, systemic
cases. Do you have a ball park as to how many of these cases
have been decided in favor of the employees?
Mr. Lopez. I think almost all of them have. I think most of
them were resolved early, and there's a subset of those cases
that involve challenges to age discriminatory pension plans
that have resolved early.
Senator Murphy. I think it would be a great thing for
employers if you stopped filing systemic lawsuits, because you
win them, and it provides an incentive and, frankly, an
advertisement for employers to conduct themselves in a way in
which, so long as their employees don't know that
discrimination is taking place or they are treated in such a
way that they have no means of redress--and that happens in a
variety of ways. Maybe it's outright abuse, as happened in
Iowa.
But there are other ways in which you can just make clear
that the consequences of taking action are so serious that it
shelves people's interest in doing it. I think that might be a
wonderful thing in the end for employers.
But this is a very limited use of power that has happened
over the course of Republican and Democratic administrations.
Nothing is changed by way of your use of this statutory
allowance to bring systemic cases. What has changed is the
number of cases that you are getting from applicants and the
declining resources that you have to address those increasing
numbers of cases. That's what's changed. What has not changed
is your continued reservation of the power to go after cases
when employees may not be able to do it themselves.
Mr. Lopez. Thank you, Senator.
Senator Murphy. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Murphy.
Senator Roberts.
Statement of Senator Roberts
Senator Roberts. Thank you, Mr. Chairman. Thank you for
your diligence.
Obviously, EEOC is an important component of ensuring equal
opportunity. But, like others have stated--the distinguished
Senator from South Carolina and our chairman--I am concerned
that you all have strayed from your core mission, and the
75,000 individual complaints that are waiting on action will
fall through the cracks because of investigations brought on by
the agenda.
The chairperson has indicated, if I have my notes correct,
90,000--I can't read my writing. Help me out--you said 90,000
changes?
Ms. Yang. Charges, nearly 90,000 charges this past fiscal
year.
Senator Roberts. Charges. And then you are trying to
balance the strategic plan. I have the strategic plan here--
eliminating barriers in recruiting and hiring, protecting
immigrant, migrant, and other vulnerable workers; addressing
emerging and developing issues--that's sort of nebulous--
enforcing equal pay laws--that's not nebulous--preserving
access to the legal system--that's certainly is not nebulous.
By the way, on the access to the legal system--is that
provided to the 75,000 that are still waiting?
Ms. Yang. Excuse me?
Senator Roberts. Is this goal of preserving access to the
legal system--is that applicable to the 75,000 that are still
waiting?
Ms. Yang. We do believe access to the legal system is
important, and I do believe that justice delayed can be justice
denied. So that is an important priority for the agency to
ensure we are timely investigating our charges.
Senator Roberts. Then the sixth one was preventing
harassment through system enforcement and targeted outreach.
But you went on a little bit further than that and said that
this strategic plan, adopted in 2012 to be implemented,
represents national priorities, a national priority system,
with regards to systemic behavior.
Systemic behavior is a pretty serious disease. Systemic
behavior means that there are behaviors out there that you
obviously view, with these six kinds of things, that you need
to address first, as opposed to the 75,000, and that there's a
pattern of discrimination, as determined by your goals here or
your strategic plan.
I'm not sure that's correct. I do not have the background
that you have or the expertise to make that statement. But it
seems to me like you are an agency looking for patterns of
discrimination, as opposed to taking up action on the 75,000
individual complaints that are waiting.
My question is why, if you did not take up the 75,000
people that are waiting, would that not reflect the same kind
of patterns of discrimination that you are addressing in the
2012 plan?
Ms. Yang. I appreciate the concern that you're raising
about how we're using our resources, and I'd like to tell you a
little bit more about how we're doing that. We right now have
548 investigators. Last year, they investigated 87,000 charges.
So we aren't letting those 77,000 charges sit. We are actively
investigating those charges.
But during the same year, we received an additional over--
maybe--over 88,000 new charges. So we keep getting new charges
in. Our investigators are working to resolve those charges. We
are focusing our resources where we think the government can
have the greatest good. So we're looking at what the larger
problems are, because we want to understand how to help
employers change those practices and prevent discrimination
going forward.
Systemic harassment is an area that we see consistently. So
we have formed an anti-harassment task force led by
Commissioner Lipnic and Commissioner Feldblum to look at the
root causes. The most frequent kind of harassment we see is
race discrimination, followed by disability harassment, and
then third is sexual harassment.
We want to understand what are the risk factors in the
workplace that are causing those problems so we can look more
comprehensively at solutions, because we know that simply
litigating and investigating is not going to prevent the
problem because we continue to see these cases around the
country, and we want to help employers prevent it.
Senator Roberts. In the 33 seconds I have left, is there a
way that you could determine with the three that you just
mentioned--determining systemic behavior and the cost of that,
in other words, going out and trying to determine nationally
what the patterns of discrimination are, and then the cost of
cleaning up, if you possibly can--but you've indicated that
you've got 80,000 next year--but at least try to get that
number down on the 75,000.
I still think that if you went through the 75,000, you
would find the same kind of systemic behavior and patterns of
discrimination that you would--rather than going looking for
it.
Ms. Yang. Right, and often we do. We investigate individual
charges. Sometimes we'll have 50 or 70 charges against the same
employer. So we look at what is the consistent problem that
we're seeing----
Senator Roberts. That's pretty systemic.
Ms. Yang [continuing]. So we can prevent it from getting
more charges, right, because if we can help improve the
practice, then we won't have the discrimination. So that's why
we're trying to use our resources strategically to identify the
problem and fix it. Otherwise, we can get relief for one
person, but we're going to have more coming down the pipeline.
Senator Roberts. Is there any yardstick as to the cost of
what you're doing on one hand as opposed to what I have talked
about with the 70,000?
Ms. Yang. About 25 percent of our of our cases right now
are systemic cases. Seventy-five percent are not. That's the
balance that we were aiming for with our resources. It is the
highest percentage of systemic cases that we've had, because we
see it as an effective use of our resources.
Senator Roberts. Where do you think that's heading, 50-50
someplace?
Ms. Yang. We set targets, and we think that's a good
balance of our resources, because the systemic cases take more
resources, and we need to be very careful about how we invest
in them.
Senator Roberts. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Roberts.
Now Senator Warren.
Statement of Senator Warren
Senator Warren. Thank you, Mr. Chairman.
According to the 2013 census data, women make less than men
in 333 out of 342 job categories. That's 97 percent of major
occupations. A 2014 analysis published in the Harvard Business
Review found that black and Hispanic workers consistently make
less than their white and Asian colleagues. A 2015 AARP report
shows that older unemployed workers spend longer looking for a
job than their younger counterparts. So we've got age, gender,
race. A reasonable person would say that we have work to do
when it comes to workplace discrimination.
Now, the EEOC helps tens of thousands of individuals every
year who file charges of discrimination in the workplace. But
thousands more benefit from the results of the systemic program
which tries to root out discrimination that affects entire
classes of workers.
Back in 2006, Commissioner Silverman, who was appointed by
President Bush, concluded--and I want to quote here--``EEOC is
uniquely equipped to combat systemic discrimination.'' And he
made that a top priority for the EEOC.
So, Chair Yang, my question for you is whether the EEOC's
current focus on systemic investigations is new or if it's just
a continuation of the policy begun during the Bush
administration.
Ms. Yang. Thank you, Senator Warren. Our systemic work is
an important part of the agency's work, and as you recognized,
it has been continuing. The systemic task force in 2006
recommended that we invest more of our resources on systemic
cases because we can have a greater impact, and it's a
particularly important role for the government to play.
They also emphasized that it is important for us to use the
commissioner charge and directed investigation process so that
we are proactively identifying the greatest needs for our
resources, rather than simply being reactive, because we know
that for every person that comes forward, there are many others
who may not know they're being discriminated against or are
afraid to do so.
Senator Warren. So let's push on this a little. As part of
your efforts to combat systemic discrimination, the EEOC has
been criticized for using its authority to initiate
investigations without a specific complaint from a specific
worker who is directly affected. But looking at the same data
that the General Counsel looked at, I noted that of the nearly
900 cases filed on the merits since 2010, only 12 were based on
investigations initiated by EEOC, or just slightly over 1
percent.
So, Chair Yang, let's focus on that 1 percent. In those few
cases where the EEOC brings its own action without a specific
employee complaint, is the Commission just duplicating what
individuals should be doing on their own, or are there specific
reasons why you needed to investigate and initiate these
investigations?
Ms. Yang. There's a particularly important role the
government plays because, as I mentioned earlier, often
individuals do not fully appreciate that they may be subjected
to discrimination. We see that a lot with hiring, also with
pay, where people do not necessarily know what other people are
paid.
But we can see from some of the charge information and our
directed investigation authority where there may be a larger
problem. So we are using that as a way to invest our resources
to address the larger problem.
Senator Warren. There's been much talk, though, about the
backlog that you face. I note that back in 1980, the EEOC had
more than 3,000 people working to enforce non-discrimination
laws. Since then, the American workforce has expanded by nearly
50 million workers, but the number of people at EEOC who are
there to enforce non-discrimination laws has been cut by more
than 1,000 workers.
With the number of employees down by a third, how has the
EEOC's ability to launch important systemic investigations been
affected?
Ms. Yang. That's an important question, and we think
carefully about how to use our resources. With the limited
resources we have, investing in systemic cases can be one of
the most effective ways for us to use those resources, because
instead of separately investigating 50 different charges, we
can try to affect that practice at issue to ensure that we are
preventing discrimination from going forward.
So we are carefully identifying the cases that we are going
to file, because we know they take significant resources. But
through those efforts, we are working to bring about lasting
change that can help the employer build a stronger workplace
and become more productive as a result.
Senator Warren. Thank you. You know, I wish we didn't have
to be here today discussing the Equal Employment Opportunity
Commission, because I wish the EEOC wasn't necessary. I wish
that all Americans could apply for jobs and go to work,
confident that they would not be passed over because of their
age, confident that they wouldn't get lower pay because of
their gender, confident that they wouldn't get worse hours
because they're African-American, and confident that they
wouldn't be retaliated against when they ask for equal
treatment.
But all the independent evidence shows us that we are not
there yet. Until we get there, our continued efforts to address
this issue are an important part of who we are as a people. We
have more work to do, including passing long overdue LGBT anti-
discrimination legislation so the EEOC can better protect
people who face discrimination in the workplace because of
sexual orientation.
But at a minimum, we can encourage the EEOC to do the work
it can to protect every working American and make sure that we
all have equal opportunities on the job. Thank you very much
for your work.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Warren.
Senator Murray, before we conclude, do you have any other
questions or comments?
Senator Murray. I just have a couple. Thank you.
Chair Yang, I know it is a priority for you to prevent
discrimination before it happens. Can you tell us more about
how, as chair, you intend to engage in education and outreach
efforts to help that?
Ms. Yang. Thank you for that question. Education and
outreach is a critical part of our work. One of the things that
we've been doing, particularly under our strategic enforcement
plan, is to integrate our outreach and education around the
country so that our offices are focusing on some of the
persistent issues that we see, and we can reach out to
particular regions or occupations where we're seeing a problem
so that they understand where they can do better in complying
with the law and so we can understand where there are some
problems for employers in complying, and we can figure out how
to better assist them.
Senator Murray. You talked a little bit earlier about
conciliation, Mr. Lopez. I know that's an important tool for
EEOC to help resolve discrimination cases. So it's really
important that it's done right. And I want to ask you do you
provide guidance to your enforcement staff on how to conduct
conciliations?
Mr. Lopez. Well, I want to place this in the context of the
way we're structured. The investigative side is responsible for
conducting the conciliations, and only after a case fails
conciliation will it become legal. Our lawyers are involved in
providing counseling in the process in terms of trying to help
get to good resolutions in the conciliation process really in a
sort of advisory role. But most of the work is really done at
the other end of the Commission.
Senator Murray. Chair Yang.
Ms. Yang. We do provide guidance to our investigators on
the conciliation process, and we're working to provide
additional guidance in light of Mach Mining so that our
investigators understand that even though the review is
limited--the court, you know, in Mach Mining said the review of
our process is limited--we want to emphasize that our efforts
to conciliate will not be limited, because it remains a very
important way in which we can resolve cases early, get relief,
get changes to the practice, rather than being embroiled in
years of litigation.
So that's an important area for us that we're going to be
continuing to educate our staff on. We have a unit in
headquarters that goes out to the field to audit the process.
We audited over 20 different offices last year, and they review
the process. They look at the conciliation efforts to ensure
that they're adequate, and, on a regular basis, supervisors in
those field offices are reviewing the conciliation process,
because it's required to be documented. So we're ensuring that
our staff understands what we expect of them to ensure that we
are using this process as productively as possible.
Senator Murray. But what is the recent record on
conciliation?
Ms. Yang. We have had a very successful success record.
We've brought it up, actually, by 40 percent since fiscal year
2010 where we were at a 27 percent success rate. Now we are at
a 38 percent success rate, and we have had even higher
percentages in other years. So it's a significant part of our
work.
Senator Murray. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Murray.
I have several other questions, but I'll submit most of
them for the record, if I may, if you all will respond to them.
Let me ask three of them quickly.
No. 1, Mr. Lopez, I understand you issue a press release
when EEOC sues an employer. Do you take down the press release
if you lose the case?
Mr. Lopez. I am not really in charge of that, but we
probably should, yes.
The Chairman. Will you do that?
Mr. Lopez. It's not really my line of authority, but I
would recommend----
The Chairman. Whose is it?
Mr. Lopez. It would be----
Ms. Yang. That would be mine, and we will certainly look at
that. I appreciate that concern, yes.
The Chairman. But if you lose the case, shouldn't you take
down the press release? We know of five examples where you--I
mean, it's embarrassing to an employer to be sued, and if the
court finds against you, it seems to me the fair thing to do is
take it down.
Ms. Yang. I'm glad you raised that issue. I will certainly
look into it, and we will be happy to report back to you.
The Chairman. Thank you.
Ms. Yang, under your procedures, I believe the General
Counsel is required to submit to the Commission a case that has
a high likelihood of creating public controversy. Is that
right?
Ms. Yang. Correct.
The Chairman. And there are significant concerns with your
investigation of accounting firms and their voluntary
partnership agreements initiated without a complaint. Do you
believe the Commission should vote prior to commencing
litigation against Deloitte, KPMG, or any future case alleging
age discrimination in a partnership agreement?
Ms. Yang. Thank you for raising that issue. I know it's
been one of interest to many. I can't comment specifically on
any particular investigation. But I would expect that if the
General Counsel were to recommend litigation on that issue, it
would be something that would come up to the Commission. We
take seriously----
The Chairman. Wouldn't you think six congressional hearings
would constitute a public controversy?
Ms. Yang. I would. I would agree with that.
The Chairman. Then if your procedure is that you should
consider cases that create a public controversy, why wouldn't
the answer be yes, that if you----
Ms. Yang. Well, yes. I do expect that that would be the
case. That is true.
The Chairman. Thank you. And the other one--we've talked a
lot about employee wellness, and I'll detail my question to
you. But the proposed rule that you put out in April, to me,
doesn't solve the problem. This is something that most of us--
I'm always hesitant to speak about the Affordable Care Act and
say most of us, because we disagree on much of it. But most of
us and the President like the idea of encouraging employees to
lead a healthy lifestyle by their employers offering a
financial reward.
Three of the President's departments wrote regulations
according to the Affordable Care Act that many employers
followed. EEOC came along with a rule that conflicted. You've
tried to fix that, but, in my view, it doesn't fix it, and you
even exceed your jurisdiction and authority by limiting to 30
percent the premium that an employer may charge.
Without going into too much detail, I've introduced
legislation to try to reaffirm existing law and to try to clear
up the confusion. Will you please commit to looking at my
legislation as a way forward for the EEOC as the Commission
drafts a final rule and taking it into account as you look at
your options?
Ms. Yang. Certainly. We, as you know, have a process of
public comment, and we are looking to hear feedback from all
sources to ensure that we make the rule as good as it can be.
We worked hard to design a workable rule that balances the
interests of the ADA with the Affordable Care Act as it amends
HIPAA, and we worked closely with the other Federal agencies
charged with enforcing the ACA to create a rule that could work
for companies to promote wellness.
I've talked to many companies who are investing a lot of
resources in wellness programs because they truly believe in
improving their employees' health. And we want to be able to
support those efforts.
The Chairman. Well, thank you. And please keep in mind that
the committee and the Congress that passed the Affordable Care
Act included many of the same people that passed the ADA, and
the Affordable Care Act came last. So if you were to defer to
the Congress and the President that acted last in this area, I
think you would have to conclude broad latitude for employers
in employee wellness programs.
The hearing record will remain open for 10 days. We thank
the witnesses for joining us today. Members may submit
additional information and questions for the record within that
time if they would like.
The committee will stand adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of the National Restaurant Association
Chairman Alexander and Ranking Member Murray, thank you for holding
this hearing and providing critical oversight on the EEOC's current
questionable and controversial enforcement and litigation practices. My
name is Angelo Amador and I am senior vice-president and regulatory
counsel at the National Restaurant Association.
Our Association is the leading business representative for the
restaurant and food service industry. The industry is comprised of 1
million restaurant and food service outlets employing 14 million
people--about 10 percent of the U.S. workforce. Restaurants are job
creators and the Nation's second-largest private-sector employer.
Despite its size, small businesses dominate the industry; even larger
chains are often collections of smaller franchised businesses.
Our Association and its members understand the valuable function
the EEOC plays in maintaining a bias-free workplace. However, we have
serious concerns about some of the EEOC's current actions. For example,
the lack of transparency by the EEOC creates immeasurable difficulties
for companies as they attempt to defend themselves in litigation. In
addition, the EEOC is making significant--and sometimes controversial--
policy changes by issuing ``guidelines'' without the publication and
comment period that would be required if they followed the formal
regulatory process.
Two of the EEOC's unusual and novel legal theories have proven
costly for employers who are increasingly targeted by the EEOC. First,
a few years ago, I started hearing from members about EEOC harassing
techniques over the use of background checks, in some cases, as has
been pointed out, ``the same type of background checks that the EEOC
itself uses.'' More recently, while the EEOC has tens of thousands of
age discrimination complaints that it should address, it has, instead,
started investigating some of our member companies that they find
suspect--even when no complaint has been filed. In fact, as Chairman
Alexander pointed out at the hearing, the EEOC appears to be putting up
``Craigslist'' ads trying to find complainants, after starting
investigations without any individual filing a complaint.
While the EEOC representatives did not seem to know who at the
agency may have placed the Craigslist ads, they confirmed that the e-
mail addresses used in them belong to the EEOC. We urge you to ask the
agency to fully answer the question they were unable to answer at the
hearing as to who and why someone has decided that placing these ads on
behalf of the EEOC is the proper way to seek complainants when the
agency itself is unable to find any through proper channels.
EEOC General Counsel Lopez seemed to have insinuated in his answer
that the ads may not have been placed by the agency. If that is the
case, why then has the EEOC not tried to find out who and under what
authority are these ads being placed on behalf of the agency. As you
can see from a copy of the actual Craigslist advertisement below, it
appears extremely improbable that anyone else other than agency staff
or someone working under its authority, would have placed this
advertisement:
texas roadhouse age discrimination case (nationwide)
Texas Roadhouse Litigation
(compensation: Pursuant to settlement.)
The EEOC has sued the Texas Roadhouse chain of restaurants,
claiming that Texas Roadhouse did not hire people age 40 and older
because of their age.
If you believe you may have been denied a front of the house
position such as server, hostess/host, bartender, etc. at Texas
Roadhouse because of your age or if you have information, please
contact the EEOC toll free at:
(855) 556-1129
or by e-mail at:
[email protected].
Do not contact this e-mail address or phone number unless you
applied for a job with Texas Roadhouse or you have any relevant
information. If you want advice or have a claim concerning any other
employer or respondent covered by EEOC you can contact an EEOC field
office, or call toll-free 1-800-669-4000 (or TTY 1-800-669-6820), or e-
mail us at [email protected].
Principals only. Recruiters, please don't contact this job
poster.
do NOT contact us with unsolicited services or offers.
post id: 4996552669 / posted: 25 days ago / updated: 25 days ago
Meanwhile, as the EEOC continues to pursue investigations that do
not involve a complainant, the backlog of actual complaints continues
to grow and now stands at over 75,000. Our industry is not alone, as
the EEOC continues to investigate at least three accounting firms--none
of which had a complainant--where partners voluntarily adopted a
mandatory retirement age.
One of the most notorious investigations in the restaurant industry
involves the Texas Roadhouse restaurant chain--which is also the
subject of the Craigslist advertisement copied above. The EEOC began
this investigation in 2011 claiming age discrimination--because Texas
Roadhouse's hosts, bartenders, and servers seem too young. There was no
complaint of such a violation, but the agency's actions forced Texas
Roadhouse to fight a lengthy and costly court battle--not to mention
the cost to protect its public image against litigation by press
release.
As highlighted at the hearing, the EEOC has been losing these
lawsuits--which were premised on controversial legal arguments from the
start--while receiving strong rebukes from the judges deciding these
cases. The EEOC representatives acknowledged that they issue press
statements to highlight these cases and investigations at their outset,
but do nothing to clear the names and reputations of employers that are
cleared of any wrongdoing by the courts.
Meanwhile, employers are left with the task of cleaning the damage
to their reputation from headline grabbing press releases when they
have not broken the law as the EEOC alleges under dubious legal
arguments.
Another recent example of EEOC's overreach is apparent in its
discrimination claims against employers that offer discounted health
insurance to employees who participate in wellness programs. These
programs are allowed, and encouraged, under the Affordable Care Act.
Regardless, the EEOC has been filing lawsuits against employers under
the Americans with Disabilities Act and the Genetic Information
Nondiscrimination Act, claiming that the increased health insurance
premiums paid by employees who do not participate are discriminatory.
The National Restaurant Association recently joined other business
organizations in asking Congress to pass legislation to increase EEOC
transparency and accountability and reaffirm existing law on employee
wellness programs. We are encouraged by Chairman Alexander's own
legislation to tackle some of these issues.
Once again, while we support the EEOC's mission of preventing
discrimination in the workplace, we are troubled by its pursuit of
frivolous investigations, particularly those that are not driven by
employee complaints.
Thank you again for your vital oversight of the EEOC. We look
forward to continuing to work with you and your staff to make sure the
EEOC properly addresses the concerns outlined above.
______
Healthcare Leadership Council,
June 2, 2015.
Senate Health, Education, Labor, and Pensions Committee,
428 Dirksen Senate Office Building,
Washington, DC 20510-6300.
Re: Statement for the record for the hearing, ``Oversight of the Equal
Employment Opportunity Commission: Examining EEOC's Enforcement
and Litigation Programs''
Dear Chairman Alexander and Ranking Member Murray: On behalf of the
Healthcare Leadership Council (HLC), thank you for your leadership in
advancing policies designed to improve the health of all Americans and
for your interest in further examining the value workplace wellness
programs bring to employees and their employers. HLC members have
followed the recent activities of your committee regarding workplace
wellness programs with interest and look forward to working with you as
you provide oversight of the U.S. Equal Employment Opportunity
Commission (EEOC) and its forthcoming promulgation of wellness program
regulations.
HLC is a coalition of chief executives from all disciplines within
American healthcare. It is the exclusive forum for the Nation's
healthcare leaders to jointly develop policies, plans, and programs to
achieve their vision of a 21st century health system that makes
affordable, high-quality care accessible to all Americans. Members of
HLC--hospitals, academic health centers, health plans, pharmaceutical
companies, medical device manufacturers, biotech firms, health product
distributors, pharmacies, and information technology companies--
advocate measures to increase the quality and efficiency of American
healthcare by emphasizing wellness and prevention, care coordination,
and the use of evidence-based medicine, while utilizing consumer choice
and competition to enhance value.
HLC members are at the forefront of designing and implementing
meaningful wellness programs to better the lives of their employees,
communities, and patients. Based on decades of experience in
implementing evidence-based wellness programs, we strongly believe
appropriately designed wellness programs have the potential to
contribute to promoting health and preventing disease. HLC is a strong
supporter of the Affordable Care Act (ACA) provisions that encourage
the use of workplace wellness programs by allowing increased premium
variation incentives for those that complete workplace wellness
programs. These provisions were endorsed on a bipartisan basis by your
committee and Congress, as well as supported by the President and the
Administration, as one of the keys to addressing the chronic disease
epidemic, which will continue to dramatically burden the healthcare
system if left unchecked.
Given the lack of clarity about the EEOC's position on the extent
to which the Americans with Disabilities Act (ADA) permits employers to
offer incentives to employees to promote participation in wellness
programs, we are pleased to see that the EEOC is finally moving forward
with regulation. Guidance will reduce the uncertainty that employers
who implement innovative wellness programs currently face and the
chilling effect this has produced on the ability of employers to move
forward with them.
However, while we are pleased that the EEOC does not view health
risk assessments and biometric screenings as incompatible with
incentives as part of voluntary programs, we continue to have concerns
about the proposed regulation. Specifically, the proposed regulation
conflicts with existing law as well as leaves some questions
unanswered. We look forward to sharing our full feedback on the
proposed rule with the EEOC as well as members of the committee.
As employers and the healthcare industry await the final
regulation, we wish to commend your committee for providing oversight
to the EEOC's activities. We echo the concerns voiced by members of the
committee during the hearing about the timely need for clear
regulations regarding workplace wellness programs. We look forward to
the release in July of proposed rules regarding the Genetic Information
Nondiscrimination Act (GINA) and workplace wellness programs and urge
the committee to encourage the EEOC to provide comments harmonized with
the ADA regulations to reduce confusion.
As the committee works to ensure that voluntary workplace wellness
programs continue to flourish and aid in empowering patients to address
health risks that may lead to dramatically reduced health and well-
being, please consider us a partner. We offer our assistance and would
welcome the opportunity to discuss these ideas with you or your staff.
Sincerely,
Mary R. Grealy,
President.
Response by Jenny Yang, to Questions of Senator Alexander, Senator
Paul, Senator Collins, and Senator Roberts
senator alexander
Question 1a. According to a January 26, 2015, Bloomberg BNA
article, entitled EEOC Welcomes New Staff to Build on Agency's National
Enforcement Strategy, an EEOC spokesperson told Bloomberg that as of
December 1, 2014, EEOC had 820 investigators and 395 attorneys.
However, at the May 19 hearing, you stated EEOC only has 548
investigators. Please explain this discrepancy and how many
investigators EEOC has in the Office of Field Programs and how many
attorneys it has under the Office of General Counsel.
Answer 1a. EEOC currently has 548 available \1\ front-line
investigators in the Office of Field Programs who take in and
investigate charges and 226 attorneys in the Office of General Counsel.
Of those attorneys, 55 are supervisory and 171 are non-supervisory.
---------------------------------------------------------------------------
\1\ The 548 investigator number refers to front-line investigators
identified as ``available'' in the agency's quarterly reports. These
quarterly reports reflect staff availability to serve as full-time
investigators adjusting for factors such as part-time status, military
service, detail to other positions (such as mediator), extended leave
for medical reasons, and the training status of new EEOC investigators
during their first 3 months on the job.
---------------------------------------------------------------------------
The 820 investigator figure referenced in the Bloomberg BNA article
was based on a December 2014 staffing report listing all staff who held
a position that included ``investigator'' in the job title, as
classified by OPM. This staffing report figure included not only our
front-line investigators, but also staff in supervisory and management
roles at varying grade levels, including intake supervisors,
enforcement supervisors, enforcement managers, and deputy directors of
district offices, as well as field, area, and local office directors.
The 395 attorneys cited in the BNA article include attorneys
throughout the agency, in the Office of Legal Counsel, the Office of
Federal Operations, the Office of Field Programs, and the Office of
General Counsel, as well as other offices.
Question 1b. EEOC litigates less than one quarter of 1 percent
(0.15 percent) of all charges filed. Would you consider shifting
resources around to devote more staff to reducing the growing backlog
of more than 75,000 complaints?
Answer 1b. EEOC devotes by far the largest part of its resources to
investigations initiated in response to charges of discrimination,
which reflects the priority the agency places on timely investigation
of charges. The agency has been steadfastly committed to managing its
workload and achieved significant reductions in fiscal years 2010-13
despite fiscal constraints and operational challenges, including a
historic rise in charge receipts in fiscal years 2008-13. Sequestration
and a 16-day government shutdown in fiscal year 2014 impeded the
agency's capacity to sustain significant inventory reductions in fiscal
year 2014.
EEOC carefully considers its distribution of resources and devotes
the majority of resources to timely management of our inventory. The
agency works with employers to resolve voluntarily thousands of charges
of discrimination. In fiscal year 2014, EEOC resolved a total of 13,604
charges through voluntary resolutions and litigated 133 lawsuits. Where
the agency identifies a significant violation of the law that the
parties are unable to resolve voluntarily, a strong litigation program
is important to ensure compliance. The resources allocated to the
Office of General Counsel (``OGC''), account for less than 15 percent
of EEOC's budget. These resources support the agency's litigation as
well as the provision of legal advice and support to the agency on
policy matters and to investigative staff.
Question 2. Does EEOC ever utilize a third-party to find, or help
find, plaintiffs before or during an investigation or litigation? This
includes, but is not limited to, Web sites, contracted legal services
or investigative services, contract employees, social media, etc.
If so, since 2010, please list each instance where this has
occurred and the amount of resources spent in each instance.
Answer 2. When an employer fails to keep records, it may be
difficult for EEOC to obtain information on those harmed or potentially
harmed by a discriminatory policy or practice.
On rare occasions, after an investigation has been completed and
during conciliation, an employer who has not kept the records required
by law may agree to Web postings, advertisements, or other means to
identify potentially aggrieved individuals. In these circumstances, it
is generally the respondent who creates and pays for advertisements.
In certain larger investigations, EEOC may contract for the
services of temporary paralegals or support personnel to contact and
interview individuals who may be witnesses or who may have been harmed
by the discriminatory policy or practice alleged. During the
investigation, these paralegals or support personnel may be required to
search for contact information where the information on file is
inaccurate, missing, or outdated. The time they spend updating or
obtaining contact information for potentially aggrieved individuals is
not recorded separately from the time they spend on preparing files,
organizing documents, and entering data.
In litigation, EEOC has occasionally contracted with a third-
party--such as placing ads with a newspaper or radio station--to find
an individual for whom the agency seeks to obtain relief.\2\ We have
identified three instances since 2010 in which EEOC has contracted with
a third party during litigation to help find individuals who may have
been harmed by the discriminatory policy or practice alleged. We
contracted with third parties in these instances because we were unable
to identify members of the protected class at issue from the employer's
records.
---------------------------------------------------------------------------
\2\ EEOC is the ``plaintiff '' in its litigation, and individuals
for whom the agency may pursue relief are considered aggrieved or
potentially harmed individuals.
In 2011, in a case filed against a restaurant with two
locations for alleged race discrimination against African-Americans in
hiring and job assignments, EEOC contracted for radio ads, at a cost of
$7,995, to help identify individuals affected by the discrimination
alleged. The lawsuit was settled in 2014.
In 2012, in a case filed against an automobile shipment
company for alleged failure to hire African-Americans because of race
and alleged discrimination against applicants with disabilities based
on pre-employment medical inquiries, EEOC contracted for newspaper ads,
at a cost of $3,525, to help identify individuals affected by the
discrimination alleged. This lawsuit is pending.
In 2012, in a case filed against a restaurant with six
locations for alleged failure to hire individuals 40 years old and over
because of age, EEOC contracted for radio ads, at a cost of $2,475, to
help identify individuals affected by the discrimination alleged. The
lawsuit was settled in 2013.
Question 3. Does EEOC ever review Craigslist to search for evidence
of potential discrimination?
If so, how often and how many resources are spent on these efforts?
Answer 3. Over the course of the past 5\1/2\ years (fiscal year
2010-15, to date), EEOC has expended minimal resources to review
Craigslist advertisements to identify evidence of discrimination. For
example, sometimes EEOC learns of potentially discriminatory ads on
Craigslist from a member of the public or during the course of an
investigation. Investigators would go directly to Craigslist to confirm
those allegations. We estimate that during this 5\1/2\ year period,
investigative staff spent a total of approximately 200 hours to
identify evidence of discrimination in ads on Craigslist. In some
instances, for example, offices identified potentially discriminatory
job advertisements that may have excluded applicants based on gender
and age.
Question 4. At the May 19 hearing, I asked that EEOC remove press
releases from their Web site in the cases in which EEOC lost the case.
You responded that you would take a look at this issue and report back
to me. As of May 29, 2015, press releases announcing lawsuits that EEOC
ultimately lost remain on EEOC's Web site. Will you commit to removing
the press releases and by what date will this be complete?
If you cannot commit to removing these press releases at this time,
please explain all of the factors you are weighing as you consider my
request.
Answer 4. In response to this request, moving forward, the agency
intends to remove press releases after the final resolution of a case
in which EEOC has lost and no appeal is being filed or in which the
loss is affirmed on appeal. In addition, we will remove from the site
press releases for any case that EEOC voluntarily dismisses. We will
complete this review over the next 6 months and remove press releases
on a rolling basis. Finally, we have removed the five press releases
Chairman Alexander referenced at the May 19 hearing.
Question 5a. According to EEOC's Performance and Accountability
Reports (PAR), EEOC initiated litigation in 91 systemic cases since
fiscal year 2010. According to your testimony from the hearing, 12 of
those charges in litigation were based on a charge filed by someone
other than the aggrieved party, or roughly 13 percent.
Since 2010, please provide a list in a sortable Microsoft Excel
Spreadsheet of all investigations by year, including non-systemic
investigations, based on:
1. commissioner's charge;
2. directed investigation; and
3. any other charges filed by someone other than the aggrieved
party.
See Question 5b and 5c for response.
Question 5b. For each of these investigations in (a), please
indicate if the investigation is systemic or non-systemic, is ongoing,
is in litigation, was settled through conciliation, or was dropped by
EEOC without reaching a resolution with the employer.
Answer 5a and 5b. Attached are spreadsheets listing Commissioner
charges and directed investigations identified by statute, issue,
basis, and fiscal year, with notations on whether the matters are
systemic or non-systemic, ongoing or closed, as requested. Although our
data base does not permit us to provide a spreadsheet of ``any other
charges filed by someone other than the aggrieved party,'' we have
provided an explanation below.
Typically, more than 50 percent of Commissioner charges and
directed investigations have been opened during an investigation of a
charge filed by an individual where the evidence suggests a broader
policy or practice that affects other workers. Approximately 75 percent
of Commissioner charges and directed investigations are based on
discrimination in hiring, which is one of the most difficult issues for
individual workers to challenge, and is therefore a priority for EEOC.
As the attached spreadsheet of Commissioner charges shows, EEOC
opened 125 Commissioner charges from fiscal year 2010 through June 10,
2015. Of those, EEOC resolved 38 charges, and the other 87 remain in
investigation. Of the 38 resolutions, 15 were settled with benefits
before a finding was issued, the Commission issued a cause finding in
15 investigations and successfully conciliated 7 of those, and for 8
investigations the Commission either administratively closed or did not
find sufficient evidence of discrimination to issue a cause finding and
dismissed the charge. That means that the Commission found
discrimination or obtained a settlement in nearly 80 percent of the
charges resolved.
EEOC opened 520 directed investigations--470 under the ADEA and 50
under the EPA--from fiscal year 2010 through June 10, 2015, as the
attached spreadsheet of directed investigations shows. Of the 520
directed investigations, EEOC resolved 440, and 80 remain in
investigation. Of the 440 resolutions, EEOC found reasonable cause to
believe discrimination occurred in 243 investigations (55 percent) and
successfully conciliated 164 of these investigations (67 percent). The
high number of reasonable cause findings and successful resolution rate
reflects the strength and significance of these investigations as well
as EEOC's commitment to conciliation efforts. In addition, EEOC settled
110 charges prior to issuing a cause determination. Therefore, of the
440 resolutions, 110 were settled with benefits before a finding was
issued, the Commission found reasonable cause to believe discrimination
occurred in 243 investigations, of which 164 were successfully
conciliated, and the Commission either administratively closed or did
not find sufficient evidence to support a cause finding in 87
investigations and closed the investigation. That means that the
Commission found discrimination or obtained a settlement in
approximately 80 percent of the charges resolved.
Section 706(b) of Title VII provides that charges may be filed ``by
or on behalf of '' individuals claiming to be aggrieved. Our data base
identifies the ``source of the complaint,'' including third-party
complaints but does not separately categorize charges filed by third
parties from those filed by the aggrieved individuals themselves.
Even when the source of the complaint is a third party, the charge
will be filed on behalf of an individual alleged to be aggrieved. For
example, our data base includes charges filed by parents on behalf of
minors; family members or others on behalf of individuals who cannot or
are reluctant to file a charge; organizations such as disability rights
advocates or other civil rights groups; and attorneys for their
clients.
Question 5c. Since 2010, please provide a list in a sortable
Microsoft Excel Spreadsheet of all litigation by year, including non-
systemic litigation, based on a:
1. commissioner's charge;
2. directed investigation; and
3. any other charges filed by someone other than the aggrieved
party.
Answer 5c. Attached is the spreadsheet of litigation.
ADEA and EPA Directed Investigations FY 2010 through June 10, 2015
--------------------------------------------------------------------------------------------------------------------------------------------------------
Was the
conciliation
Fiscal year Staff function Status code Statute Basis Issue Closure action failure
litigated?
--------------------------------------------------------------------------------------------------------------------------------------------------------
FY 2010...................... Systemic........ C............... ADEA............ Age............. Layoff......... No Cause ...............
Finding Issued.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Benefits....... Conciliation No
Failure.
FY 2010...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... No Cause
PFemale. Finding Issued.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Referral, Successful
Hiring. Conciliation.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Benefits- No Cause
Retirement/ Finding Issued.
Pension.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Benefits- No Cause
Retirement/ Finding Issued.
Pension.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Benefits- Conciliation No
Retirement/ Failure.
Pension.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Benefits- Conciliation No
Retirement/ Failure.
Pension.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Benefits- Conciliation No
Retirement/ Failure.
Pension.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Benefits- Conciliation No
Retirement/ Failure.
Pension.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Terms/ No Jurisdiction
PConditions,
PBenefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Terms/ No Jurisdiction
PConditions,
PBenefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Benefits, Terms/ No Jurisdiction
Conditions.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Terms/ No Jurisdiction
PConditions,
PBenefits.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Retirement--PIn Administrative
voluntary. Closure.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Retirement--PIn Conciliation
voluntary. Failure.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Referral....... Successful
Conciliation.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Hiring......... CP Withdrawal-
No Ben..
FY 2010...................... Systemic........ O............... ADEA............ Age............. Discharge, Ongoing........
PTesting.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Advertising, Successful
PHiring, Other. Conciliation.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Successful
PAdvertising. Conciliation.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Discipline, No Cause
PDischarge, Finding Issued.
PDemotion,
PConstructive
PDischarge.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2010...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Settlement With
Benefits.
FY 2010...................... Systemic........ C............... ADEA............ Age............. Hiring......... Settlement With
Benefits.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Hiring......... Conciliation Yes
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Benefits- Successful
Retirement/ Conciliation.
Pension.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Benefits- Conciliation Yes
Retirement/ Failure.
Pension.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Benefits- Conciliation Yes
Retirement/ Failure.
Pension.
FY 2011...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Settlement With
Female. Benefits.
FY 2011...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Administrative
Female. Closure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Referral....... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... No Jurisdiction
FY 2011...................... Systemic........ C............... ADEA............ Age............. Hiring, Settlement With
Promotion, Benefits.
Terms/
Conditions,
Wages,
Discharge.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Assignment..... No Cause
Finding Issued.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... CP Withdrawal-
No Ben.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age, Other...... Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... CP Withdrawal-
No Ben.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Administrative
Advertising. Closure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Successful
Exclusion. Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... EPA............. Equal Pay--Male. Wages.......... No Cause
Finding Issued.
FY 2011...................... Not Systemic.... C............... EPA............. Equal Pay--Male. Wages.......... No Cause
Finding Issued.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Administrative
Advertising. Closure.
FY 2011...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Administrative
Female. Closure.
FY 2011...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2011...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2011...................... Systemic........ O............... ADEA............ Age............. Discharge, Ongoing........
Wages,
Promotion,
Terms/
Conditions,
Hiring.
FY 2011...................... Systemic........ C............... EPA............. Retaliation, Wages.......... Successful
Equal Pay-- Conciliation.
Female.
FY 2011...................... Systemic........ C............... ADEA............ Retaliation, Age Union Successful
Representation Conciliation.
, Terms/
Conditions.
FY 2011...................... Systemic........ O............... ADEA............ Age............. Hiring, Ongoing........
Advertising.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Settlement With
Benefits.
FY 2011...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2011...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2011...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2011...................... Systemic........ O............... EPA............. Equal Pay-- Wages.......... Ongoing........
Female.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Benefits- Successful
Retirement/ Conciliation.
Pension, Terms/
Conditions,
Early
Retirement
Incentive.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Hiring, Layoff. No Cause
Finding Issued.
FY 2011...................... Systemic........ R............... ADEA............ Age............. Benefits- Successful
Retirement/ Conciliation.
Pension, Terms/
Conditions,
Early
Retirement
Incentive.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Ongoing........ Conciliation Yes
Failure.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Early Settlement With
Retirement Benefits.
Incentive,
Terms/
Conditions,
Benefits-
Retirement/
Pension.
FY 2011...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2011...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2011...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2011...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Administrative
Female. Closure.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2011...................... Systemic........ C............... ADEA............ Age............. Advertising, Settlement With
Hiring. Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2011...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Referral. Conciliation.
FY 2012...................... Systemic........ C............... ADEA............ Age............. Advertising, No Jurisdiction
Hiring.
FY 2012...................... Systemic........ O............... ADEA............ Age............. Benefits.......
FY 2012...................... Systemic........ C............... EPA............. Retaliation..... Intimidation, Successful
Constructive Conciliation.
Discharge,
Terms and
Conditions.
FY 2012...................... Systemic........ C............... ADEA............ Retaliation, Age Terms/ Successful
Conditions, Conciliation.
Constructive
Discharge.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Benefits- Conciliation Yes
Retirement/ Failure.
Pension.
FY 2012...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Settlement With
Female. Benefits.
FY 2012...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Settlement With
Female. Benefits.
FY 2012...................... Systemic........ O............... EPA............. Equal Pay-- Wages.......... Ongoing........
Female.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2012...................... Systemic........ C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2012...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2012...................... Systemic........ C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2012...................... Systemic........ O............... ADEA............ Age............. Discharge, Ongoing........
Hiring,
Promotion.
FY 2012...................... Systemic........ O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Administrative
Closure.
FY 2012...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Administrative
Female. Closure.
FY 2012...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Administrative
Female. Closure.
FY 2012...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Administrative
Female. Closure.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Administrative
Closure.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... No Jurisdiction
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... CP Withdrawal-
No Ben..
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... CP Withdrawal-
No Ben..
FY 2012...................... Systemic........ O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2012...................... Systemic........ O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Layoff......... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Layoff......... Settlement With
Benefits.
FY 2012...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... Successful
Female. Conciliation.
FY 2012...................... Systemic........ L............... ADEA............ Age............. Benefits- Conciliation No
Retirement/ Failure.
Pension.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Layoff, Hiring. No Cause
Finding Issued.
FY 2012...................... Not Systemic.... O............... EPA............. Equal Pay-- Wages.......... Ongoing........
Female.
FY 2012...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2012...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2012...................... Systemic........ C............... EPA............. Equal Pay-- Benefits, Wages Successful
Female. Conciliation.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Settlement With
Hiring. Benefits.
FY 2012...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Administrative
Female. Closure.
FY 2012...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2012...................... Systemic........ O............... ADEA............ Age............. Recall, Hiring. Ongoing........
FY 2012...................... Systemic........ R............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... CP Withdrawal-
No Ben..
FY 2012...................... Systemic........ O............... ADEA............ Age............. Hiring, Ongoing........
Demotion,
Discharge.
FY 2012...................... Systemic........ O............... EPA............. Equal Pay-- Wages.......... Ongoing........
Female.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Hiring, No Cause
Advertising. Finding Issued.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Settlement With
Hiring. Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Successful
Advertising. Conciliation.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... No Jurisdiction
FY 2012...................... Systemic........ C............... EPA............. Equal Pay-- Wages.......... Conciliation No
Female. Failure.
FY 2012...................... Systemic........ C............... EPA............. Other........... Wages.......... No Cause
Finding Issued.
FY 2012...................... Systemic........ R............... EPA............. Other........... Wages.......... Settlement With
Benefits.
FY 2012...................... Systemic........ O............... EPA............. Equal Pay-- Wages.......... Ongoing........
Female.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Hiring, No Cause
Promotion. Finding Issued.
FY 2012...................... Systemic........ O............... ADEA............ Age............. Other.......... Ongoing........
FY 2012...................... Systemic........ C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2012...................... Systemic........ O............... ADEA............ Age............. Discipline, Ongoing........
Hiring.
FY 2012...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Administrative
Female. Closure.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Administrative
Closure.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Systemic........ C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2012...................... Systemic........ C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... No Jurisdiction
FY 2013...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2013...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2013...................... Not Systemic.... C............... EPA............. Equal Pay--Male; Wages.......... Settlement With
Equal Pay-- Benefits.
Female.
FY 2013...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2013...................... Not Systemic.... O............... EPA............. Equal Pay-- Wages.......... Ongoing........
Female.
FY 2013...................... Systemic........ O............... EPA............. Equal Pay-- Wages.......... Ongoing........
Female.
FY 2013...................... Systemic........ C............... ADEA............ Age............. Advertising, Settlement With
Hiring. Benefits.
FY 2013...................... Systemic........ C............... ADEA............ Age............. Advertising, Settlement With
Hiring. Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Promotion, Settlement With
Hiring. Benefits.
FY 2013...................... Not Systemic.... O............... ADEA............ Age, Other...... Harassment, Ongoing........
Terms/
Conditions.
FY 2013...................... Systemic........ C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2013...................... Systemic........ O............... ADEA............ Age............. Benefits....... Ongoing........
FY 2013...................... Systemic........ O............... ADEA............ Age............. Benefits....... Ongoing........
FY 2013...................... Systemic........ O............... ADEA............ Age............. Benefits....... Ongoing........
FY 2013...................... Systemic........ O............... ADEA............ Age............. Benefits....... Ongoing........
FY 2013...................... Systemic........ O............... ADEA............ Age............. Benefits....... Ongoing........
FY 2013...................... Systemic........ O............... ADEA............ Age............. Benefits....... Ongoing........
FY 2013...................... Systemic........ O............... ADEA............ Age............. Benefits....... Ongoing........
FY 2013...................... Systemic........ O............... ADEA............ Age............. Benefits....... Ongoing........
FY 2013...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2013...................... Systemic........ C............... ADEA............ Age............. Hiring......... Settlement With
Benefits.
FY 2013...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Benefits, Terms/ Successful
Conditions. Conciliation.
FY 2013...................... Systemic........ O............... ADEA............ Age............. Benefits, Terms/ Ongoing........
Conditions.
FY 2013...................... Systemic........ O............... ADEA............ Age............. Terms/ Ongoing........
Conditions,
Benefits.
FY 2013...................... Systemic........ O............... ADEA............ Age............. Benefits, Terms/ Ongoing........
Conditions.
FY 2013...................... Systemic........ O............... ADEA............ Age............. Terms/ Ongoing........
Conditions,
Benefits.
FY 2013...................... Systemic........ O............... ADEA............ Age............. Terms/ Ongoing........
Conditions,
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Terms/ Successful
Conditions, Conciliation.
Benefits.
FY 2013...................... Systemic........ C............... ADEA............ Age............. Benefits, Terms/ Successful
Conditions. Conciliation.
FY 2013...................... Systemic........ C............... ADEA............ Age............. Terms/ Successful
Conditions, Conciliation.
Benefits.
FY 2013...................... Systemic........ O............... ADEA............ Age............. Terms/ Ongoing........
Conditions,
Benefits.
FY 2013...................... Systemic........ O............... ADEA............ Age............. Terms/ Ongoing........
Conditions,
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Other.. Settlement With
Benefits.
FY 2013...................... Systemic........ C............... EPA............. Retaliation, Filing EEO Successful
Equal Pay-- Forms, Union Conciliation.
PFemale. Representation
, Terms and
Conditions.
FY 2013...................... Systemic........ C............... ADEA............ Retaliation, Age Filing EEO Successful
Forms, Union Conciliation.
Representation
, Terms and
Conditions.
FY 2013...................... Systemic........ C............... EPA............. Retaliation, Filing EEO Successful
Equal Pay-- Forms, Union Conciliation.
PFemale. Representation
, Terms and
Conditions.
FY 2013...................... Systemic........ C............... ADEA............ Retaliation, Age Union Successful
Representation Conciliation.
, Terms/
Conditions.
FY 2013...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... No Cause
Female. Finding Issued.
FY 2013...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... No Cause
Female, Equal Finding Issued.
Pay--Male.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2013...................... Systemic........ C............... ADEA............ Age............. Hiring......... Settlement With
Benefits.
FY 2014...................... Systemic........ O............... ADEA............ Age............. Discharge, Ongoing........
Discipline,
Layoff,
Discharge.
FY 2014...................... Systemic........ O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2014...................... Not Systemic.... C............... EPA............. Equal Pay-- Wages.......... Administrative
Female. Closure.
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2014...................... Not Systemic.... O............... EPA............. Equal Pay-- Wages.......... Ongoing........
Female.
FY 2014...................... Systemic........ O............... EPA............. Equal Pay-- Wages.......... Ongoing........
Female.
FY 2014...................... Systemic........ C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2014...................... Systemic........ C............... ADEA............ Age............. Hiring......... Conciliation No
Failure.
FY 2014...................... Systemic........ C............... ADEA............ Age............. Assignment..... Administrative
Closure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... No Jurisdiction
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring, No Cause
Advertising. Finding Issued.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Successful
Advertising. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Conciliation No
Hiring. Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Conciliation No
Hiring. Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Successful
Advertising. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Conciliation No
Hiring. Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Successful
Advertising. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Successful
Advertising. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Conciliation No
Hiring. Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Successful
Advertising. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Conciliation No
Hiring. Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, No Jurisdiction
Hiring.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Conciliation No
Hiring. Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Administrative
Hiring. Closure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Conciliation No
Hiring. Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Administrative
Closure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... No Jurisdiction
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... No Jurisdiction
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... No Cause
Finding Issued.
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... No Cause
Finding Issued.
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2014...................... Systemic........ C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Systemic........ O............... EPA............. Equal Pay-- Wages.......... Ongoing........
Female.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Advertising, Ongoing........
Hiring.
FY 2014...................... Systemic........ C............... ADEA............ Age............. Advertising, No Jurisdiction
Hiring.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Systemic........ O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2014...................... Systemic........ O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... No Jurisdiction
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... No Jurisdiction
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring, Successful
Qualifications. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Conciliation No
Hiring. Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Settlement With
Hiring. Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Settlement With
Benefits.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Conciliation No
Failure.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2014...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2015...................... Systemic........ O............... ADEA............ Age............. Terms/ Ongoing........
Conditions,
Promotion,
Discharge,
Hiring.
FY 2015...................... Systemic........ O............... ADEA............ Age............. Benefits, Ongoing........
Discharge,
Constructive
Discharge,
Assignment,
Promotion,
Hiring,
Retirement--In
voluntary,
Terms/
Conditions,
Layoff, Other.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Administrative
Hiring. Closure.
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Benefits- Ongoing........
Insurance,
Terms/
Conditions.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Administrative
Closure.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... No Jurisdiction
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Conciliation No
Failure.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Administrative
Closure.
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Advertising.... Ongoing........
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising.... Successful
Conciliation.
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... No Cause
Finding Issued.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Advertising, Successful
Hiring. Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Hiring......... Ongoing........
FY 2015...................... Not Systemic.... C............... ADEA............ Age............. Hiring......... Successful
Conciliation.
FY 2015...................... Not Systemic.... O............... ADEA............ Age............. Terms/ Ongoing........
Conditions,
Wages, Hiring,
Discharge.
--------------------------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Jurisdictional basis Monetary Number of On
Case name Filed Resolved Court Civil action # of suit Systemic? Resolution benefits beneficiaries Non-monetary relief appeal?
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
PBM Graphics, Inc................. 9/29/2011 12/19/2012 MDNC................. 1:11-cv-805.......... Commissioner's charge Y................... Consent PDecree..... $334,000 61 All new contracts N
P(Leslie PSilverman). entered into
between Defendant
and temporary
agencies at Durham
facility will state
that Defendant is
an equal employment
opportunity
employer. Defendant
shall distribute
specified
legitimate,
nondiscriminatory
criteria to all
Durham facility
managers and
supervisors
involved with the
selection of
temporary workers
into the
``returning or
regular'' group of
temporary workers.
Defendant shall
distribute
specified
legitimate,
nondiscriminatory
criteria to all
Durham facility
managers and
supervisors
involved with the
assignment of hours
of temporary
workers. Defendant
shall maintain,
redistribute, and
post two specified
EEO policies.
Defendant shall
provide annual
Title VII training.
Defendant shall
post Employee
Notice. Defendant
shall maintain
specified records
and provide two
reports.
Rosebud Restaurants, Inc.......... 09/17/13 NDIL................. 13-cv-6656........... Commissioner's charge Y................... .................... ...........
(Constance Barker).
Source One Staffing, Inc.......... 03/04/15 05/06/15 NDIL................. 15-cv-1958........... Commissioner's charge Y................... Consent PDecree..... $800,000 7,304 Injunction against N
(Chai Feldblum). discrimination and
retaliation. The
decree also
requires Defendant
to: (1) train its
employees on
employee rights
under Title VII and
the ADA; (2) report
complaints of
discrimination
during the decree's
3-year term; (3)
change its
employment policies
and practices to
conform to the ADA
and Title VII; and
(4) post a notice
of the Decree at
all of its
locations.
PMT Corporation................... 03/06/14 DMN.................. 0:14-cv-00599........ Commissioner's charge Y................... ..................
(Victoria Lipnic)/
Directed ADEA
investigation.
Minnesota Board of Public Defense. 1/25/2012 4/26/2012 DMN.................. 12-cv-00205-RHK-FLN.. Directed ADEA Y................... Consent Decree..... $53,514 4 .................. N
investigation.
Minnesota Dept. of Commerce....... 9/26/2011 11/9/2011 DMN.................. 11-cv-2746-JNE-AJB... Directed ADEA Y................... Consent Decree..... $8,925 1 .................. N
investigation.
Minnesota Dept. of Natural 9/26/2011 11/7/2011 DMN.................. 11-cv-2745-JNE-AJB... Directed ADEA Y................... Consent Decree..... $84,517 1 .................. N
Resources. investigation.
Hill Country Farms, Inc........... 4/6/2011 6/11/2013 SDIA................. 3:11-cv-00041........ Third party charge by Y................... Judgment upon $3,406,431 32 The Order included N
sister of aggrieved remittitur of jury an injunction was
individual. verdict. ordered, including
non-discrimination,
accommodation and
training, was
ordered against any
future business
operations of the
employer or a
successor employer.
Bass Pro Shops.................... 9/21/2011 SDTX................. 4:11-cv-03425........ Commissioner's charge Y................... .................. .................. N
(Stuart Ishimaru).
Jacksonville Ass'n of 4/30/2012 MDFL................. 3:12-cv-00491........ Commissioner's charge Y................... .................. .................. N
Firefighters, Local 122, IAFF. (Stuart Ishimaru).
Texas Roadhouse................... 9/30/2011 DMA.................. 11-11732............. Directed ADEA Y................... .................. .................. N
investigation.
FAPS INC.......................... 6/17/2010 DNJ.................. 2:10CV03095.......... Commissioner's charge Y................... .................. .................. N
(Stuart Ishimaru).
Presrite Corporation.............. 2/4/2011 4/24/2013 NDOH................. 1:11cv00260.......... Commissioner's charge Y................... Consent Decree..... $700,000 140 Defendant will offer N
(Christine Griffin). jobs to no fewer
than 40 women.
Defendant will give
those females
priority
consideration and
offer them jobs
before any current
applicants, prevent
future
discrimination
through periodic
reports to EEOC
disclosing the
number of females
and males who
applied as compared
to those who were
hired; mandatory
training; and
retention of
applicant and
employment records,
including creating
and producing
electronic data.
The decree includes
an injunction
prohibiting
Defendant from
discriminating
against women in
the recruiting and
hiring process and
compelling the
company to make all
good-faith,
reasonably
necessary efforts
to find female
candidates to fill
vacancies in
laborer or
operative positions.
Murphy School District #21........ 4/7/2014 DAZ.................. 2:14-CV-00721-SRB.... Directed ADEA Y................... .................. .................. N
investigation.
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Question 6. EEOC received 88,778 charges in fiscal year 2014. At
the hearing you stated in fiscal year 2014 EEOC resolved about 87,000
charges. This is the lowest number of charges resolved since fiscal
year 2010, despite higher numbers of charge receipts in those years. In
fact, in fiscal year 2010, EEOC received 99,922 charges and resolved
104,999; in fiscal year 2011, EEOC received 99,947 charges and resolved
112,499; in fiscal year 2012, EEOC received 99,412 charges and resolved
111,139; and in fiscal year 2013, EEOC received 93,727 and resolved
97,252. While EEOC's budget has fluctuated some between fiscal year
2010 and 2014, it has generally remained stable. Please explain why the
number of charge resolutions dropped significantly in 2014, especially
in light of the lower number of receipts that year as well.
Answer 6. Significant rescissions in EEOC's budget, specifically
$734,606 in fiscal year 2011 and $26 million in fiscal year 2013,
considerably reduced our investigative capabilities. The fiscal year
2011 rescission--coupled with cost-of-living and step increases and
associated increases in benefits for EEOC personnel as well as rising
rents--triggered a 3-year hiring freeze that lasted into fiscal year
2014. Since EEOC's fixed operating costs--including compensation,
benefits, and rent--consume 93 percent of its budget, even where the
budget remains relatively flat, this requires the agency to reduce its
staffing level to account for increases in salary, benefits, and rent.
These factors, together with the government shutdown in the first
quarter of fiscal year 2014, and the $26 million rescission in fiscal
year 2013, contributed to a decrease in the number of charges resolved
in fiscal year 2014.
The agency is committed to investing in staff and systems to
strengthen our enforcement, deliver excellent service to the public,
and promote compliance with Federal civil rights laws. In fact, EEOC
reduced its pending inventory to 77,424 charges during the second
quarter of fiscal year 2015.
This reflects a 1 percent decline in our inventory over a single 3
month period, despite a 5 percent increase in the number of charges
filed during the first two quarters of fiscal year 2015, as compared to
fiscal year 2014.
EEOC staff resolved a total of 43,561 charges during the first two
quarters of this fiscal year. This includes 23,564 charges in the
second quarter, which is 7 percent more than in the first quarter, when
we resolved 19,997 charges. Compared to the same period last year, EEOC
increased its charge resolutions by 15 percent--43,561 at the end of
second quarter fiscal year 2015 versus 37,928 at the end of second
quarter fiscal year 2014.
We attribute this positive trend in our pending charge inventory to
several factors, including hiring new staff beginning in mid-fiscal
year 2014, increased staff productivity, and a continued emphasis on
effective and efficient case management. The impact of 2014 hiring,
however, occurred too late in the year to significantly affect
resolutions. As newly hired investigators and other enforcement
employees complete their training, they are reaching full productivity
and contributing to inventory reduction efforts. Even as we received
more new charges during the quarter, we made steady progress both in
handling newly filed charges and in resolving those pending in the
inventory.
Question 7. EEOC has issued significant and controversial guidance
without allowing the public to comment on the draft guidance. In March,
the Supreme Court questioned the ``timing, consistency, and
thoroughness'' of EEOC guidance. Next time you plan to issue guidance,
will you let the public have the opportunity to first review and
comment on a draft before it is finalized?
Answer 7. The Commission is exploring a process to provide the
public with an opportunity to review and provide input on proposed
subregulatory guidance documents before they are final. This effort
builds upon the avenues the agency has used to receive public input.
For example, EEOC frequently holds Commission meetings before issuing
guidance. We request public feedback during and in the 15 days after
those meetings and carefully consider the feedback provided.
Further, EEOC posts its final guidance online and provides a means
for public comment there. The Commission is consulting with Federal
agencies that have established processes for requesting public input on
proposed subregulatory guidance documents to identify effective
practices for obtaining additional public input while efficiently using
agency resources. Concurrently, we are looking into the kinds of
guidance documents that may be appropriate for additional public input.
We will keep you apprised of our progress.
Question 8a. Given the Supreme Court's decision in Mach Mining,
what do you believe EEOC now has to do to fulfill its conciliation
obligations?
What steps have you taken at EEOC to ensure future conciliations
comply with Mach Mining?
Answer 8a. The Supreme Court's decision in Mach Mining LLC v. EEOC,
135 S.Ct. 1645 (2015), provides needed clarity across the courts
concerning the standards for judicial review of EEOC's conciliation
efforts. In Mach Mining, the Supreme Court held that in assessing the
Commission's conciliation efforts, a reviewing court may consider two
things: (1) whether EEOC informed the employer about the specific
allegation(s), describing what the employer has done and which
employees (or class of employees) have suffered as a result; and (2)
whether EEOC tried to communicate with the employer to give the
employer an opportunity to remedy the alleged discrimination. It has
been EEOC's practice to take these steps, and I recently re-affirmed
these instructions to all field staff engaged in conciliation efforts
following the Mach Mining decision. In addition, this May at a systemic
investigators and coordinators training, participants discussed current
conciliation practices to ensure the agency continues to engage in the
steps outlined in the Mach Mining decision. We are also adding guidance
on the Mach Mining decision to the training materials for current
investigators who receive Intermediate Skills Training, to the New
Investigator Training, and to a webinar on conciliations for EEOC
staff.
Question 8b. Your testimony stated that the ``Commission . . . will
ensure that additional guidance and training for EEOC staff further
advances the agency's effectiveness in [its] conciliation efforts.''
What, specifically, will this training and guidance include?
Answer 8b. EEOC already has begun training on effective
conciliation practices, and we will prioritize continued training on
these issues. This August, the New Investigators Training Program, a 2-
week program for newly hired EEOC investigator staff nationwide, will
deliver an updated segment on conciliation, settlement, and negotiation
skills. This training will afford investigators hands-on experience
through exercises involving a case study of conciliation. Our
Intermediate Skills Training Program for experienced investigators
includes model conciliation techniques and will be completed by all of
our offices in fiscal year 2016. In addition, we are developing an
agency-wide webinar focused solely on conciliation, which we will
deliver to investigators, attorneys, and other field and headquarters
staff. This training will cover best practices, including steps for
conducting effective conciliations in systemic cases.
Question 9a. In fiscal year 2013 and 2014, the Commission voted on
litigation decisions in only 16 and 17 cases, respectively. This is
just barely more than the 15 required. Do you believe the Commission
should vote on additional litigation decisions?
Answer 9a. The current delegation of litigation authority, adopted
on a bipartisan basis, carefully balances the need for Commission
oversight with the benefits of streamlined operations. With the goal of
increasing the efficiency and effectiveness of its enforcement
programs, a unanimous Commission delegated litigation authority to the
General Counsel in the 1996 National Enforcement Plan. This action
enabled the Commission to focus more of its time on significant policy
issues.
In the 2012 Strategic Enforcement Plan (``SEP''), the Commission,
on a bi-partisan basis, reaffirmed that delegation of authority, which
requires that the Commission approve decisions to commence or intervene
in litigation in significant cases that: (1) require a major
expenditure of resources; (2) address a developing area of law; or (3)
raise issues of public controversy. Further, the Commission must review
and approve all recommendations for EEOC to participate as amicus
curiae. In addition, the 2012 SEP added a further requirement directing
that each EEOC district office present a minimum of one litigation
recommendation for Commission consideration each fiscal year, including
litigation recommendations based on the above criteria. The 2012 SEP
also established quarterly reports and meetings to continually assess
the success of the delegated authority. In addition, the General
Counsel has consistently followed the delegation rules. The Commission
has regularly concurred with the General Counsel's litigation
recommendations. Of the 48 cases that the General Counsel submitted to
the Commission from fiscal years 2011 through 2014, the Commission
voted to approve all but one, and the General Counsel withdrew one
litigation recommendation, following a tie vote.
Question 9b. If not, is the Commission unable to handle voting on
additional litigation decisions? If so, why?
Answer 9b. The current delegation criteria strike an appropriate
balance by requiring Commission approval of significant litigation
where review is warranted, while ensuring that the agency uses its
resources efficiently. Although the Commission could, and has in the
past, reviewed additional litigation recommendations, this takes time
from considering significant policy matters that could provide a
substantial benefit in aiding employers and employees in understanding
the law and preventing discrimination from occurring.
Question 10. The Commission is required to vote on decisions that
``require a major expenditure of resources.'' What do you consider to
be a major expenditure of resources?
How does EEOC determine if a case will involve a major expenditure
of resources--is there a policy in place?
If so, please provide the policy. If not, please explain why you do
not have a policy and whether you will consider if a policy is
necessary.
Answer 10. In determining whether cases ``require a major
expenditure of resources,'' the Office of General Counsel carefully
examines case cost estimates to understand their basis and makes
adjustments, as necessary. Such determinations are reached on a case-
by-case basis. The General Counsel generally submits to the Commission
all cases that he believes will require expenditures of more than
$100,000.
Question 11. In a September 2014 report, the EEOC Inspector General
identified that EEOC does not have an adequate system in place to
safeguard classified information. What are you doing to address the
Inspector General's finding to make sure classified information is
properly handled?
Answer 11. EEOC works with classified information during the
Federal sector EEO process. This information is maintained in paper-
based files or off-network only because EEOC does not have a classified
network infrastructure. As noted in the Office of Inspector General
September 2014 Semi-annual Report to Congress, at that time, EEOC did
not have formal, documented policies and procedures to address the
safeguarding, transfer, storage, or disposal of classified information.
The Office of the Chief Financial Officer and the Office of the Chief
Human Capital Officer jointly have developed a corrective action plan,
which outlines formal documented policies and procedures to ensure that
the 18 staff that currently can access classified information are
safeguarding, transferring, storing, and disposing of it properly. In
addition, I have designated the Deputy Chief Operating Officer as the
senior agency official responsible for managing the Agency's classified
national security information program in accordance with Executive
Order 13526.
Question 12a. In fiscal year 2014, EEOC hired nine social science
research experts to support its systemic investigations. What are the
job requirements and duties of an EEOC social science research expert?
Answer 12a. The position of social scientist at EEOC requires a 4-
year degree in a behavioral or social science, 4 years of relevant
experience, or some combination of the two. EEOC's social scientists
provide guidance and direction to senior-level management,
investigators, and trial attorneys on the quantitative analysis of
employment discrimination investigations, especially with respect to
social science methodology and employee selection processes. For
example, our social scientists apply statistical/quantitative
techniques and research design principles to analyze whether the data
gathered during an investigation reflects statistical evidence of
discrimination at a specific employer or union. Social scientists also
apply the same knowledge and skills to analyzing data and conducting
and interpreting studies to inform Commission goals and policies, to
measure our effectiveness as an agency, and to provide information to
the public concerning employment patterns, such as demographics and
occupational trends. For example, in commemoration of the agency's 50th
Anniversary, EEOC released American Experiences versus American
Expectations, a report that examines private sector participation rates
of women and minorities using EEO-1 data.
Question 12b. Do the social science research experts work to reduce
the backlog?
Answer 12b. Social scientists at EEOC help reduce the pending
inventory of active charges by analyzing relevant quantitative
information developed in an investigation to determine whether the
evidence supports the allegations at issue. The primary
responsibilities of EEOC's social scientists are to develop statistical
analyses, review employment practices, assist with the collection of
relevant information from electronic databases as part of the
investigation of charges, and offer analysis relevant to allegations of
employment discrimination.
Question 13. Fiscal Year 2014's PAR stated that the Employees'
Viewpoint Survey found EEOC employees ``continue to express concern
about disclosing a suspected violation of any law, rule, or regulation
[to EEOC management] without fear of reprisal.'' Your testimony
indicates that it's a priority to educate all employers about how to
prevent retaliation in the workplace. What are you doing, specifically,
to ensure EEOC employees feel comfortable reporting unlawful behavior
to EEOC management?
Answer 13. Ensuring that employees of EEOC feel comfortable coming
forward to report concerns or violations of the law is a high priority.
On June 17, I issued the agency's annual internal statement on
preventing harassment and retaliation of EEOC employees, in conjunction
with the Commission meeting entitled, ``Retaliation in the Workplace:
Causes, Remedies and Strategies for Prevention.'' This statement
emphasized that,
``I am firmly committed to ensuring that EEOC is a
retaliation-free workplace and that employees feel free to
report issues of concern without fear of retaliation or
reprisal.''
Additionally, I have emphasized the importance of these issues
consistently with our leadership. For example, in April, I convened a
meeting of EEOC's senior staff, during which we discussed concerns
about fear of reprisal reflected in the Employee Viewpoint Survey. I
stressed to our leaders the importance of identifying the reasons for
this perception and taking concrete steps to foster an environment
where employees feel free to come forward with concerns without fear of
reprisal.
In fiscal year 2013, EEOC rolled out Diversity and Inclusion
program training to senior leaders, supervisors, and managers. Since
2014 we have been deploying this training to non-supervisory employees.
These sessions provide employees an opportunity to share their ideas
for creating a more inclusive work environment and ensuring that
prohibited personnel practices, including retaliation, are not
tolerated. Once this training is complete, we will implement new
practices based on employee feedback.
In addition, as part of our commitment to address retaliation and
reprisal, in fiscal year 2015, EEOC began providing agency-wide
training on preventing harassment in the workplace. This training
establishes a system of accountability for ensuring a workplace free
from unlawful harassment based on race, color, religion, sex, national
origin, age, and disability. During this training, we also emphasize
that EEOC will not tolerate retaliation against any employee for
reporting matters under this policy or for assisting in any inquiry
about such a report.
Further, our New Manager Training and Fundamentals of Performance
Management courses, delivered in conjunction with the Office of
Personnel Management, include a module on prohibited personnel
practices and merit system principles, as well as harassment and
retaliation.
We provide training on the No FEAR Act (NFA) to all agency staff
every 2 years, as required by law, as well as to new employees within
90 days of their entry into service with EEOC. I am committed to
ensuring that all managers are aware of their responsibilities and that
employees know their rights as identified under the NFA, including
freedom from retaliation.
To more broadly address concerns raised by the Federal Employee
Viewpoint Survey, EEOC launched the BEST initiative--Building Employee
Satisfaction Together. As part of that initiative, in fiscal year 2015
and fiscal year 2016, we will incorporate a substantive discussion of
retaliation and prohibited personnel practices in training to all
employees and in our mandatory training for managers and supervisors.
Specifically, our final quarterly Employee Education Webinars and
Webinars for Managers and Supervisors for this fiscal year will address
retaliation and prohibited personnel practices.
Question 14. Last year, a court dismissed a case EEOC filed against
CVS because it failed to first try to conciliate the claim. EEOC
admitted in the case it did not attempt to conciliate the claim and
instead took the position it didn't need to conciliate claims in this
case. Why did EEOC take this position?
Has EEOC always had the position that it did not need to conciliate
certain claims?
Do you intend to bring more cases without attempting to conciliate
them first?
Answer 14. EEOC's claim in the CVS action was that the employer
conditioned receipt of severance pay on execution of a separation
agreement that contained language that deterred employees from filing
discrimination charges with EEOC and State Fair Employment Practice
Agencies and interfered with employees' ability to communicate
voluntarily with EEOC and the State agencies. The case was brought
under section 707 of Title VII, which authorizes EEOC to bring suit to
enjoin employers from ``engag[ing] in a pattern or practice of
resistance to the full enjoyment of [Title VII rights].'' EEOC's suit
alleged that CVS's use of the separation agreement constituted such
resistance under section 707, and asked the court to enjoin CVS from
further use of the separation agreement. No monetary relief was sought
from CVS.
Although EEOC did attempt to resolve the matter with CVS prior to
filing suit, EEOC's position is that suits brought under section 707 to
enjoin practices that constitute resistance to the full enjoyment of
title VII rights do not require either a charge of discrimination or
conciliation efforts. EEOC also brings suits under section 707 based on
charges of discrimination that allege violations of sections 703 or 704
of Title VII. EEOC has always attempted to conciliate such claims prior
to bringing suit and will continue to do so.
EEOC had not taken a position prior to CVS on whether actions under
section 707 to enjoin resistance to the enjoyment of title VII rights
required conciliation efforts. However, we have argued the general
principle that some of the administrative prerequisites to filing a
suit do not apply under Section 707. See EEOC Reply Brief in Serrano &
EEOC v. Cintas Corp., filed July 11, 2011, available at: http://
www.eeoc.gov/eeoc/litigation/briefs/cintas1.txt.
EEOC appreciates the importance of resolving matters short of court
action, and as in CVS the agency always attempts to settle claims
voluntarily even where we do not believe conciliation is required by
statute. EEOC actions to enforce prior resolutions, such as
conciliation agreements and consent decrees, are not subject to
statutory conciliation requirements (because they are brought to
enforce provisions of the agreements rather than of a statute); but
here as well the agency always attempts to obtain voluntary compliance
prior to filing suit.
Question 15a. In 2011, EEOC began an investigation of
Massachusetts-based Marylou's Coffee for alleged age discrimination.
Was that investigation based on a complaint?
Answer 15a. EEOC's Boston Area Office filed an ADEA directed charge
against Marylou's Coffee on February 28, 2011. The charge was closed on
October 21, 2012, with a finding that there was no reasonable cause to
believe that discrimination occurred based upon evidence obtained in
investigation. Pursuant to our recordkeeping policy, we maintain charge
files up to 2 years after they are closed. Since this 2-year period
expired, no other information on the charge is available.
Question 15b. Is the investigation ongoing? If not, how and when
was it resolved?
Answer 15b. The charge was closed on October 21, 2012, with a
finding that there was no reasonable cause to believe that
discrimination occurred.
Question 16. Earlier this year, Representative Tim Walberg (R-MI)
introduced the EEOC Transparency and Accountability Act (H.R. 550),
which would, among other things, require EEOC to report additional
statistics and figures in its annual Performance and Accountability
Report (PAR). Would you consider expanding the PAR to include the
following information:
a. The number of investigations initiated that fiscal year by a
directed investigation or commissioner's charge and the nature of the
alleged discrimination;
EEOC would be open to expanding the reporting in the PAR to include
information relating to the initiation of directed investigations or
the filing of Commissioner charges, along with a summary of the bases
and issues alleged in these charges/directed investigations during the
fiscal year.
b. The number of investigations ongoing that fiscal year initiated
by a directed investigation or commissioner's charge and the nature of
the alleged discrimination;
EEOC would be open to expanding the reporting in the PAR to include
information relating to the number of investigations ongoing during the
fiscal year that were initiated in prior years as directed
investigations or the filing of commissioner charges, along with a
summary of the bases and issues alleged in these charges/directed
investigations.
c. The number of lawsuits filed that fiscal year based on a
directed investigation or commissioner's charge and whether that
litigation decision was approved by a vote of the majority of the
commissioners;
EEOC would be open to expanding the reporting in the PAR to include
information relating to the number of lawsuits filed that fiscal year
based on a directed investigation or commissioner charge.
d. Each instance in which EEOC was ordered to pay attorney's fees
or court fees and costs or sanctioned by the court, including the
amount of such fees and costs ordered to be paid, the amount of fees
and costs actually paid by EEOC, and the reason for the fee or cost
award, regardless of whether EEOC is appealing the decision;
EEOC would be open to expanding the reporting in the PAR to include
a description of final attorney's fees awarded against the agency based
on the defendant having prevailed on the merits of EEOC's suit.
e. The number of cases of systemic discrimination brought in court
by EEOC under section 706 or 707 of the Civil Rights Act of 1964 and
the nature of the alleged discrimination; and
EEOC would be open to expanding the reporting in the PAR to include
the number of cases of systemic discrimination brought in court by EEOC
under section 706 or 707 of the Civil Rights Act of 1964, along with a
summary of the bases and issues alleged in the suit.
f. EEOC's success rate at the appellate level. If not, please
explain your reasoning for excluding each of those statistics.
EEOC would be open to expanding the reporting in the PAR to include
EEOC's success rate at the appellate level.
Question 17. EEOC's fiscal year 2014 PAR does not include
information about the percentage of favorable resolutions EEOC achieved
in circuit court. Please provide the number and percentage of favorable
resolutions EEOC achieved in circuit court in all cases and
specifically in merit cases since 2010. Please provide the same
information for district court cases.
Answer 17. The information concerning circuit court favorable
resolutions is being compiled and will be provided when it is
available.
The information concerning district court favorable resolutions is
as follows:
----------------------------------------------------------------------------------------------------------------
Fiscal Year Filed Favorable Percent
----------------------------------------------------------------------------------------------------------------
2010................................................ 286 266 93
2011................................................ 270 243 90
2012................................................ 247 227 92
2013................................................ 213 186 87
2014................................................ 136 126 93
----------------------------------------------------------------------------------------------------------------
senator paul
Question 1. Do EEOC personnel, including the Office of the
Inspector General, currently receive firearms training? Has EEOC
personnel received firearms training in the past?
Answer 1. EEOC has three GS-1811 criminal investigators who
investigate waste, fraud, and abuse. They are assigned to the Office of
Inspector General and receive quarterly training, including firearms
training, at the Federal Law Enforcement Training Center, as part of
the Criminal Investigator Training Program.
Question 2. Has EEOC ever purchased, provided, or accepted firearms
and ammunition of any type to its personnel for use, including for
firearms training, by its personnel?
Answer 2. EEOC's Office of Inspector General (OIG) has purchased
three firearms and ammunition to maintain the training qualifications
of the three GS-1811 criminal investigators, pursuant to the U.S.
Attorney General's Guidelines for Offices of Inspector General with
Statutory Law Enforcement Authority, issued December 8, 2003.
Question 3. If EEOC personnel are supplied with firearms, what
selection criteria are used to determine which employees are issued
firearms?
Answer 3. The only EEOC personnel authorized to be issued firearms
are the Office of Inspector General GS-1811 criminal investigators who
have been trained at the Federal Law Enforcement Training Center and
maintain their firearm qualifications standards.
Question 4. What is EEOC policy with regard to providing firearms
to its personnel and under what circumstances would an agent of EEOC
carry a firearm when discharging their duties?
Answer 4. EEOC's Office of Inspector General would allow only GS-
1811 criminal investigators to carry firearms, on a case-by-case basis
or in conjunction with a joint task force, when documentation supports
the need, a determination of need has been established, and the U.S.
Department of Justice has granted authorization.
senator collins
Question. Under title VII, only the Commission is authorized to
commence litigation. I understand, however, that the Commission has
delegated litigation authority (with a few exceptions) to the General
Counsel of the Commission. I further understand that the current
General Counsel, Mr. Lopez, has delegated much of his litigation
authority to the Commission's district offices. According to Mr. Lopez,
this delegation promotes ``an entrepreneurial approach'' to litigation
in the district offices. It appears that the Commission does not
authorize the vast majority of litigation filed by the EEOC. For
example, in fiscal year 2013, only 16 out of 131 cases (12 percent)
were brought to the Commission for a vote; in fiscal year 2014, only 17
out of 133 cases (13 percent) were brought to the Commission for a
vote. Yet one of the most significant duties of the Commission is to
determine when to initiate litigation. Given the importance of EEOC
litigation, please describe the justifications for the Commission's
current delegation of litigation authority to the General Counsel. In
addition, please describe the justifications for Mr. Lopez's further
delegation of that litigation authority to regional offices.
Answer. As noted in the earlier response, the current delegation of
litigation authority, adopted on a bi-partisan basis, carefully
balances the need for Commission oversight with the benefits of
streamlined operations. With the goal of increasing the efficiency and
effectiveness of its enforcement programs, a unanimous Commission
delegated litigation authority to the General Counsel in the 1996
National Enforcement Plan. This action enabled the Commission to focus
more of its time on significant policy issues.
In the 2012 Strategic Enforcement Plan, on a bi-partisan basis, the
Commission reaffirmed that delegation of authority and established
quarterly reports and meetings to continually assess the success of the
delegated authority. The Commission reaffirmed the delegation criteria
``with the goal of increasing the efficiency and effectiveness of the
agency's enforcement programs.''
Currently, the Commission must approve decisions to commence or
intervene in litigation in significant cases that: (1) require a major
expenditure of resources; (2) address a developing area of law; or (3)
raise issues of public controversy. In addition, the Commission must
review and approve all recommendations for EEOC to participate as
amicus curiae. The 2012 Strategic Enforcement Plan also directs that
each EEOC district office present a minimum of one litigation
recommendation for Commission consideration each fiscal year, including
litigation recommendations based on the above criteria.
Under the 1995 National Enforcement Plan, the General Counsel was
authorized and encouraged to redelegate litigation authority to the
regional attorneys, as appropriate, because it furthers efficiency,
enhances accountability, improves responsiveness to local issues, and
encourages the exercise of sound judgment. Note, however, all proposed
litigation--including those cases re-delegated to regional attorneys--
are reviewed by OGC prior to filing and, after such review, the OGC
sometimes modifies or advises the regional attorney to withdraw the
proposed litigation.
There is no difference in quality or success among cases voted on
by the Commission, delegated to the General Counsel, or delegated to
regional attorneys. Indeed, several significant successes have emerged
from cases approved by regional attorneys under delegated authority,
including the Supreme Court decision in EEOC v. Abercrombie & Fitch,
135 S. Ct. 2028 (2015), a landmark religious accommodation case, as
well as the $1.5 million jury verdict in EEOC v. New Breed Logistics,
783 F.3d 1057 (6th Cir. 2015), a multi-victim sexual harassment case
that was tried in Memphis, TN and affirmed on appeal.
senator roberts
Question 1. In February 2012, EEOC voted in its Strategic Plan to
adopt a Quality Control Plan to measure the quality of investigations
and conciliations. Since then the vote to implement this plan has been
delayed twice. EEOC's Inspector General (IG) said this should be a high
priority for the Commission as it could effectively and efficiently
reduce the backlog. What is the status of the QCP and when do you plan
to vote on it?
Answer 1. Ensuring the quality of EEOC's investigations and
conciliations is a high priority of mine, and I am working with my
fellow commissioners to gain consensus on a plan to strengthen the
quality of our work. While the previous Commission was unable to reach
consensus on a draft Quality Control Plan (QCP), the agency has
proceeded with strategies to improve quality, including incorporating
quality measures into performance plans, conducting additional staff
training on best practices, implementing more effective management
strategies throughout EEOC, and formulating standard operating
procedures, as required by the SEP, which will address many of the
quality control recommendations included in the draft QCP.
Question 2. If an employer is prohibited from asking an applicant
his/her age on an application, how can a company be sued for age
discrimination for failing to meet undetermined quotas?
Answer 2. The ADEA does not require employers to meet any hiring or
employment quotas based on age. Also, the ADEA does not prohibit
employers from asking an applicant's age on an application; however,
employers generally do not ask applicants their age because age is
usually an irrelevant factor in employment decisions. Where an employer
asks an applicant his or her age, this may be evidence of
discrimination, if the employer relies on that information to deny an
older applicant the job.
Response by P. David Lopez to Questions of Senator Alexander, Senator
Paul, Senator Collins, and Senator Roberts
senator alexander
Question 1. Does EEOC ever utilize a third-party to find, or help
find, potential plaintiffs before or during an investigation or
litigation? This includes, but is not limited to, Web sites, contracted
legal services or investigative services, contract employees, social
media, etc.
If so, since 2010, please list each instance where this has
occurred and the amount of resources spent in each instance.
Answer 1. When an employer fails to keep records, it may be
difficult for EEOC to obtain information on those harmed or potentially
harmed by a discriminatory policy or practice. On rare occasions, after
an investigation has been completed and during conciliation, an
employer who has not kept the records required by law may agree to web
postings, advertisements, or other means to identify potentially
aggrieved individuals. In these circumstances, it is generally the
respondent who creates and pays for advertisements.
In certain larger investigations, EEOC may contract for the
services of temporary paralegals or support personnel to contact and
interview individuals who may be witnesses or who may have been harmed
by the discriminatory policy or practice alleged. During the
investigation, these paralegals or support personnel may be required to
search for contact information where the information on file is
inaccurate, missing, or outdated. The time these contract personnel
spend identifying potentially aggrieved individuals is not recorded
separately from the time they spend preparing files, organizing
documents, and entering data.
In litigation, EEOC has occasionally contracted with a third-
party--such as placing ads with a newspaper or radio station--to find
individuals for whom the agency seeks to obtain relief.\1\ We have
identified three instances since 2010 where EEOC has contracted with a
third-party during litigation to find or help find individuals who may
be entitled to relief in the litigation. This occurs when we have been
unable to identify members of the protected class at issue from the
employer's records.
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\1\ EEOC is the ``plaintiff '' in its litigation, and individuals
for whom the agency may pursue relief are considered aggrieved or
potentially aggrieved individuals.
In 2011, in a case filed against a restaurant with two
locations for alleged race discrimination against African-Americans in
hiring and job assignments, EEOC contracted for radio ads, at a cost of
$7,995, to help identify individuals affected by the discrimination
alleged. The lawsuit was settled in 2014.
In 2012, in a case filed against an automobile shipment
company for alleged failure to hire African-Americans because of race
and alleged discrimination against applicants with disabilities based
on pre-employment medical inquiries, EEOC contracted for newspaper ads,
at a cost of $3,525, to help identify individuals affected by the
discrimination alleged. This lawsuit is pending.
In 2012, in a case filed against a restaurant with six
locations for alleged failure to hire individuals 40 years old and over
because of age, EEOC contracted for radio ads, at a cost of $2,475, to
help identify individuals affected by the discrimination alleged. The
lawsuit was settled in 2013.
Question 2. During the May 19 hearing, you maintained that EEOC
does not use, or contract for the use of, Craigslist to find potential
plaintiffs. As you are aware, a Craigslist ad was posted soliciting
plaintiffs in EEOC's lawsuit against Texas Roadhouse, and it appeared
to have been posted by EEOC. Indeed, in part, the ad stated ``e-mail us
at [email protected].'' The ad has now been removed. Does EEOC view this ad
to be fraudulent?
Did EEOC report this ad as fraudulent to Craigslist?
If so, on what date did EEOC report the ad as fraudulent and by
what means?
Answer 2. The Craigslist ad to which you refer duplicated language
about the Texas Roadhouse case found on EEOC's Web site. The ad was not
placed or authorized by EEOC. EEOC contacted Craigslist on May 26 and
informed them that the ad was not authorized by EEOC and requested
information about the posting. EEOC contacted Craigslist again on June
2, 2015, to gather information about the posting of the ad. Both times,
EEOC was advised by Craigslist that a subpoena was necessary before any
information would be released. EEOC staff then referred the matter to
EEOC's Office of Inspector General (OIG) for further review.
Based on information gained through a subpoena filed by counsel
representing Texas Roadhouse in our pending suit against them, we have
learned that the person who placed the ad did so from an Internet
address in Alaska and used an e-mail address that appears to belong to
an individual that has never been employed by EEOC. Additionally, the
IP address used to post the ad was not an EEOC IP address.
Question 3. Does EEOC ever review Craigslist to search for evidence
of potential discrimination?
If so, how often and how many resources are spent on these efforts?
Answer 3. Over the course of the past 5\1/2\ years (fiscal year
2010-15 to date), EEOC has expended a limited amount of resources to
review Craigslist advertisements to identify evidence of
discrimination. For example, sometimes EEOC learns of potentially
discriminatory ads on Craigslist from a member of the public or during
the course of an investigation. Investigators would go directly to
Craigslist to confirm those allegations. We estimate that during this
5\1/2\-year period, investigative staff spent a total of approximately
200 hours to identify evidence of discrimination in ads on Craigslist.
In some instances, for example, offices identified potentially
discriminatory job advertisements that may have excluded applicants
based on gender or age. Such review occurs at the investigative stage
and is therefore not supervised by the General Counsel.
Question 4. When you believe a case has a high likelihood of
creating ``public controversy,'' you are required to submit that case
to the Commission for a vote prior to commencing litigation. Given the
extensive congressional concerns with EEOC's investigation of
accounting firms and their partnership agreements, and Chair Yang's
statement at the hearing that if you were to recommend litigation in
this area ``it would be something that would come up to the
Commission,'' will you commit to submitting to commissioners for a vote
any future case alleging age discrimination against an accounting firm
due to the mandatory retirement age included in their partnership
agreement--including Deloitte, KPMG, and any other firm currently under
investigation?
Answer 4. During my tenure to date, I have never approved on my own
authority a case alleging age discrimination against an accounting firm
because of a mandatory retirement age included in a partnership
agreement. I have submitted one such recommendation to the Commission
for a vote based on my assessment that the case was likely to generate
public controversy. As I have noted to this committee before, I intend
to continue doing so.
Question 5. At the May 19, hearing, I expressed concern that you
continued to rely on expert witness testimony in one case (EEOC v.
Freeman) on appeal in the Fourth Circuit of Appeals after the Sixth
Circuit Court of Appeals strongly rebuked the same expert testimony in
another case (EEOC v. Kaplan). In response, you stated, ``it wasn't
like we were rebuked in one case and then went back and used the
witness; both of those cases were pending at the same time.'' While
both cases were pending at the same time, after EEOC lost Kaplan in the
Sixth Circuit, it submitted a reply appellate brief in Freeman and
presented oral argument. Why did EEOC not withdrawal the appeal in
Freeman after EEOC lost the Kaplan case?
Is EEOC still using Kevin Murphy as an expert witness?
How much has EEOC paid Kevin Murphy in cases it has lost?
How much has EEOC paid Kevin Murphy in total?
Answer 5. EEOC used Kevin Murphy as an expert witness in the
Freeman and Kaplan cases, but the two appeals raised different issues.
In Freeman, EEOC argued that the district court abused its discretion
in excluding the reports as unreliable under Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993), because purported flaws in
Murphy's analyses concerned data, not methodology, and therefore
concerned weight/credibility issues for trial, not admissibility.
By contrast, EEOC v. Kaplan, 748 F.3d 749 (6th Cir. 2014) was a
case in which the court of appeals affirmed the district court's ruling
on the unreliability of an untested racial identification methodology.
In short, Kaplan primarily concerned methodology, which was not an
issue in Freeman, and so was not directly relevant to the Freeman
appeal.
EEOC is not currently using Kevin Murphy as an expert witness in
any pending litigation and has not used him as an expert in any case
aside from Freeman and Kaplan. EEOC has paid a total of $224,513 to the
entities Landy Litigation Support Group and Lamorinda Consulting for
work on these two cases; Kevin Murphy was a consultant or principal for
each entity and the entities employed multiple adjunct experts who
assisted him in completing the work.
Question 6. Fiscal Year 2014's Performance and Accountability
Report stated that the Employees' Viewpoint Survey found EEOC employees
``continue to express concern about disclosing a suspected violation of
any law, rule, or regulation [to EEOC management] without fear of
reprisal.'' Chair Yang's testimony indicates that it's a priority to
educate all employers about how to prevent retaliation in the
workplace. What are you doing, specifically, to ensure EEOC employees
feel comfortable reporting unlawful behavior to EEOC management?
Answer 6. As General Counsel, I expect the highest standard of
ethical and professional conduct from all OGC staff. Therefore, I take
allegations of retaliation very seriously, and I have communicated my
open door policy to all OGC staff. Please be assured that my office
promptly investigates all allegations of retaliation asserted by OGC
staff in accordance with the agency's established procedures.
In fiscal year 2013, EEOC rolled out Diversity and Inclusion
program training to senior leaders, supervisors, and managers.
Currently, we are deploying this training to non-supervisory employees.
These sessions provide employees an opportunity to share their ideas
for creating a more inclusive work environment and ensuring that
prohibited personnel practices, including retaliation, are not
tolerated. Once this training is complete, we will implement new
practices based on employee feedback.
In addition, as part of our commitment to address retaliation and
reprisal, in fiscal year 2015, EEOC began providing agency-wide
training on preventing harassment in the workplace. This training
establishes a system of accountability for ensuring a workplace free
from unlawful harassment based on race, color, religion, sex, national
origin, age, or disability. During this training, we also emphasize
that EEOC will not tolerate retaliation against any employee for
reporting matters under this policy or for assisting in any inquiry
about such a report.
Further, our New Manager Training and Fundamentals of Performance
Management courses, delivered in conjunction with the Office of
Personnel Management, include modules on prohibited personnel practices
and merit system principles, as well as harassment and retaliation.
To more broadly address concerns raised by the Federal Employee
Viewpoint Survey, EEOC launched the BEST initiative--Building Employee
Satisfaction Together. As part of that initiative, in fiscal year 2015
and fiscal year 2016, we will incorporate a substantive discussion of
retaliation and prohibited personnel practices in training to all
employees and in our mandatory training for managers and supervisors.
Specifically, our final quarterly Employee Education Webinars and
Webinars for Managers and Supervisors for this fiscal year will address
retaliation and prohibited personnel practices.
Question 7. The Commission is required to vote on decisions that
``require a major expenditure of resources.'' What do you consider to
be a major expenditure of resources?
How does EEOC determine if a case will involve a major expenditure
of resources--is there a policy in place? If so, please provide the
policy. If not, please explain why you do not have a policy and whether
you will consider if a policy is necessary.
Answer 7. In determining whether cases ``require a major
expenditure of resources,'' I carefully examine case cost estimates to
understand their basis and make adjustments, as necessary. Such
determinations are reached on a case-by-case basis. I generally submit
to the Commission all cases that I believe will cost more than
$100,000.
Question 8. Please provide the dates by which you will publish the
Office of General Counsel Annual Report for each of the following
fiscal years: 2012, 2013, 2014, and 2015.
Answer 8. OGC's Annual Report for fiscal year 2012 has been issued
and posted on the EEOC Web site. We plan to issue the fiscal year 2013
OGC Annual Report by September 30, 2015, the fiscal year 2014 OGC
Annual Report by December 31, 2015, and the fiscal year 2015 OGC Annual
Report by March 31, 2016.
Question 9. During your confirmation process last year, you were
asked:
``If confirmed, will you include in the Office of General
Counsel annual reports the number of times, and the amounts,
EEOC is ordered to pay defendants in attorney's fees and other
costs each year, including those instances where fees and costs
were awarded but not necessarily paid.''
You responded, ``Yes.'' The fiscal year 2011 report did not include
any fee awards. When contacted by HELP Committee staff, EEOC staff
stated,
``there were no final fee awards from fiscal year 2011 to
include in the fiscal year 2011 annual report. Going forward,
we will include final fee awards in the annual reports.''
The question you answered in the affirmative during the
confirmation process did not differentiate between final fee awards and
fee awards on appeal and therefore encompassed all fees awarded,
regardless of whether they are a final award.
Accordingly, do you plan to adhere to your earlier commitment to
including all fees and costs awarded, regardless of whether EEOC is
appealing the decision, in all future Office of General Counsel Annual
Reports as you stated you would during your confirmation process?
Answer 9. When I answered ``Yes'' to the question at my
confirmation hearing regarding including attorney's fees awards against
EEOC in the Office of General Counsel annual reports, I did not see the
need to include the terms ``final awards'' in my answer, because in
litigation almost no determination by a trial court has legal effect
until the party opposing the determination has exhausted its appeal
rights. As I discussed at the May 19 oversight hearing, the appellate
courts have reversed and vacated high profile fee awards against the
Commission because they lacked an adequate legal or factual foundation.
Therefore, I understood the question to refer to legally final awards
of attorney's fees. Consistent with how trial court determinations are
treated in litigation, I intend in future annual reports to include
only attorney's fees awards against EEOC which either have not been
appealed by the agency or which have been affirmed on appeal. These
attorney's fees awards will be included in annual reports for the years
in which the time for EEOC to appeal expired without an appeal being
taken or in which a court of appeals decision affirming the award
(either all or in part) was issued.
I also want to clarify that I interpreted ``attorney's fees
awards'' to mean only those fees awarded to the defendant as a
``prevailing party'' after a determination by the trial court on the
merits of EEOC's suit. Attorney's fees sometimes are awarded to parties
prior to a determination on the merits due to events occurring during
the litigation process, usually involving discovery matters. Such fees
are sometimes awarded as sanctions, or sometimes based just on a
party's success on a particular discovery dispute. Unlike attorney's
fees based on ``prevailing party'' status, which in EEOC cases can be
recovered only by defendants, not by the government, attorney's fees
awards prior to a determination on the merits can be made to either
party, and are often recovered by EEOC. Regardless of my initial
understanding of the committee's questions about including attorney's
fees awards against EEOC in the Office of General Counsel's annual
reports, beginning with fiscal year 2014 EEOC will include all final
attorney's fees awards against EEOC, whether made prior to or following
a determination on the merits, in the annual reports, as well as fee
awards secured by the Commission against defendants.
senator paul
Question. Does EEOC Office of General Counsel use interns who
receive no financial compensation or stipend to assist with its
directed investigations and litigation?
If yes, provide specific information with regard to the duties
performed by interns, or policies related to delegation of duties
normally performed by paid staff to interns during investigation and
litigation.
Answer. EEOC uses intern volunteers in many offices to assist with
our litigation matters including legal research, drafting legal memos
and interviewing potential claimants. Many interns receive third-party
grants or law school credit for their internship, and thus we ensure
that the experience for all interns at EEOC is educational.
senator collins
Question. Under title VII, only the Commission is authorized to
commence litigation. I understand, however, that the Commission has
delegated litigation authority (with a few exceptions) to the General
Counsel of the Commission. I further understand that the current
General Counsel, Mr. Lopez, has delegated much of his litigation
authority to the Commission's district offices. According to Mr. Lopez,
this delegation promotes ``an entrepreneurial approach'' to litigation
in the district offices. It appears that the Commission does not
authorize the vast majority of litigation filed by the EEOC. For
example, in fiscal year 2013, only 16 out of 131 cases (12 percent)
were brought to the Commission for a vote; in fiscal year 2014, only 17
out of 133 cases (13 percent) were brought to the Commission for a
vote. Yet one of the most significant duties of the Commission is to
determine when to initiate litigation. Given the importance of EEOC
litigation, please describe the justifications for the Commission's
current delegation of litigation authority to the General Counsel. In
addition, please describe the justifications for Mr. Lopez's further
delegation of that litigation authority to regional offices.
The current delegation of litigation authority, adopted by the
Commission on a bipartisan basis, carefully balances the need for
Commission oversight with the benefits of streamlined operations. With
the goal of increasing the efficiency and effectiveness of its
enforcement programs, a unanimous Commission delegated litigation
authority to the General Counsel in the 1996 National Enforcement Plan.
This action enabled the Commission to focus more of its time on
significant policy issues.
In its December 2012 Strategic Enforcement Plan, on a bipartisan
basis, the Commission reaffirmed that delegation of authority and
established quarterly reports and meetings to continually assess the
success of the delegated authority. The Commission reaffirmed the
delegation criteria ``with the goal of increasing the efficiency and
effectiveness of the agency's enforcement programs.''
Currently, the Commission must approve decisions to commence or
intervene in litigation in significant cases that: (1) require a major
expenditure of resources; (2) address a developing area of law; or (3)
raise issues of public controversy. In addition, the Commission must
review and approve all recommendations for EEOC to participate as
amicus curiae. The 2012 Strategic Enforcement Plan also directs that
each EEOC district office present a minimum of one litigation
recommendation for Commission consideration each fiscal year, including
litigation recommendations based on the above criteria.
Under the 1995 National Enforcement Plan, the General Counsel was
authorized and encouraged to redelegate litigation authority to the
regional attorneys, as appropriate, because it furthers efficiency,
enhances accountability, improves responsiveness to local issues, and
encourages the exercise of sound judgment. Note, however, all proposed
litigation--including those cases redelegated to regional attorneys--
are reviewed by my office prior to filing and, after such review, the
OGC sometimes modifies the litigation recommendation or advises the
regional attorney to withdraw the proposed litigation.
There is no difference in quality or success among cases voted on
by the Commission, delegated to the General Counsel, or delegated to
regional attorneys. Indeed, several significant successes have emerged
from cases approved by regional attorneys under delegated authority,
including the Supreme Court decision in EEOC v. Abercrombie & Fitch,
135 S. Ct. 2028 (2015), a land-mark religious accommodation case, as
well as the $1.5 million jury verdict in EEOC v. New Breed Logistics,
783 F.3d 1057 (6th Cir. 2015), a multi-victim sexual harassment case
that was tried in Memphis, TN and affirmed on appeal.
Senator Roberts
Question 1. Has EEOC conducted an analysis of the cost--both in
dollars and staff time--of investigations and lawsuits against
employers without a complainant, including the accounting firms and
restaurants you're currently investigating? Will you please provide me
that break down?
Answer 1. We have not conducted such an analysis. We do not track
our resources in a way that allows us to separate out the dollars and
staff time spent working on specific investigations and litigation.
Question 2. If an employer is prohibited from asking an applicant
his/her age on an application, how can a company be sued for age
discrimination for failing to meet undetermined quotas?
The ADEA does not require employers to meet any hiring or
employment quotas based on age. Although the ADEA does not prohibit
employers from asking an applicant's age on an application, employers
generally do not ask applicants their age because age is usually an
irrelevant factor in employment decisions. Where an employer asks an
applicant his or her age, this may be evidence of discrimination, if
the employer relies on that information to deny an older applicant the
job. In many cases, employers can surmise an applicant's approximate
age through observation of the applicant or through information
provided in an application or resume regarding work experience,
education, or other activities.
[Whereupon, at 11:15 a.m., the hearing was adjourned.]