Congressional Hearings

THE NEED FOR MORE RESPONSIBLE REGULATORY AND ENFORCEMENT POLICIES AT THE EEOC

Congressional Hearings

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AUTHORITYID	CHAMBER	TYPE	COMMITTEENAME
hsed00	H	S	Committee on Education and the Workforce

- THE NEED FOR MORE RESPONSIBLE REGULATORY AND ENFORCEMENT POLICIES AT THE EEOC

[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]

THE NEED FOR MORE RESPONSIBLE REGULATORY
AND ENFORCEMENT POLICIES AT THE EEOC

=======================================================================

HEARING

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS

COMMITTEE ON EDUCATION
AND THE WORKFORCE

U.S. House of Representatives

ONE HUNDRED FIFTEENTH CONGRESS

FIRST SESSION

__________

HEARING HELD IN WASHINGTON, DC, MAY 23, 2017

__________

Serial No. 115-16

__________

Printed for the use of the Committee on Education and the Workforce

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Available via the World Wide Web: www.govinfo.gov
or
Committee address: http://edworkforce.house.gov

__________

U.S. GOVERNMENT PUBLISHING OFFICE
25-427 PDF WASHINGTON : 2019

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COMMITTEE ON EDUCATION AND THE WORKFORCE

VIRGINIA FOXX, North Carolina, Chairwoman

Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Duncan Hunter, California Virginia
David P. Roe, Tennessee Ranking Member
Glenn ``GT'' Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Brett Guthrie, Kentucky Joe Courtney, Connecticut
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Lou Barletta, Pennsylvania Jared Polis, Colorado
Luke Messer, Indiana Gregorio Kilili Camacho Sablan,
Bradley Byrne, Alabama Northern Mariana Islands
David Brat, Virginia Frederica S. Wilson, Florida
Glenn Grothman, Wisconsin Suzanne Bonamici, Oregon
Elise Stefanik, New York Mark Takano, California
Rick W. Allen, Georgia Alma S. Adams, North Carolina
Jason Lewis, Minnesota Mark DeSaulnier, California
Francis Rooney, Florida Donald Norcross, New Jersey
Paul Mitchell, Michigan Lisa Blunt Rochester, Delaware
Tom Garrett, Jr., Virginia Raja Krishnamoorthi, Illinois
Lloyd K. Smucker, Pennsylvania Carol Shea-Porter, New Hampshire
A. Drew Ferguson, IV, Georgia Adriano Espaillat, New York
Ron Estes, Kansas

Brandon Renz, Staff Director
Denise Forte, Minority Staff Director
------

SUBCOMMITTEE ON WORKFORCE PROTECTIONS

BRADLEY BYRNE, Alabama, Chairman

Joe Wilson, South Carolina Mark Takano, California,
Duncan Hunter, California Ranking Member
David Brat, Virginia Raul M. Grijalva, Arizona
Glenn Grothman, Wisconsin Alma S. Adams, North Carolina
Elise Stefanik, New York Mark DeSaulnier, California
Francis Rooney, Florida Donald Norcross, New Jersey
A. Drew Ferguson, IV, Georgia Raja Krishnamoorthi, Illinois
Carol Shea-Porter, New Hampshire

C O N T E N T S

----------
Page

Hearing held on May 23, 2017..................................... 1

Statement of Members:
Byrne, Hon. Bradley, Chairman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Takano, Hon. Mark, Ranking Member, Subcommittee on Workforce
Protections................................................ 4
Prepared statement of.................................... 5

Statement of Witnesses:
Cox, Mr. Todd A., Director of Policy, NAACP Legal Defense and
Educational Fund, Inc...................................... 30
Prepared statement of.................................... 32
Olson, Ms. Camille A., Partner, Seyfarth Shaw LLP,
Washington, DC............................................. 48
Prepared statement of.................................... 50
Ponder, Ms. Lisa, Vice President and Global HR Director, MWH
constructors, Inc., Broomfield, CO......................... 7
Prepared statement of.................................... 9
Vann, Ms. Rae T., Vice President and General Counsel, Equal
Employment Advisory Council, Washington, DC................ 19
Prepared statement of.................................... 21

Additional Submissions:
Chairman Byrne:
Letter dated May 23, 2017, from the National Association
of Professional Background Screeners................... 92
Questions submitted for the record by:
Ferguson, Hon. A. Drew, IV, a Representative in Congress
from the State of Georgia.............................. 95
Rooney, Hon. Francis, a Representative in Congress from
the State of Florida................................... 97
Responses to questions submitted for the record:
Ms. Olson................................................ 98
Ms. Ponder............................................... 117

THE NEED FOR MORE RESPONSIBLE REGULATORY AND ENFORCEMENT
POLICIES AT THE EEOC

----------

Tuesday, May 23, 2017

House of Representatives

Committee on Education and the Workforce

Subcommittee on Workforce Protections

Washington, D.C.

----------

The subcommittee met, pursuant to call, at 10:00 a.m., in
Room 2175, Rayburn House Office Building. Hon. Bradley Byrne
[chairman of the subcommittee] presiding.
Present: Representatives Byrne, Wilson, Hunter, Brat,
Grothman, Stefanik, Rooney, Ferguson, Takano, Grijalva, Adams,
DeSaulnier, Norcross, Krishnamoorthi, and Shea-Porter.
Also Present: Representatives Foxx, and Scott(VA).
Staff Present: Bethany Aronhalt, Press Secretary; Andrew
Banducci, Workforce Policy Counsel; Ed Gilroy, Director of
Workforce Policy; Jessica Goodman, Legislative Assistant;
Callie Harman, Legislative Assistant; Nancy Locke, Chief Clerk;
John Martin, Professional Staff Member; Dominique McKay, Deputy
Press Secretary; James Mullen, Director of Information
Technology; Krisann Pearce, General Counsel; Lauren Reddington,
Deputy Press Secretary; Molly McLaughlin Salmi, Deputy Director
of Workforce Policy; Alissa Strawcutter, Deputy Clerk; Olivia
Voslow, Staff Assistant; Joseph Wheeler, Professional Staff
Member; Tylease Alli, Minority Clerk/Intern and Fellow
Coordinator; Kyle deCant, Labor Policy Counsel; Michael DeMale,
Labor Detailee; Christine Godinez, Minority Staff Assistant;
Eunice Ikene, Minority Labor Policy Advisor; Stephanie Lalle,
Minority Press Assistant; Veronique Pluviose, Minority General
Counsel; and Elizabeth Watson, Minority Director of Labor
Policy.
Chairman Byrne. A quorum being present, the subcommittee
will come to order. Good morning. I would like to begin by
welcoming our witnesses. Today's hearing is part of our
continued oversight of the Equal Employment Opportunity
Commission, and your testimony will help shape our ongoing
effort.
Every American deserves an equal chance to earn success. No
one should be denied an opportunity because of unlawful
discrimination. The vast majority of employers treat their
employees equally and foster an environment free of
discrimination, but we live in a world where prejudice and
bigotry still exist, and bad actors must be held accountable.
That is why there are important protections under federal
law to prevent workplace discrimination, including the Civil
Rights Act, the Americans with Disabilities Act, the Equal Pay
Act, and many others.
Republicans and Democrats agree our nation's non-
discrimination laws must be properly enforced, and the EEOC
should play a critical role in doing just that.
We would not be doing our job here in Congress if we did
not hold the EEOC accountable when it has fallen short of its
important responsibilities. That is why under the Obama
administration we repeatedly raised concerns over the agency's
misplaced priorities. The EEOC consistently took its eye off
the ball and pursued flawed enforcement policies at the expense
of American workers.
Take, for example, the agency's backlog of unsettled
charges. At the end of 2016, the EEOC had more than 73,000
unresolved cases. Thousands of individuals were still waiting
for answers on the discrimination charges they filed. This is
completely unacceptable. These are men and women who turned to
the federal government for help and got lost in an inefficient
bureaucracy.
The EEOC's backlog has not always been this high. In fact,
the average annual number of unresolved cases was roughly 90
percent higher under the Obama administration than the Bush
administration. Ninety percent. And that's not all. The Obama
EEOC pursued 50 percent fewer cases on behalf of individual
workers.
If you get down to what the EEOC is really supposed to do,
they are supposed to pursue the cases that are filed by
individual workers, yet they filed 50 percent fewer. With this
type of track record, one may wonder what exactly the EEOC has
been doing all these years.
Part of the answer lies in the agency's misguided focus on
phishing expeditions. Instead of using its resources to address
actual claims of alleged wrongdoing, the EEOC has been on a
nationwide search for ``systemic'' cases of discrimination that
may or may not exist.
The result? A long list of frivolous lawsuits and the needs
of many individual workers unmet. One U.S. District Judge
described the agency's backward strategy as ``sue first, ask
questions later.'' And unanimous rebukes by the Supreme Court
led the Wall Street Journal Editorial Board to name the EEOC
the ``government's most abusive agency.''
However, the EEOC has been busy in more ways than just
phishing expeditions. The agency has also spent its time and
resources concocting overreaching and convoluted regulatory
schemes. Most recently, we have seen expansive changes to the
Employer Information Report, the EEO-1.
Under Federal law, employers have long been required to
file employment data categorized by race, gender, ethnicity,
and job category. This year, employers will fill out a form
with 128 data points. Beginning next year, employers, including
many small employers, will face a form with a whopping 3,360
data cells--128 now, 3,360 next year. That is 26 times the
amount of information employers currently provide to the
Federal Government.
Can you imagine making sense of this massive, confusing
reporting regime as a small business owner? This new mandate is
estimated to cost American job creators $1.3 billion and more
than 8 million hours of paperwork each year, resources that
could go toward raising wages and hiring new workers.
And for what? We do not even know how the EEOC intends to
use all of this new data and whether or not it can help combat
pay discrimination in the first place. There are also serious
privacy concerns since the agency has failed to demonstrate how
it plans to safeguard this enormous amount of new information.
What the EEOC should be focused on is improving enforcement
of existing worker protections, and that is exactly why we are
here today, to hold the agency accountable and demand better.
With a new Congress and a new administration, we have an
opportunity to move the EEOC in a new direction, and that is
precisely what America's workers need.
Today's discussion is an important step in our efforts to
encourage the EEOC to adopt more responsible regulatory and
enforcement policies. It is my hope we can have a thoughtful
dialogue on how we can ensure the strong worker protections
that exist in the law are properly enforced.
I will now turn to the ranking member, Mr. Takano, for his
opening remarks.
[The statement of Chairman Byrne follows:]

Prepared Statement of Hon. Bradley Byrne, Chairman, Subcommittee on
Workforce Protections

Every American deserves an equal chance to earn success. No one
should be denied an opportunity because of unlawful discrimination. The
vast majority of employers treat their employees equally and foster an
environment free of discrimination. But we live in a world where
prejudice and bigotry still exist, and bad actors must be held
accountable.
That is why there are important protections under federal law to
prevent workplace discrimination, including the Civil Rights Act, the
Americans with Disabilities Act, and the Equal Pay Act, among others.
Republicans and Democrats agree our nation's nondiscrimination laws
must be properly enforced, and the EEOC should play a critical role in
doing just that.
We wouldn't be doing our job here in Congress if we didn't hold the
EEOC accountable when it has fallen short of its important
responsibilities. That is why, under the Obama administration, we
repeatedly raised concerns over the agency's misplaced priorities. The
EEOC consistently took its eye off the ball and pursued flawed
enforcement policies at the expense of workers.
Take for example the agency's backlog of unsettled charges. At the
end of 2016, the EEOC had more than 73,000 unresolved cases. Thousands
of individuals were still waiting for answers on the discrimination
charges they filed. This is completely unacceptable. These are men and
women who turned to the federal government for help and got lost in an
inefficient bureaucracy.
The EEOC's backlog hasn't always been this high. In fact, the
average annual number of unresolved cases was roughly 90 percent higher
under the Obama administration than the Bush administration. 90
percent. And that's not all. The Obama EEOC pursued 50 percent fewer
cases on behalf of individual workers.
With this type of track record, one may wonder what exactly the
EEOC has been doing all these years. Part of the answer lies in the
agency's misguided focus on fishing expeditions. Instead of using its
resources to address actual claims of alleged wrongdoing, the EEOC has
been on a nationwide search for ``systemic'' cases of discrimination
that may or may not exist.
The result? A long list of frivolous lawsuits and the needs of many
individual workers unmet. One U.S. District Court judge described the
agency's backwards strategy as ``sue first, ask questions later.'' And
unanimous rebukes by the Supreme Court led the Wall Street Journal
editorial board to name the EEOC the ``government's most abusive
agency.''
However, the EEOC has been busy in more ways than fishing
expeditions. The agency has also spent its time and resources
concocting overreaching and convoluted regulatory schemes. Most
recently, we've seen expansive changes to the employer information
report, the EEO-1.
Under federal law, employers have long been required to file
employment data categorized by race, gender, ethnicity, and job
category. This year, employers will fill out a form with 128 data
points. But beginning next year, employers--including many small
employers --will face a form with a whopping 3,360 data cells. That's
26 times the amount of information employers currently provide to the
federal government. Can you imagine making sense of this massive,
confusing reporting regime as a small business owner?
This new mandate is estimated to cost American job creators $1.3
billion and more than 8 million hours of paperwork each year--resources
that could go toward raising wages and hiring new workers. And for
what? We don't even know how the EEOC intends to use all of this new
data and whether or not it can help combat pay discrimination in the
first place. There are also serious privacy concerns since the agency
has failed to demonstrate how it plans to safeguard this enormous
amount of new information.
What the EEOC should be focused on is improving enforcement of
existing worker protections. And that's exactly why we are here today:
to hold the agency accountable and demand better. With a new Congress
and new administration, we have an opportunity to move the EEOC in a
new direction, and that's precisely what America's workers need.
Today's discussion is an important step in our efforts to encourage
the EEOC to adopt more responsible regulatory and enforcement policies.
It is my hope we can have a thoughtful dialogue on how we can ensure
the strong worker protections that exist in the law are properly
enforced.
______

Mr. Takano. Thank you, Mr. Chairman. It has been more than
55 years since the enactment of the Civil Rights Act of 1964,
and the creation of the EEOC. In that time, the EEOC has been
on the forefront of fighting discrimination in the workplace
for all people, and its work is needed now more than ever.
Race, gender, disability, and age discrimination still persist
today.
In fiscal year 2016, the EEOC received a record total of
91,503 charges--35 percent were based on race, 29 percent were
based on sex, 29 percent were based on disability status, and
22.8 percent were based on age discrimination. This evidence
demonstrates that there is still a need for robust civil rights
protections in the workplace.
We are here today to discuss the EEOC's regulatory and
enforcement policies. If past is prologue, I am sure we will
hear from witnesses and my colleagues on the other side of the
aisle claiming that EEOC has overstepped its bounds in pursuing
an aggressive litigation strategy and in its enforcement
guidance. I do not believe this is the case.
With a more diverse workforce, the EEOC's charge is more
difficult than ever before, and Congress should empower the
EEOC to ensure that all people feel welcome in their
workplaces.
There is really so much more work to do at the EEOC. Take,
for example, the issue of pay discrimination. We are in the
21st century. The Equal Pay Act was passed in 1963, and the
Lilly Ledbetter Act in 2009.
Why is the wage gap still an issue for millions of working
women in our nation? On average, women make $0.83 for every
$1.00 that a typical white man makes, and Census data shows
that for women of color, the wage gap is even worse. On
average, black women earn $0.65 up to the $1.00, Hispanic women
earn $0.59, and some AAPI women earn as little as $0.44.
That is why I support the recent update to the EEO-1 Pay
Data Collection Form.
If we do not have accurate data, we will not be able to
solve this persistent problem. While the updated EEO-1 form
will not eliminate pay discrimination on its own, it is an
important step. The data from this form will help the EEOC
assess where discrimination is and tell the Commission work to
put an end to it.
The work of the EEOC ensures that there is fundamental
fairness in the workplace. This is what the Commission sought
to do with its 2012 arrest and conviction guidance. By
clarifying when and how an employer can use arrest and
conviction records, the EEOC was simply providing guidance to
employers to ensure they were being fair in hiring and
employment decisions.
This was not a mandate to tell employers they cannot use
background checks but rather an effort to ensure fairness to
all workers. In fact, the fundamentals of that enforcement
guidance came from the pivotal case of Griggs vs. Duke, and
previous EEOC memos. Over 150 cities and counties in 26 states
already have adopted what is widely known as ``ban the box
laws.''
Mr. Chair, I hope our discussion today can center around
the continued work the EEOC needs to do to end discrimination
in the workplace. Thank you, and I yield back.
[The statement of Mr. Takano follows:]

Prepared Statement of Hon. Mark Takano, Ranking Member, Subcommittee on
Workforce Protections

Thank you, Mr. Chairman.
It's been more than fifty-years since the enactment of the Civil
Rights Act of 1965 and the creation of the EEOC. In that time, the EEOC
has been on the forefront of fighting discrimination in the workplace
for all people, and its work is needed now more than ever.
Race, gender, disability, and age discrimination still persist
today. In Fiscal Year 2016, the EEOC received a record total of 91,503
charges: 35% were based on race, 29% were based on sex, 29% were based
on disability status, and 22.8% were based on age discrimination. This
evidence demonstrates that there is still a need for robust civil
rights protections in the workplace.
We are here today to discuss the EEOC's regulatory and enforcement
policies. If past is prologue, then I'm sure we will hear from
witnesses and my colleagues on the other side of the aisle claiming
that the EEOC has overstepped its bounds in pursuing an ``aggressive
litigation strategy'' and in its enforcement guidance. I do not believe
this is the case. With a more diverse workforce the EEOC's charge is
more difficult than ever before and Congress should empower the EEOC to
ensure that all people feel welcome in their workplace.
There is so much more work the EEOC needs to do.
Take for example the issue of pay discrimination. We are in the
21st Century. The Equal Pay Act was passed in 1963 and the Lilly
Ledbetter Act in 2009. Why is the wage gap still an issue for millions
of working women in our nation?
On average, working women make 83 cents for every dollar that a
typical white man makes. And census data shows that for women of color
the wage gap is even worse: on average black women earn 65 cents to the
dollar, Hispanic women earn 59 cents, and some AAPI women earn as
little as 44 cents. That is why I support the recent update to the EEO-
1 pay data collection form.
If we don't have accurate data, we won't be able to solve this
persistent problem. While the updated EE0-1 form won't eliminate pay
discrimination on its own, it's an important step. The data that this
form will now collect will help the EEOC asses where discrimination is
and help the Commission work to put an end to it.
The work of the EEOC ensures that there is fundamental fairness in
the workplace.
This is what the Commission sought to do with its 2012 arrest and
conviction guidance. By clarifying when and how an employer can use
arrest and conviction records, the EEOC was simply providing guidance
to employers to ensure that they were being fair in hiring and
employment decisions. This was not a mandate to tell employers that
they can't use criminal background checks, but rather an effort to
ensure fairness to all workers. In fact, the fundamentals of that
enforcement guidance came from the pivotal case of Griggs v. Duke and
previous EEOC memos. And over 150 cities and counties and 26 states
already have adopted what is widely known as ``ban the box'' laws.
Mr. Chair, I hope that our discussion today can center around the
continued work the EEOC needs to do to end discrimination in the
workplace.
______

Chairman Byrne. Thank you, Mr. Takano. Pursuant to
Committee Rule 7(c), all subcommittee members will be permitted
to submit written statements to be included in the permanent
hearing record. Without objection, the hearing record will
remain open for 14 days to allow statements, questions for the
record, and other extraneous material referenced during the
hearing to be submitted in the official hearing record.
It is now my pleasure to introduce today's witnesses. Ms.
Lisa Ponder is the Vice President and Global Human Resources
Director for MWH Constructors, Inc., the construction arm of
Stantec. She is testifying on behalf of the Society for Human
Resource Management.
Ms. Rae Vann serves as the Vice President and General
Counsel for the Equal Employment Advisory Council.
Mr. Todd Cox is Director of Policy at the NAACP Legal
Defense and Educational Fund, Inc.
Ms. Camille Olson is a partner at Seyfarth Shaw LLP, and is
testifying on behalf of the U.S. Chamber of Commerce.
I will now ask our witnesses to raise your right hand.
[Witnesses sworn.]
Chairman Byrne. Let the record reflect the witnesses
responded in the affirmative.
Before I recognize you to provide your testimony, let me
just briefly explain our lighting system. You will each have
five minutes to present your testimony. When you begin, the
light in front of you will turn green. When one minute is left,
the light will turn yellow. When your time has expired, the
light will turn red. At that point, I will ask you to wrap up
your remarks as best you are able. After you have testified,
members will each have five minutes to ask questions.
Now, some of you have practiced law. You have been in the
courtroom where the judge brings down the hammer at exactly the
time. I am not that kind of chairman, but we do want to try to
keep our remarks within the time frame because that will allow
us to have the maximum time here to do it, so if I start
pushing you a little bit, it is not to be overly rigorous in
running the meeting, I am just trying to keep us on track. Is
that fair enough? Thank you. All right.
I would like to begin to recognize our witnesses, and we
will start with you, Ms. Ponder.

TESTIMONY OF LISA PONDER, VICE PRESIDENT AND GLOBAL HR
DIRECTOR, MWH CONSTRUCTORS, INC., BROOMFIELD, CO, ON BEHALF OF
THE SOCIETY FOR HUMAN RESOURCE MANAGEMENT

Ms. Ponder. Good morning, Chairman Byrne, Ranking Member
Takano, and members of the committee. It's an honor to be here
with you to discuss the need for responsible regulations and
enforcement at the EEOC, and in particular, the EEO-1 Report.
I serve as Vice President and Global HR Director for MWH
Constructors, Inc., or MWH, the construction arm of Stantec, a
global engineering and construction company, and I appear
before you today on behalf of the Society for Human Resource
Management or SHRM.
SHRM believes the EEOC plays a critical role in ensuring
that employees have equal opportunity to work in environments
that are free from discrimination. Just as importantly, the
EEOC educates employers to help prevent illegal discrimination
and addresses it whenever found. SHRM strongly supports these
goals.
Mr. Chairman, regulations need to be developed and
implemented to meet the policy goals of the underlying
statutes. As it relates to today's hearing, SHRM is concerned
that the revised EEO-1 Report will not prove useful in
achieving the objective of curtailing compensation
discrimination, while at the same time being administratively
burdensome and costly.
Let me illustrate a few of these concerns. The EEOC
revision to collect compensation data at the level of the EEO-1
job category is unlikely to uncover discriminatory pay
practices because the category includes a wide range of jobs
while not factoring in legitimate non-discriminatory pay rates.
For example, in 2016, MWH reported 1,100 engineers under
the professional category, 307 women, 793 men. However, these
engineers' experience ranged from just out of college to more
than 20 years. Understandably, we pay our engineers with 20 to
30 years of experience more than we pay our millennial
engineers with one to five years of experience.
Couple this with the reality that women representing the
Baby Boomer generation in our industry only account for
approximately 5 percent of our engineers, whereas female
millennial engineers represent nearly 20 percent of the
industry.
Reporting both men and women in one job category will
produce a result showing that we pay our male professionals
more than we pay our female professionals.
The revised report doesn't allow us to report individual
experience, so the report will appear to have a pay
differential based on gender rather than experience, a non-
discriminatory factor.
Another area of concern of the revised EEO-1 is the
collection of W-2 gross income. As the EEOC recognizes, W-2
gross income includes non-discriminatory variables that may
impact earnings, including shift differentials, bonuses,
commissions, and overtime compensation.
While this data may provide the EEOC with a broader view of
pay practices, collecting this data will not allow the EEOC to
evaluate comparative compensation data points.
The above concerns coupled with those outlined in my
written statement raise serious doubts regarding whether the
stated purpose of addressing pay differential can be
accomplished from the revised EEO-1 data collection effort.
Now, I want to take a few moments to discuss ways to
improve the investigative process at the EEOC. In areas where
it's appropriate, I would recommend the Commission rely more on
mediation and non-binding settlement conferences with the
investigator as arbiter.
When given this opportunity, MWH always participates and
tries to reach a resolution of the complaint in a fair and
timely manner. Used properly, mediation and settlement
processes can provide fair, equitable, and timely settlement to
the employer and the employee, and can save time and resources
for all involved.
The investigative process could be improved with better
focus on what the EEOC can and should be doing with the
resources it has. Overburdened EEOC staff with a large caseload
slows the process almost to a halt, with neither the employee
or the employer community served well.
The EEOC needs to find a way to better prioritize cases as
experienced investigators can ask the right questions, quickly
leading them to make appropriate and educated decisions on the
merit of the claims right from the start.
In closing, Mr. Chairman, SHRM will continue to work with
the EEOC to institute effective non-discriminatory practices
that address the 21st century workplace. In so doing, SHRM
encourages the Commission to reevaluate its investigative
process to help reduce the backlog of outstanding complaints. A
fair and expeditious process provides finality for both the
employee and the employer.
However, for the reasons I've stated, SHRM is concerned
that the revised EEO-1 Report will not prove useful in
achieving the stated objective of curtailing unlawful
compensation discrimination.
Thank you for this opportunity, and I'm happy to answer
questions.
[The statement of Ms. Ponder follows:]

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

Chairman Byrne. Thank you, Ms. Ponder. Ms. Vann, you are
recognized for five minutes.

TESTIMONY OF RAE T. VANN, VICE PRESIDENT AND GENERAL COUNSEL,
EQUAL EMPLOYMENT ADVISORY COUNCIL, WASHINGTON, D.C.

Ms. Vann. Chairman Byrne, Ranking Member Takano, and
members of the subcommittee, thank you for inviting me to
testify today about the challenges and opportunities facing the
EEOC in carrying out its important mission of preventing and
eliminating workplace discrimination.
My remarks today will focus on three interrelated policy
areas, and time permitting, on the revised EEO-1 Report.
The first item pertains to the evolution of the EEOC's
systemic enforcement strategy and the difficulty it's posed for
stakeholders.
For some time now, that strategy has emphasized developing
facts sufficient to support class-based, attention grabbing
litigation rather than on investigating and resolving charging
parties' actual bias claims.
We have seen that play out in individual charge
investigations where the investigator spends an inordinate time
looking for possible indicators of broader discrimination than
actually alleged in the underlying charge itself, and in a
number of the cases the EEOC has prosecuted in court.
We feel this is due in part to a lack of adequate
supervision. For instance, under the Commission's current
delegation of litigation authority to the General Counsel, the
regions decide in most instances without prior approval or
input from the full Commission which cases should be litigated.
The lack of headquarters' oversight presents a problem in
particular for large employers with locations throughout the
country. They often face different standards from region to
region, not only as to litigated matters, but also as to charge
investigations and other pre-suit activities.
Related to general management oversight is the issue of
quality assurance. While the EEOC has made a concerted effort
recently to improve the quality of its investigations and
conciliations, we are not sure the current quality standards
have trickled down to the field as quickly or as evenly as
necessary.
Respondents and charging parties want to and should have
confidence that every charge investigation is held to the
highest quality standards, but we just haven't seen enough
consistency across the regions to be certain of that.
Establishing and implementing a meaningful quality control
system for investigations and conciliations we believe is
critical to achievement of the agency's statutory mission.
Also, relevant to effective civil rights enforcement is the
ability to conduct charge investigations as promptly and as
efficiently as possible, because months or sometimes years long
investigations only serve to delay resolution of those bias
claims, and the EEOC should be encouraged and provided with the
necessary resources to improve the time it takes to conduct
charge investigations and conclude its administrative
proceedings.
In addition, the EEOC's current quality standards in our
view are not sufficient to ensure its conciliation obligations
are being met. As the Supreme Court outlined recently, proper
conciliation involves providing the employer with all the
necessary information it needs to understand the basis for the
EEOC's findings, and to determine its own settlement position.
Basic information such as what practice has harmed which
person.
The EEOC's quality standards should describe what
meaningful conciliation looks like. It's especially important
that those standards be reflected in the procedural
regulations, which currently specify only that the agency
attempt to achieve a just resolution of all violations found.
Finally, we believe that the EEOC should seriously consider
expanding its very successful mediation program to more stages
of the investigative process including conciliation.
Once reasonable cause is found, the dynamics of the
situation change significantly, and an employer that may have
been disinclined to go to mediation beforehand may now see some
value in doing so.
The EEOC also could utilize mediation as a viable
alternative to litigation in the event the conciliation is
unsuccessful. At that stage, an outside neutral with no stake
in the outcome may greatly assist the parties and the agency in
reaching a mutually acceptable resolution that avoids the costs
and time involved in Federal court litigation.
In my written comments, I discuss our concerns with the
revised EEO-1 Report, which are consistent with Ms. Ponder's
remarks. I'm happy to discuss those concerns if you wish during
questions. Thank you again for the opportunity to testify.
[The statement of Ms. Vann follows:]

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Chairman Byrne. Thank you, Ms. Vann. Mr. Cox, you are
recognized for five minutes.

TESTIMONY OF TODD A. COX, DIRECTOR OF POLICY, NAACP LEGAL
DEFENSE AND EDUCATIONAL FUND, INC.

Mr. Cox. Thank you. Good morning, Chairman Byrne, Ranking
Member Takano, and members of the subcommittee. My name is Todd
Cox, and I am the Director of Policy for the NAACP Legal
Defense and Educational Fund.
Thank you for the opportunity to testify at this morning's
hearing to express our views regarding the regulatory and
enforcement priorities of the U.S. Equal Employment Opportunity
Commission.
The EEOC has throughout its existence played a pivotal role
in ensuring that all Americans have access to equal
opportunities in the workplace, and that there are adequate
protections in place so that unlawful employment discrimination
is quickly identified and remediated.
An important part of that role has been the EEOC's
regulatory and enforcement policies and activities, including
its systemic litigation, and its work in emerging areas of
discrimination.
Despite the tremendous strides we have made as a nation
towards equal opportunity, the EEOC continues to remain an
incredibly important and necessary federal agency. There is no
question that the EEOC has been incredibly successful in
redressing various forms of employment discrimination.
The Commission has been and continues to be a driving force
in dismantling segregated workplaces, removing unnecessary and
discriminatory employment barriers and obstacles, and ensuring
the promise of equality at work could be realized for millions
of Americans.
Despite the tremendous progress, however, sadly, our work
on eliminating discrimination in the American workplace is far
from over. We commend the EEOC's decision to continue to
prioritize the initiative revitalized under President George W.
Bush's administration and focusing the Commission's resources
on redressing systemic discrimination--pattern or practice,
policy and/or class-wide investigations and litigation where
the alleged discrimination has a widespread impact on industry,
employers, or geographic areas.
While individual claims have a place on the Commission's
docket, it is imperative that the EEOC continue to maximize its
impact by prioritizing systematic enforcement and litigation.
An emphasis on systemic enforcement makes perfect sense
strategically, because it allows the EEOC to address and remedy
workplace discrimination on a large scale.
We also applaud the EEOC's continued reliance on disparate
impact liability as a tool through which to prove unlawful
discrimination. Disparate impact is more important than ever,
especially given that subtle and sophisticated types of
discrimination are more commonplace today than instances of
overt racial animus.
The EEOC's work concerning the misuse of criminal records
in employment highlights the ways in which the Commission is
working to address and remedy discriminatory barriers that have
disparate impacts on protected groups.
In recent decades, the number of Americans who have some
criminal history has increased significantly. The impact of the
criminal justice system particularly resonates in communities
of color and has important civil rights and racial justice
implications.
In response to this growing trend, the EEOC in a bipartisan
manner issued enforcement guidance concerning the use of
criminal records in employment. I would like to emphasize a few
points about the guidance.
First, neither Title VII nor the guidance itself prohibits
employers from considering criminal history when they make
employment decisions. Second, the guidance describes how
employers considering criminal history in a targeted fact-based
way can avoid Title VII liability consistent with existing law.
Lastly, it reiterates that the fact of an arrest standing
alone does not establish that criminal conduct occurred and
that an employer should not rely on an arrest record alone to
make employment decisions.
What is important is that people have an opportunity to
apply and be considered for jobs for which they are qualified
and for which their criminal records are not relevant or
predictive. Permanently excluding people from the workforce
because of contact with the criminal justice system is
inconsistent with Title VII.
The EEOC's work on the guidance is consistent with the
growing national and bipartisan consensus that we need to
rethink our criminal reentry systems to ensure that millions of
Americans who have a criminal record are afforded a second
chance, and ultimately, that our communities are safer and more
economically stable.
The 53rd anniversary of the Civil Rights Act of 1964
provides a timely opportunity to pause and consider the
regulatory and enforcement priorities of the EEOC. Undoubtedly,
the EEOC should be applauded for the tremendous role it has
played in helping to ensure that American workers are not being
denied equal opportunity.
The Commission must continue its work of developing new and
innovative ways to combat unlawful discrimination. As Naomi
Earp, who served as Chair of the EEOC under President George W.
Bush once remarked, ``New times demand new strategies to stay
ahead of the curve. These old evils are still around in new
forms, and the Commission intends to act vigorously to
eradicate them.''
Accordingly, we should take this opportunity to ensure that
the EEOC has the resources it needs to continue its critically
important work.
Thank you for the opportunity to testify. I look forward to
your questions.
[The statement of Mr. Cox follows:]

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Chairman Byrne. Thank you, Mr. Cox. Ms. Olson, you are
recognized for five minutes.

TESTIMONY OF CAMILLE A. OLSON, PARTNER, SEYFARTH SHAW LLP,
WASHINGTON, D.C., ON BEHALF OF THE U.S. CHAMBER OF COMMERCE

Ms. Olson. Good morning. Thank you, Chairman Byrne, Ranking
Member Takano, and other members of the subcommittee. My name
is Camille Olson, and I'm testifying on behalf of the U.S.
Chamber of Commerce, the world's largest business federation.
I chair the Chamber's Equal Employment Opportunity Policy
Subcommittee, and I'm also a partner with the law firm of
Seyfarth Shaw, where I'm an active employment litigator.
The Chamber is a long-standing supporter of reasonable and
necessary steps to achieve the goal of equal employment
opportunity for all. Over the years, the EEOC has taken
positive steps toward that mission. However, the EEOC's track
record since 2013 raises concerns that any positive
developments have stalled.
I will address three issues--the EEOC's investigation and
direct party litigation amicus failures, improper guidance
documents issued by the EEOC, and the misguided focus of the
revised EEO-1 Report.
First, the EEOC has not fulfilled its mandate to
investigate charges with efficiency and timeliness. In 2009,
the Senate HELP Committee characterized the EEOC's backlog as
unacceptable. Yet, in 2016, the Inspector General again
stressed the need to improve charge processing, noting there
had been no fundamental improvements in this area.
While there has been an overall decline in the backlog over
the last eight years, since 2013, the EEOC's charge backlog has
actually increased 3.9 percent.
In addition, the EEOC's continuing emphasis on systemic
cases has led to a drastic decline in both the volume as well
as the quality of its litigation. The EEOC's focus on
increasing the percentage of systemic cases incentivized the
agency to take aggressive approaches when evaluating charges at
the expense of targeted investigations and prompt resolutions
of individual charges of discrimination.
Individuals who file charges do not want press releases.
They want a fair, timely examination of their complaint, and if
appropriate, a remedy. Indeed, we have seen a significant
decline in the number of merit suits filed. If you look between
2001 and 2011, the EEOC filed between 250 and 388 merit suits
each and every year. In striking contrast, the EEOC's General
Counsel's Office filed only 86 lawsuits in 2016.
Against this backdrop, lawsuits brought by the EEOC have
been judged to be frivolous, unreasonable, and without
foundation, resulting in significant attorney fees awarded
against the EEOC.
The Sixth Circuit criticized the EEOC in one case for
``playing a hand it just could not win.'' Sanctions against the
EEOC have focused on its failure to conduct proper discovery
and for bringing meritless cases.
Similarly, the EEOC's amicus program has resulted in
numerous defeats in recent years. This is a waste of resources
and causes the agency to also lose credibility with the
judiciary.
Second, the EEOC's track record issuing guidance
demonstrates the agency's improper attempts to establish new
legal standards through these guidance enforcement documents.
In one case, the Supreme Court characterized the EEOC's
underlying enforcement guidance as ``a proposed standard of
remarkable ambiguity.''
Third, in 2016, the EEOC significantly expanded the EEO-1
Form to collect for the very first time W-2 and hours worked
information from employers across the country. Surprisingly,
submitted under the Paperwork Reduction Act.
While the Chamber strongly supports equal pay for equal
work, the revised EEO-1 Form will not promote equal pay because
the data being collected in that form at enormous cost is
useless for that purpose.
As an initial matter, the new EEO-1 Form is a massive
expansion of the current form, which has been in use for
decades. The form has been expanded, as noted earlier today,
from less than 200 data points to over 3,000, and will force
hundreds of millions of dollars in recordkeeping compliance
costs alone upon employers.
Also, the EEOC itself has admitted the revised EEO-1 will
have no probative value in identifying discriminatory pay
practices. That is because a fundamental principle under the
Equal Pay Act as well as Title VII is that pay comparisons can
only be made between employees who perform equal work or who
are similarly situated to each other.
The EEO-1 Report does the opposite and combines vastly
dissimilar jobs. In addition, the data ignores legitimate
explanations of pay differences, such as experience, employee
work performance, and education levels.
Finally, in addition to the significant increased burden of
producing the data is the EEOC's inability to show how this
sensitive data will be effectively protected from improper use
or hacking by others, all of which means the revised EEO-1 Form
is a substantial new recordkeeping obligation that will in fact
do nothing to ensure equal pay for substantially equal work
while at the same time siphoning employer resources from
actively performing meaningful compensation audits, and--
Chairman Byrne. Ms. Olson, I am going to have to ask you to
wrap up as quickly as you can.
Ms. Olson. And then acting upon those results.
I have submitted with the written testimony analytical data
and charts providing additional detail on the EEOC's
unreasonable enforcement efforts and misplaced priorities.
On behalf of the U.S. Chamber of Commerce, thank you for
the opportunity to share some of these concerns with you today.
[The statement of Ms. Olson follows:]

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

Chairman Byrne. Thank you, Ms. Olson. Thanks to every one
of you, it was superb. Now, we go to the question portion of
our hearing today. We are honored to have with us the
chairwoman of the full committee, the Education and the
Workforce Committee, Mrs. Virginia Foxx from North Carolina,
and I recognize her for five minutes.
Mrs. Foxx. Thank you very much, Mr. Chairman. I want to
thank the witnesses for being here today, although I want to
say this is pretty depressing testimony about the lack of
action on the EEOC.
I have to tell you, I am a person who absolutely abhors
discrimination of any sort, and to hear the comments made about
how the agency we consider most important, I think, in the
government, and have for a long time, to make sure that we root
out individual discrimination, it is pretty depressing.
Let me go on with my questions. Ms. Vann, as I said, the
primary role of the EEOC is to investigate charges of
discrimination filed by individual workers to fairly and
accurately assess the allegations and make a finding.
Regrettably, you all testified and the chairman said in his
comments, excellent comments at the beginning, that the backlog
at the end of fiscal year 2016 was 73,508 unresolved charges.
Some of them languishing for more than five years.
We all know the phrase ``justice delayed is justice
denied.'' You discussed the backlog in your testimony. Do you
attribute the backlog to misguided policies and practices that
can be changed? I think you imply that. Or, to a lack of
resources? Would you say the emphasis on systemic
investigations is the main reason for the persistently high
backlog in the last eight years?
Ms. Vann. Thank you for that question. I would answer it
this way, beginning with your question about resources. I am
skeptical that the steady increase in the charge backlog, we've
seen an increase over the last four fiscal years, is as a
result of a lack of resources as the agency's budget has either
been increased slightly or remained flat.
I would suggest that a large part of the backlog, the
increasing backlog, is a direct result of the agency's
misguided focus on systemic enforcement and the resources and
time that is required to go into investigating those claims and
prosecuting those claims.
Now, to be sure, the backlog is not the highest that it's
ever been, but in fiscal year 1995, as an example, the agency
had over 90,000 charges in its backlog, but that was well
before some of the very important steps that the agency took,
including implementing the National Enforcement Plan and
putting into place the priority charge handling procedures that
really helped to address those issues.
Mrs. Foxx. There is a similarity between 1995 and the last
eight years, and that is these were both Democrat
administrations.
Ms. Vann, you also say in your testimony that the
delegation of litigation authority to the EEOC General Counsel,
with no vote by the Commission in most cases, how this has led
to inconsistency in enforcement across the regions. The
delegation also makes the litigation program unaccountable to
the Commissioners who are supposed to lead the agency.
How would you address this concern, and would you
completely rescind the delegation so that the Commissioners
must approve or disapprove legislation, or is there a mechanism
you could see that would make this work better?
Ms. Vann. Yes, ma'am. I would urge the agency to rescind
the delegation of litigation authority entirely, at least in
most cases. Perhaps the agency could flip the current approach,
which as established now, allows the Commission to review only
a handful of cases, really at the region's discretion.
I would flip that model and have most of the cases except
for perhaps a certain type of case go up to the Commission, and
to that end, I would have the General Counsel also rescind his
or her re-delegation to the regional attorneys and have General
Counsel really making the call and being involved in every
active litigation decision.
Mrs. Foxx. Thank you very much. I yield back, Mr. Chairman.
Chairman Byrne. Thank you, Madam Chairwoman. The
subcommittee is also honored today to have the ranking member
of the full committee, the honorable gentleman from Virginia,
Mr. Bobby Scott. I recognize him for five minutes.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chair, this is the
fourth hearing we have had in the last few years regarding the
EEOC, but we have yet to hear from an actual Commissioner since
2013.
If we are going to criticize the priorities like individual
cases, the value of class actions, and the various priorities,
it seems to me we ought to invite a representative of the EEOC
to explain their position.
Mr. Cox, can you explain how the criminal justice guidance
is consistent with Griggs v. Duke Power Company?
Mr. Cox. Sure. Congressman Scott, Griggs stands for the
concept that Title VII should be extended or should be
interpreted as being able to reach discrimination that is sub
rosa, that is not overt, that is sort of under the radar. That
principle now more than ever is very important, the so-called
``disparate impact principle.''
We know overt racial animus is something that we don't see
as often as we used to, so Griggs is consistent with the
criminal background check because that is exactly what is going
on with the misuse of criminal backgrounds.
The criminal justice system as we have discussed has a
disproportionate impact on people of color because they are
overrepresented in that system for a number of reasons,
historically.
We see and understand that so-called ``race neutral''
policies that overtly don't discriminate can have a disparate
impact on people of color because of that disproportionate
representation in the criminal justice system.
Title VII was interpreted as reaching that in 1975 in a
case called Green v. Missouri Railroad. They set up a structure
for employers to use in order to evaluate whether or not
someone should be excluded because they had a criminal record.
The EEOC guidance reflects that, and they set up a
structure within the guidance to advise employers on how to
apply Title VII in a way that would both protect frankly them
from liability but also afford opportunities to those with
criminal records.
Mr. Scott. Thank you. I understand the EEOC is appealing a
ruling of the Federal District Court in Michigan regarding the
Religious Freedom Restoration Act and how it can possibly
override Title VII. Can you explain the danger in allowing RFRA
from overriding Title VII because an employer has a sincerely
held religious belief?
Mr. Cox. Certainly. That's the Harris Funeral Homes case, a
transgender hiring case or employment case. I think cases like
that, cases like Hobby Lobby, that allow for, as you described,
sincerely held religious beliefs to be used to frankly
discriminate or to exclude opens a dangerous door, and it
threatens to open wide potential discrimination based on the
number of bases, including race.
In the past, we have seen such excuses or such beliefs be
used for racial discrimination, and it's a slippery slope,
particularly, frankly, in a climate where we see discrimination
based on religion, in terms of who can immigrate to this
country or attempts to discriminate based on religion, on that
basis.
So, we are very concerned about that, and would advise that
not be the ruling obviously in this case but also not be
policy.
Mr. Scott. A lot has been said about systemic versus
individual cases. Can you tell me the value of systemic cases?
Mr. Cox. Systemic cases for the EEOC allows them to focus
on an industry, on issues, a much broader set of circumstances.
I have to also clarify that even with systemic discrimination
cases in the EEOC, it all starts with a charge. Individual
cases that come in, when they investigate them, if there is an
allegation that has broader implications for the employer or
for an industry, it may become a systemic case. It doesn't
automatically become a litigation either. It could be
investigated and resolved that way.
There's not any inconsistency necessarily with an
individual case or individual charge and a systemic piece of
litigation. It's really about the strategy and the focus of the
litigation, and why the EEOC decides to make it a systemic
case. That is because there's an idea or belief there is a
large set of circumstances or issues that can be addressed
through the litigation.
Mr. Scott. Can you quickly say the value of the EEO-1 pay
data collection?
Mr. Cox. Sure. As Mr. Takano pointed out, we are still
seeing discrimination based on pay data for women, people of
color, men of color, and also sort of discrimination that
exposes a gap between their pay and the pay of white men.
So, the idea behind the EEO-1 data collection was to afford
employers an opportunity to collect information, collect data,
and inspire them frankly to do some self-checking to perhaps
get their own systems in order, so they are no longer
discriminating.
I understand the critique that's been leveled against the
collection data, that it's not perfect, that it is seen as not
necessarily getting the results that some would think are
warranted.
However, I think the response to that is to make it better,
and to help the EEOC do a better job in doing the data
collection, but the answer can't be not to comply or not to
give the EEOC--
Chairman Byrne. Mr. Cox, I am very sorry, you are going to
have to wrap up fairly quickly.
Mr. Cox. Sure. That's really the answer to the question.
Mr. Scott. Thank you.
Chairman Byrne. Thank you, Mr. Scott. I now call on myself
for five minutes. Ms. Vann, the Obama administration made a
number of claims over the years about the benefits of mandating
the reporting of pay data.
The Department of Labor's 2014 proposal to require federal
contractors to report pay data said the data summarized at the
industry level would enable contractors to ``assess their
compensation structure along with those of others in the same
industry and provide useful data to current and potential
employees.''
Quite apart from what the statutory obligation of an agency
is, does not the Bureau of Labor Statistics and private
entities already publish aggregate pay data for different
occupations in geographical areas that is more refined and
detailed than the EEOC will be able to publish?
Ms. Vann. Mr. Chairman, I believe that's correct. The data
that the EEOC would publish would provide no benchmarking
utility whatsoever, aside from the lack of utility in its
ability to identify actual potential discrimination.
That is because even within industries, employers have very
wide-ranging compensation and pay setting systems. Employers do
not compensate their employees in the same way. There are a
myriad of variables that go into calculating an individual
employee's or class of employees' pay, so looking at those
aggregated data as an employer, even within a particular
industry, cannot tell me anything about where I am insofar as
being a responsible employer that is complying with the law.
Chairman Byrne. The second purpose listed in the Paperwork
Reduction Act, and that is where the EEO-1 is coming from, the
Paperwork Reduction Act increases paperwork. Only in Washington
does that make sense.
The second purpose is to ``Ensure the greatest possible
public benefit from a maximized utility of information created,
collected, maintained, used, shared, and disseminated by the
Federal Government.'' Another purpose is to ``Improve the
quality and use of federal information to strengthen decision
making and accountability.''
With respect to enforcement, will the pay data the EEOC
collects be sufficiently refined or rigorous enough to be used
as evidence in a court of law?
Ms. Vann. Mr. Chairman, I believe it will not because again
what the data collection purports to do is to provide to the
enforcement agencies or to other outsiders summary data, which
inherently is comparing apples to oranges.
They're not comparing similarly situated individuals. It
cannot produce data that is refined in that way because of all
the problems and issues that were described by Ms. Ponder and
others.
Chairman Byrne. Ms. Olson, according to your testimony,
EEOC vastly underestimated the burden estimate of the pay data
reporting requirement by around $350 million. Would this error
in the burden estimate constitute grounds for the Office of
Management and Budget to rescind its prior approval of the pay
data collection?
Ms. Olson. Thank you. The answer is yes. Under the
Paperwork Reduction Act, Section 3517 actually compels OMB to
review and rescind a previously approved data collection device
if the agency that proposed it substantially underestimated its
burden.
It could really do one of two things. It could either
review it and rescind it or it could stay its effectiveness
until there was an opportunity to have further review and input
into that process.
Chairman Byrne. Thank you. Ms. Ponder, you talked about
mediation. I am a fan of mediation like you are. Explain from
both an employer's perspective and an employee's perspective
why mediation is a good thing.
Ms. Ponder. Thank you, Mr. Chairman. From the employer's
perspective, it is a time to look at the facts of the matter,
see what happened, did we do something right, did something
wrong, and really get a feel for the case. It is a time to
actually hear from the claimant. A lot of times the complaints
from the EEOC are very brief, and we actually have no idea what
they're claiming. We always want to go to mediation and hear
what they have to say and be able to assess what we need to do
at that point.
It's a time where we can settle it quickly, which for the
employer is a good thing. We can move on, improve our
practices, anything that we need to do that we've learned from
the settlement.
On the employee's side, the same thing. It's finality and
quick. Sometimes these things can be taken care of within a few
months of the claim being filed. Everyone goes on with their
lives.
Chairman Byrne. Thank you very much. I now call on Mr.
Takano for five minutes of questions.
Mr. Takano. Good morning. Thanks to all the witnesses. Ms.
Olson, I want to begin with you. I just received some news
about the Trump administration budget this morning. I have just
learned they recommend moving the Office of Federal Contract
Compliance Programs or OFCCP to the EEOC.
I understand the Chamber has gone on record opposing this
move. Can you share with us some of the Chamber's major
concerns with this recommendation?
Ms. Olson. Thank you for your question. Yes. I chair the
EEO Subcommittee for the U.S. Chamber, and just last Friday, we
had an extended conference call with companies across the
country, approximately 50 companies joining. Each and every one
of them expressed very serious concerns regarding a merger of
the two agencies.
Both the EEOC and the OFCCP are in need of reforms, and
time would be better spent more efficiently, more effectively,
more quickly on putting emphasis toward that as opposed to
merging the two agencies.
The two agencies serve very two different primary missions.
Former, to advocate affirmative action and diversity, while the
other to pursue discrimination claims as non-discrimination in
employment. They have very different procedures. They have very
different remedies.
There is a concern that mixing the two different missions
with very different enforcement devices as well as remedies is
really going to confuse the issue as opposed to actually
streamlining the mission, very different missions, of both of
those agencies.
Mr. Takano. Thank you. Mr. Cox, you might want to elaborate
on the differences between EEOC and OFCCP and/or express your
concerns about merging the two agencies.
Mr. Cox. Sure. We would also oppose that and are very
concerned about it. I think for us, we are worried that the
missions of both agencies or both offices would be undermined.
The EEOC, as has been discussed, is primarily a charge
driven, complaint driven agency. OFCCP is more of a front-end
focused organization. They're doing audits. They're assessing
potential problems and helping employers on the front-end.
We're concerned that by shifting the mission of OFCCP to
the EEOC, it would definitely hamper the EEOC's ongoing work,
particularly its systemic work, which we think is very
important.
We also worry that shifting that responsibility over
without an increase in resources would undermine the EEOC's
ongoing work as well. We already know the EEOC is suffering
from being flat funded over the years, its inability to do
aggressive hiring to meet the charges that are being filed with
the EEOC.
So, we have some serious concerns with that merger.
Mr. Takano. I am heartened to hear that some on the
Majority are concerned about the size of the backlog. I also
understand the strategy of pursuing systemic review. Of the 90
some odd cases in the backlog, do we understand if there is any
pattern of those cases that would lend credence to the systemic
strategy?
Mr. Cox. Well, I think it's important to think about the
backlog and systemic work or the work of the agency in general
as complimentary. When I was at the EEOC working with Chair
Berrien, she prioritized getting rid of the backlog, which has
been talked about, why over the years it has come down. It's
still significant, but it's come down significantly over the
years.
I think the way the backlog comes down is by looking at
charges, resolving some that are not meritorious, moving some
along the enforcement track, and then considering moving those
down the enforcement track to possible litigation.
Also, identifying those charges which again will have large
impacts, that will have the ability to significantly move and
protect a broad swath of rights in a particular industry.
So, working on the backlog and reducing that is not at all
at odds with systemic work or the work of the agency as a
whole. I think what we want to do is think creatively about how
we can use our investigative tools up front to make sure we can
reduce the backlog, but also be strategic and focus on the most
egregious discrimination that we see out there.
Mr. Takano. Can you address more about the issue of pay
data? We have heard a number of witnesses claim it is not going
to do any good or it has no real purpose.
Mr. Cox. Sure. As I said before to Mr. Scott, you know, the
need for the pay data is clear, the disparities, particularly
racial disparities, are well known and well documented.
The critique that has been leveled that somehow the EEOC
data collection is flawed does not remove the need to address
pay discrimination, and what the EEOC would do with the data
that has not really been discussed is not only use it for
enforcement tools affirmatively, but provide an aggregate look
at where we are with regard to pay discrimination regionally,
by industry, they could do reports that would inform the public
and employers about pay discrepancies, and to the extent
employers are doing their own work internally that they think
is better, I think one way to approach this is for them to
partner with the EEOC and help them improve their data
collection.
I don't think the answer is--I know the answer is not to
comply with the need to resolve pay discrimination.
Mr. Takano. Thank you, Mr. Chairman.
Chairman Byrne. Thank you, Mr. Takano. The chair now calls
on Mr. Grothman of Wisconsin for five minutes.
Mr. Grothman. Sure. I will start with Ms. Ponder or Ms.
Vann. I am looking at this EEO-1 Form, which is the old form,
which just hits me as incredibly burdensome, and I guess the
number of data points is going to increase by a factor of over
10. Who has to fill out this form?
Ms. Ponder. In most companies, it is the H.R. Payroll
Department.
Mr. Grothman. Which companies?
Ms. Ponder. Companies that have over 50 employees in one
location.
Mr. Grothman. Any company with at least 50 employees has to
fill out one of these forms?
Ms. Ponder. Yes.
Mr. Grothman. How long has this been going on? How long
have we been putting them under the problem of having to fill
out this form or a predecessor of this form?
Ms. Ponder. That, I don't know.
Mr. Grothman. Anybody know?
Ms. Vann. Decades.
Mr. Cox. Over 50 years.
Mr. Grothman. Over 50 years. Good we have Mr. Cox here, he
knows what is going on. Over 50 years. For those of you back
home that cannot see it, we have a form listing income, a
plethora of job descriptions, male/female, and a variety of
different races or ethnic groups here. This has been going on
for 50 years.
When you fill out this form, does it affect any hiring,
firing, or promotion decisions of companies, and when they make
these decisions, do they worry about how it is going to look on
this form?
Ms. Ponder. I can speak for my company, and we do look at
them on a yearly basis. The form as it is today does give
information where we are as far as men and women and the
different races, and we do make sure that we're following the
data there.
I can tell you our internal data is much more specific, but
we're going to look at the EEO-1 Report as it stands today.
Mr. Grothman. You are with SHRM. It is the Society for
Human Resource Management; right?
Ms. Ponder. Yes.
Mr. Grothman. When you make a hiring decision or a firing
decision or a promotion decision, you begin to think how is it
going to look at the end of the year on my EEO-1; correct?
Ms. Ponder. Not how it's going to look, but are we actually
hiring a diverse workforce. It's a tool that we can use today.
It's one of many tools that we use to make sure we're hiring a
diverse workforce.
Mr. Grothman. You come from a big company, I take it. I do
not know. How many employees?
Ms. Ponder. Over 25,000, in charge of about 1,000 in the
U.S.
Mr. Grothman. So, you probably do this in-house, but the
smaller companies, they hire firms to fill out these forms for
them; correct?
Ms. Ponder. Correct.
Mr. Grothman. Usually, when those firms contract out to
somebody, those organizations make suggestions as to who they
should hire, I am told. Is that true?
Ms. Ponder. As far as looking at the form as it is now?
Mr. Grothman. Yes.
Ms. Ponder. The form is self-evident, looking at your
population, if you're hiring the right diversity--
Mr. Grothman. It is self-evident you feel you have to hire
certain people, and this has been going on for about 50 years
now, in which we kind of push people into hiring one person
over the other person?
Ms. Ponder. I wouldn't say ``push.'' I would say keep us
informed to make sure we are hiring a diverse workforce in the
locations that we can.
Mr. Grothman. It affects who you hire? These forms affect
who you hire, you have two people in equal positions or close
to an equal position, you may hire one person over the other
person so it looks good on the form?
Ms. Ponder. I've never done that.
Mr. Grothman. You may or may not have. You say you are
working towards making the form look better; correct?
Ms. Ponder. We would like to make sure we're hiring a
diverse workforce in the locations--
Mr. Grothman. You are saying things but both things cannot
be true. Either you are looking to make the numbers come out
right for the federal government or you are not.
Ms. Ponder. Not for the federal government. We don't base
our hiring decisions on the EEO-1 Report. We base our hiring
decisions on many data points to make sure again that our
workforce is diverse. A diverse workforce is better for us.
There are more ideas. There's more inputs coming into the
business. Diversity is important for many reasons. The EEO-1
Report is one tool that we can use to see how we're doing.
Mr. Grothman. Okay. I will move on. How much do you think,
and either for you or Ms. Vann, nationwide, we spend every year
even filling out the current form?
Ms. Vann. Sir, I don't have a precise estimate, but I would
say it is in the tens of millions of dollars.
Mr. Grothman. I will wait around for the second round.
Chairman Byrne. Thank you, Mr. Grothman. The chair now
recognizes the gentlewoman from North Carolina and my co-chair
in the HBCU Caucus, Ms. Adams, for five minutes.
Ms. Adams. Thank you, Mr. Chair, thank you, Ranking Member
Takano, for bringing us together and to the panel, thank you
very much for your testimony today, to discuss an issue that
has major implications for our nation's economic outlook.
The EEOC plays a critical role in promoting equal
employment opportunity for American workers, including young
people, our next generation of workers. Now more than ever we
must do what we can to promote employment opportunities for
youth. Nationally, almost 5 million young people are
disconnected from both school and work.
In my district in North Carolina, almost 15,000 young
people are disconnected, and the disconnection rate for black
youth is 16 percent. EEOC plays a pivotal role in breaking down
barriers of employment for young people, especially young men
of color.
I do support the discussion about diversity. I think that
is so critical, and I hope we are looking at the focus as well
as making sure we are being inclusive.
As a follow up, Mr. Cox, first of all, can you specifically
speak to how EEOC's guidance on criminal background checks can
help lessen barriers to employment for young people, especially
young men of color?
Mr. Cox. Certainly. First of all, the EEOC has an entire
program dedicated to youth and youth at work, doing public
education, designed public education programs focused on
particular employment responsibilities and rights associated
with work targeting youth.
With regard to criminal background checks and criminal
records, as I said before, the discredited war on drugs has
disproportionately impacted people of color or communities of
color, and given the prevalence of criminal records in
communities of color and the ripple effect that it has had on
young men of color, yes, eliminating blanket exclusions based
on a criminal background would definitely help advance
opportunities for that group.
Ms. Adams. So, as a follow up, can you talk a little bit
about what impact lessening these barriers and EEOC engagement
in general can have on the economic outlook for communities of
color?
Mr. Cox. Sure. Well, with regard to criminal background
checks?
Ms. Adams. Right, absolutely.
Mr. Cox. We know folks with criminal records face a number
of barriers, folks who are newly released from prison or folks
who have criminal records but never went to prison, facing
enormous lifelong barriers, ability to get a job, ability to
have housing, ability to get an education, all of which have
ripple effects for them, for their communities, for their
children going forward. Reducing earning opportunities,
reducing opportunities for advancement economically. It impacts
the entire community.
It puts our communities at risk. We know that not having a
job, not having housing, not having an education increases the
likelihood that someone will recidivate. By offering
opportunities, by removing the Scarlet Letter of sorts, of a
criminal record, and removing the blanket exclusion of those
with criminal records, we offer opportunities to increase
economic opportunities for entire communities, but also to make
our communities safer.
Ms. Adams. Thank you, sir. In Footnote 42, page 17, Ms.
Olson essentially asserts that for nursing homes or other
health care facilities, it might be too expensive to assess
whether a drug dealer or serial rapist is a suitable fit for
employment.
Mr. Cox, in your opinion, how difficult or expensive is it
actually for an employer to simply conduct an individualized
assessment at the appropriate stage in the hiring as the 2012
guidance recommends?
Mr. Cox. Sure. Well, two responses to that. First, I think
it is important to reorient ourselves with regard to what we're
talking about here. We're taking about a mandate pursuant to
the Civil Rights Act of 1964. These are activities that
employers should have been complying with since 1975.
The guidance merely restates those requirements, laying out
three tests that employers should apply regarding whether or
not to exclude someone with a criminal record.
So, I think the guidance really affords employers an
opportunity to be efficient in how they conduct this. It lays
out a very good, clear plan for how employers should look at a
candidate and decide whether or not they should be excluded.
The individualized assessment while not required by Title
VII, in some ways breathes life into that process, and frankly,
allows an employer to really incorporate that inquiry into its
normal hiring process.
Ms. Adams. Okay. Thank you very much. Mr. Chair, I yield
back.
Chairman Byrne. Thank you, Ms. Adams. The chair now
recognizes the distinguished gentleman from New Jersey, Mr.
Norcross.
Mr. Norcross. Thank you, Mr. Chairman and ranking member. I
represent over 200,000 people 55 years old or older. They have
worked hard to build careers, raise families, excel at their
jobs. Become outstanding members of their communities.
We all know our economy is changing. Most people no longer
work at just one company or even in the same profession for
their entire career. This can be particularly difficult for
older Americans who reinvent their career if their job becomes
obsolete.
For example, when a sales rep in New Jersey hit 60 years
old, her quotas were changed completely to make it
unachievable. Same thing happens for others over the age of 55.
It is vital we protect employment opportunities for older
Americans and perhaps more important now than ever before.
A few weeks ago, the House passed the American Health Care
Act that loosens the rules that allow insurance companies to
charge older Americans higher premiums. Half of all Americans
share in the cost of their health insurance premiums with their
employers. When health insurance premiums cost more for older
employees, it costs more for the employers.
This creates another incentive for employers to use
discriminatory practices, fire or avoid hiring older Americans
altogether.
Mr. Cox, talk about some of the challenges facing older
Americans in the workforce as it relates to discrimination,
reminding you that this is the 50th anniversary of the Age
Discrimination and Employment Act in our country.
Mr. Cox. Thank you, Congressman. Two responses. First, when
I was at the EEOC, one of the major concerns that was raised
was agreements that folks would be forced to sign that they
would retire after a certain point in their employment process.
There were cases that the EEOC litigated in that regard, and
had a lot of opposition from my colleagues on this panel
regarding the efficacy of extending age discrimination laws and
strategies to protect that group.
So, I think that is something we need to be aware of and
think about. When someone goes and applies for a job and agrees
to a job at a certain age, and they are in some ways coerced
into signing a document saying at 55 or 60, they're going to
retire, we need to be looking very closely at that. I think the
EEOC was doing that, and I hope they will continue.
I think the other thing to consider is that all of the
strategies that we have been talking about, disparate impact,
systemic, really apply across the board, across all of the
EEOC's bases within which it does its work, whether that be
race, sex, age, LGBT, or anything else.
So, I think when you attack disparate impact or you attack
systemic in one context, you really are pulling a thread at the
overall enforcement strategy and tapestry of the agency that
will affect everyone in this country who works, whether they be
someone over 40 or over 55. Whether they are someone who faces
discrimination based on race or sex.
Mr. Norcross. Certainly, in making those decisions,
employers take many things into consideration, like costs
versus relevancy, experience of their employees is extremely
important.
You have two sides of the equation, and as we look into our
health care system and the costs for older Americans are going
to go up, that really impacts some of the decisions and the
data collected is so relevant because particularly in a small
company, is not able to look at that from their side of the
aisle. It is very difficult to know what the employer is paying
everybody.
That is why the information collected is so important.
Would you not agree?
Mr. Cox. I would, Congressman. I think a critically
important part of all of this is collecting it in an aggregate
way. Obviously, the EEOC can use the data to inform its own
enforcement, but for the Legal Defense Fund, it's critical for
us to be able to see aggregately how an industry is behaving,
how a particular set of employers are behaving in a region.
We want to be able to lift up that information to inform
our stakeholders, to inform other employers regarding the
importance of not discriminating based on race and based on
pay, and we want to be able to use that to educate folks.
Mr. Norcross. Without this information, in many ways it
would be impossible to see that.
Mr. Cox. That's correct.
Mr. Norcross. Thank you. I yield back.
Chairman Byrne. Thank you, Mr. Norcross. The chair now
recognizes the gentleman from Arizona, Mr. Grijalva, for five
minutes.
Mr. Grijalva. Thank you very much, Mr. Chairman. Mr. Cox,
the unstated choice being presented today is the EEOC's work on
individual cases versus systemic, broad-based, policy and
practice over multiple entities, is it an either/or
proposition?
Mr. Cox. No, it's not, Congressman. I think, as I said
earlier, and I really want to emphasize this, EEOC is a charge
driven organization. It's a charge driven agency. It all begins
with a charge. You look at that charge and you make a
determination regarding the strategy that you're going to use
to pursue it.
Sometimes that charge may evolve into a larger systemic
case, some folks would call that a ``class'' case, although the
EEOC does not have that specific authority in the same way my
organization does and can pursue.
The bottom line is it all begins with a charge. It all
begins with the charge comes through the door and the decisions
are made on the merits regarding what to do.
I think the other piece to think about is the EEOC sets
priorities. The one thing we haven't talked about is the
strategic enforcement plan that the EEOC issued this year and
the last year, which lays out priorities for the agency to
pursue, including emerging areas of discrimination. That also
helps shape the priorities and the lens it uses in evaluating
any of the charges that come in.
Mr. Grijalva. The other question is--I do not know what the
Trump recommendation is in terms of the budget regarding the
EEOC, in particular, what allocation is being indicated there.
Given the fact that maybe for the last four fiscal years,
it has basically flat lined, not a reduction in EEOC activity,
and the backlog that people complain about, it is a resource
issue from your perspective, being able to deal individual plus
what we just said on the either/or proposition?
Mr. Cox. Sure. I think with regard to the backlog and with
regard to its ability to file more cases, do more
investigations, it's definitely a resource question. There have
been a number of years, with all Federal agencies, but
particularly the EEOC, who typically is under resourced from
the very beginning. They have been living with continuing
resolutions that flat fund them, but also living with, in the
time I was there, a government shutdown, hiring freezes, the
inability to actually source and plan for hiring in a way that
is consistent with and allows them to be strategic, and that is
something we all would favor. We think more resources would be
in line.
Mr. Grijalva. Accountability in terms of employment
practices in this nation is an important part of the
responsibility of the EEOC. We have not spoken about that, but
I think it is important today in the testimony that EEOC,
whether it is systemic cases, broad-based, the individual
cases, provide fairness and the enforcement of law, and
accountability.
Could you speak to the issue of accountability and why the
function is tied to that?
Mr. Cox. Sure. I'm glad you asked that question. I think it
is important not to lose sight in our discussion today about
what this is frankly all about.
The Civil Rights Act of 1964 is the embodiment of Brown v.
Board of Education, which was sort of the tool for removing the
stain of race discrimination in this country. The EEOC is the
offshoot of the Civil Rights Act.
So, it's important not to comodify rights. It's important
not to simply see them as a cost of doing business.
I think my colleagues, if they have a concern about Brown,
they have a concern about the Civil Rights Act of 1964, we
should actually have that conversation separately, and I'm
happy to have that conversation, but I think today we should be
talking about how we make the EEOC better, and how we can
actually improve on its enforcement capabilities, how we can
make sure the EEOC is holding all of us accountable, to make
sure we're increasing employment opportunities.
Mr. Grijalva. It is not about window dressing or it is not
about them. It is a broad-based responsibility, not only to the
Civil Rights Act, but to employment discrimination across many
areas in this country.
I yield back, Mr. Chairman.
Chairman Byrne. Thank you, Mr. Grijalva. The chair now
recognizes the gentleman from California, Mr. DeSaulnier, for
five minutes.
Mr. DeSaulnier. Thank you, Mr. Chairman. I want to thank
the witnesses, the chairman and the ranking member for having
this hearing.
It is a little bit hard to process for me at this point in
my life having lived through managing and owning businesses in
California in the 1970s and 1980s and 1990s, when we had
affirmative action, and in California, where we have fairly
aggressive mechanisms in our legal process, but also just
culturally, where equal opportunity, I always thought as an
employer, was something that benefitted everyone. In the 30 to
35 years I managed people, I can never remember it being a
burden.
Of course, as a small business person, you are always
struggling, so when you have added layers, you have to think
about it, first of all, it is just human nature. You tend to
think how this makes your job more difficult, but then you
think about the greater benefit.
I certainly think in the Bay Area in California, we have
benefitted from these protections, irrespective of the group of
people we were trying to protect, and in a period of time when
in this country opportunity is suffering in a country that
prides itself on merit and hard work and the ability for talent
to be able to rise up, that we are going in the opposite
direction in this country, particularly in these protected
classes.
Mr. Cox, I have a couple of questions for you. We have had
testimony today that at least appeared to be critical of the
mediation process at EEOC, and who should accept the burden,
and whether that was impartial or not.
My understanding is the mediators are vetted to make
certain they are impartial as possible, and the government
actually covers the costs.
Could you illuminate us on that?
Mr. Cox. Sure. Yes, the government does cover the costs of
mediation, that is my understanding as well. I think the
mediation process is one tool the EEOC uses to resolve claims
before litigation, like conciliation, like any other process.
In the mediation process, in terms of who is speaking for
the EEOC, that is the enforcement personnel, the folks who are
doing the investigation, the folks who are in some ways
advocating for the position of the EEOC, but the mediator
stands as someone in between to try to work out the issues that
are there.
Mr. DeSaulnier. I want to talk a little bit about amicus.
You obviously are very active in your role in the amicus
subject. There has been criticism that the amicus process at
the EEOC has had numerous ``defeats.'' Could you give your
perspective on that view?
Mr. Cox. Sure. Well, I can talk about how we approach our
amicus program. First of all, amicus curiae offer their
perspective to a court. They are called ``Friend of Court
Briefs'' that are filed at any level within our judicial
system.
It's designed for parties or organizations that have an
interest in a particular matter to share their perspective and
expertise, and the EEOC's amicus program, they take great pride
in it. The EEOC has an enormous amount of experience across a
wide range of areas, so they have a robust program that they
engage in.
At the Legal Defense Fund, we do the same thing. We partner
with the EEOC in filing amicus briefs in cases that they are
working on, again, when we have an interest and we want to be
able to advance our perspective on a particular matter.
Mr. DeSaulnier. I have one other area that I want you to
respond to or have the opportunity to respond to. There has
been testimony today that ``Rather than focusing on increasing
its systemic litigation docket, the EEOC should do more on the
front-end to ensure that all discrimination charges it receives
are properly categorized, investigated, and resolved.''
On the surface, that makes perfect sense. Could you respond
in the context of their budget being flat lined recently?
Mr. Cox. Sure. Certainly, aligning the budget numbers with
the amount of charges coming in would certainly help. I think
the EEOC certainly has in place a strategy for dealing with and
addressing charges that come in.
This is in some ways responsive to your question, this
notion that the EEOC is trigger happy or EEOC is just willy-
nilly filing lawsuits is belied by the fact that they filed 86
lawsuits in 2016, brought in 92,000 charges.
Some would say and some have said that is a problem, if
they filed double that, folks again on the panel would say
that's a problem. I think it doesn't indicate that the EEOC is
wildly filing lawsuits as opposed to dealing with and
addressing charges on the front-end.
I think increased resources and allowing the EEOC to be
able to plan for hiring, again, this sort of willy-nilly C.R.
approach that we have had in our budgeting doesn't allow
agencies to properly plan, and I think that's been an issue.
Mr. DeSaulnier. Thank you, Mr. Cox. I yield back.
Chairman Byrne. The gentleman yields back. I would like to
thank all of our witnesses for taking the time to testify
before the subcommittee today. You each did a splendid job.
Thank you for your testimony.
Mr. Takano, do you have any closing remarks?
Mr. Takano. I do, Mr. Chairman. Mr. Chairman, I appreciate
that you held the hearing today on this subject. The name of
our subcommittee, I want to remind everyone, is Workforce
Protections, meaning that we should be doing our best to
protect workers.
Mr. Chairman, the EEOC's job should be about getting
results for America's workers, not providing full employment
for law firms looking for new ways to prevent resolution of a
disputed discrimination case. We know all too well that justice
delayed is justice denied.
We have heard today about the burdens on employers that
some feel the EEOC has placed, but we need to think about
working people. When we talk about banning the box, we are not
just discussing a policy initiative, we are talking about
allowing real men and women a fair shot at a good job and life.
When we talk about the EEO-1 Pay Data Form and the EEOC's
work to end pay discrepancies, we are talking about ensuring
that real people are getting all of their hard-earned money.
The EEOC's work is still very much needed in our workforce,
and we should not seek to hold them back. The Majority's claims
that expanding the EEO-1 Form is burdensome was disproved by
testimony today, even by some of the Majority's own witnesses.
Much of this data has been collected for 50 years, and the
employers already have W-2 data, which is one of the two forms
of data the EEOC is proposing to add to the EEO-1.
Ms. Ponder just told us that most employers' internal
forms, meaning those forms that are not mandated by the federal
government, are more detailed, and EEO-1 is just one of the
forms employers collect and report on.
I very suspicious the claim that data collection proposed
under the EEO-1 Form is overly burdensome, it is admittedly
complex, but I think collecting that data is very much common
sense, and in the interest of trying to address the problem of
pay disparities among minorities and women.
Workers need to be protected, and that is why this
subcommittee exists. As one of the seven openly LGBT members of
Congress, I am encouraged by the work that the EEOC has
undertaken to advocate for the rights of LGBT individuals under
Title VII. All workers should feel safe and welcome in their
work environments. Workers should not feel as though they are
unwanted in their own workplace simply because of who they are,
whom they love, or the color of their skin.
I am disappointed once again, Mr. Chairman, that we have
yet to have another hearing on the EEOC without actually
inviting a representative from the Commission. We need to hear
from the Commissioners directly.
We have seen three of today's witnesses express their
extreme reservations about combining the EEOC with OFCCP as a
recommendation coming down today from the administration.
I thank you for holding this hearing, and I yield back the
balance of my time.
Chairman Byrne. Thank you, Mr. Takano. Once again, I want
to thank the witnesses. The 1964 Civil Rights Act makes America
a better place. I know that because I am from Alabama. Alabama
and things that happened in Alabama had a lot to do with the
fact that we have a 1964 Civil Rights Act. I was nine years old
when it was adopted. I got to grow up in Alabama and watch the
beneficial changes from this law, and I strongly support it. It
has done so many good things for people across America.
I want to make sure we do everything in this subcommittee
to assure that it's there for as far as the eye can see and it
really works for the people of America.
Now, the people that come to the EEOC seeking help are by
definition ``workers.'' They are working, they are getting
paychecks. We take money out of their paychecks every week or
every two weeks, however they are paid. That money comes to the
Federal Government, and it is supposed to go to departments and
agencies that are there to help them.
So, it is disturbing to me when we are supposed to be here
to help them to find out, as I said earlier, unresolved cases
are 90 percent higher in the last eight years than they were
before, 90 percent.
This is how it works, and the witnesses know this. An
individual files a charge with the EEOC, the respondent, the
employer, is told, given notice of it. The EEOC is supposed to
investigate.
There is nothing in that law that says the employee has to
get a lawyer. That is why money was taken out of their
paychecks to pay for this agency to investigate these claims. I
can tell you as a practitioner, I rarely saw an investigation.
Most of the time, there would be this long period of silence,
and then a Right to Sue letter would come down.
As a practitioner, I am a lawyer, that is what I do for a
living, that is fine. You know, it is really not the way it is
supposed to work. That agency was supposed to investigate the
claim, and then if there was merit to it, go do something about
it.
Ms. Ponder and Ms. Vann talked about mediation. It works.
You did not have to bring a claim in a lot of these cases, you
mediate it and you get it resolved, quickly, as Ms. Ponder
said, which is good for both the employer and the employee.
Yes, you can do all that without a lawyer, and the employee
does not have to pay a lawyer or have money taken out of
whatever, the recovered amount is.
It is better for the working people of America that we have
an agency that simply does its job, and the evidence is
overwhelming that in the last eight years, the EEOC did not do
its most fundamental job, and we need to get it back to doing
that fundamental job.
I have heard a lot about these systemic cases. If there is
a real systemic case out there, go make it. When I was a
lawyer, that is what judges would tell us. Go make your case.
The evidence we have is that many of these systemic cases
turned out to be cases they could not make, and they have been
reprimanded by federal judges for trying to make them. A
further waste of resources that we do not have room to waste.
This new EEO-1 plan, I said this earlier, only in the
federal government would we use the Paperwork Reduction Act to
come up with something that increases by 26 times the amount of
information employers already provide. We have already heard
this new data cannot be used as evidence in court, so once
again, we are detracting ourselves from where we are supposed
to be, which is taking care of these claims by individual
Americans, the very heart of what the EEOC is supposed to do.
I want very much for the EEOC to get back to the role
designed by the 1964 Act for it to do. We are all about the
individual workers in America on this subcommittee. I thought
each and every one of you did a great job. You laid out the
issues for us in a way that I think we all can understand.
Now, it is our job on this subcommittee and the committee
as a whole to work together to make sure we get the EEOC back
to doing what it is supposed to do. That is to protect every
American from unlawful discrimination by using the authority
they have had for over 50 years, and using it in the
appropriate way.
There being no further business, this subcommittee stands
adjourned.
[Additional submission by Chairman Byrne follows:]

[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 11:32 a.m., the subcommittee was adjourned.]

[all]

MEMBERNAME	BIOGUIDEID	GPOID	CHAMBER	PARTY	ROLE	STATE	CONGRESS	AUTHORITYID
Davis, Susan A.	D000598	7858	H	D	COMMMEMBER	CA	115	1641
Wilson, Joe	W000795	8142	H	R	COMMMEMBER	SC	115	1688
Grijalva, Raul M.	G000551	7804	H	D	COMMMEMBER	AZ	115	1708
Foxx, Virginia	F000450	8028	H	R	COMMMEMBER	NC	115	1791
Courtney, Joe	C001069	7867	H	D	COMMMEMBER	CT	115	1836
Walberg, Tim	W000798	7992	H	R	COMMMEMBER	MI	115	1855
Shea-Porter, Carol	S001170	7528	H	D	COMMMEMBER	NH	115	1861
Fudge, Marcia L.	F000455	8101	H	D	COMMMEMBER	OH	115	1895
Hunter, Duncan D.	H001048	7857	H	R	COMMMEMBER	CA	115	1909
Polis, Jared	P000598	7860	H	D	COMMMEMBER	CO	115	1910
Guthrie, Brett	G000558	7954	H	R	COMMMEMBER	KY	115	1922
Roe, David P.	R000582	8148	H	R	COMMMEMBER	TN	115	1954
Wilson, Frederica S.	W000808	7889	H	D	COMMMEMBER	FL	115	2004
Rokita, Todd	R000592	7943	H	R	COMMMEMBER	IN	115	2017
Barletta, Lou	B001269	8129	H	R	COMMMEMBER	PA	115	2054
Bonamici, Suzanne	B001278	8367	H	D	COMMMEMBER	OR	115	2092
Takano, Mark	T000472		H	D	COMMMEMBER	CA	115	2110
Messer, Luke	M001189		H	R	COMMMEMBER	IN	115	2130
Byrne, Bradley	B001289		H	R	COMMMEMBER	AL	115	2197
Adams, Alma S.	A000370		H	D	COMMMEMBER	NC	115	2201
Norcross, Donald	N000188		H	D	COMMMEMBER	NJ	115	2202
Brat, Dave	B001290		H	R	COMMMEMBER	VA	115	2203
DeSaulnier, Mark	D000623		H	D	COMMMEMBER	CA	115	2227
Allen, Rick W.	A000372		H	R	COMMMEMBER	GA	115	2239
Stefanik, Elise M.	S001196		H	R	COMMMEMBER	NY	115	2263
Grothman, Glenn	G000576		H	R	COMMMEMBER	WI	115	2276
Blunt Rochester, Lisa	B001303		H	D	COMMMEMBER	DE	115	2313
Rooney, Francis	R000607		H	R	COMMMEMBER	FL	115	2323
Krishnamoorthi, Raja	K000391		H	D	COMMMEMBER	IL	115	2325
Mitchell, Paul	M001201		H	R	COMMMEMBER	MI	115	2334
Lewis, Jason	L000587		H	R	COMMMEMBER	MN	115	2335
Espaillat, Adriano	E000297		H	D	COMMMEMBER	NY	115	2342
Smucker, Lloyd	S001199		H	R	COMMMEMBER	PA	115	2346
Garrett, Thomas A., Jr.	G000580		H	R	COMMMEMBER	VA	115	2353
Estes, Ron	E000298		H	R	COMMMEMBER	KS	115	2358

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