[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
                      EXAMINING THE REGULATORY AND 
                       ENFORCEMENT ACTIONS OF THE 
                EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. House of Representatives

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

              HEARING HELD IN WASHINGTON, DC, MAY 22, 2013

                               __________

                           Serial No. 113-19

                               __________

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

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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN KLINE, Minnesota, Chairman

Thomas E. Petri, Wisconsin           George Miller, California,
Howard P. ``Buck'' McKeon,             Senior Democratic Member
    California                       Robert E. Andrews, New Jersey
Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Virginia Foxx, North Carolina            Virginia
Tom Price, Georgia                   Ruben Hinojosa, Texas
Kenny Marchant, Texas                Carolyn McCarthy, New York
Duncan Hunter, California            John F. Tierney, Massachusetts
David P. Roe, Tennessee              Rush Holt, New Jersey
Glenn Thompson, Pennsylvania         Susan A. Davis, California
Tim Walberg, Michigan                Raul M. Grijalva, Arizona
Matt Salmon, Arizona                 Timothy H. Bishop, New York
Brett Guthrie, Kentucky              David Loebsack, Iowa
Scott DesJarlais, Tennessee          Joe Courtney, Connecticut
Todd Rokita, Indiana                 Marcia L. Fudge, Ohio
Larry Bucshon, Indiana               Jared Polis, Colorado
Trey Gowdy, South Carolina           Gregorio Kilili Camacho Sablan,
Lou Barletta, Pennsylvania             Northern Mariana Islands
Martha Roby, Alabama                 John A. Yarmuth, Kentucky
Joseph J. Heck, Nevada               Frederica S. Wilson, Florida
Susan W. Brooks, Indiana             Suzanne Bonamici, Oregon
Richard Hudson, North Carolina
Luke Messer, Indiana

                    Juliane Sullivan, Staff Director
                 Jody Calemine, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                    TIM WALBERG, Michigan, Chairman

John Kline, Minnesota                Joe Courtney, Connecticut,
Tom Price, Georgia                     Ranking Member
Duncan Hunter, California            Robert E. Andrews, New Jersey
Scott DesJarlais, Tennessee          Timothy H. Bishop, New York
Todd Rokita, Indiana                 Marcia L. Fudge, Ohio
Larry Bucshon, Indiana               Gregorio Kilili Camacho Sablan,
Richard Hudson, North Carolina         Northern Mariana Islands
                                     Suzanne Bonamici, Oregon



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on May 22, 2013.....................................     1

Statement of Members:
    Courtney, Hon. Joe, ranking member, Subcommittee on Workforce 
      Protections................................................     4
        Prepared statement of....................................     6
    Walberg, Hon. Tim, Chairman, Subcommittee on Workforce 
      Protections................................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Berrien, Hon. Jacqueline A., Chair, U.S. Equal Employment 
      Opportunity Commission.....................................     7
        Prepared statement of....................................     9

Additional Submissions:
    Ms. Berrien:
        EEOC report, ``Strategic Plan for Fiscal Years 2012-
          2016,'' Internet address to............................    51
        EEOC report, ``Strategic Enforcement Plan FY 2013-2016,'' 
          Internet address to....................................    51
        Response to questions submitted for the record from:
            Hudson, Hon. Richard, a Representative in Congress 
              from the State of North Carolina...................    70
            Chairman Walberg.....................................    56
        Attachment to response submitted for the record..........    72
    Mr. Courtney:
        Letter, dated May 21, 2013, from the American Association 
          of Retired Persons.....................................    26
        Letter, dated May 21, 2013, from the Leadership 
          Conference on Civil and Human Rights, National 
          Partnership for Women & Families.......................    27
        The National Council of EEOC Locals, No. 216, AFGE/AFL-
          CIO, prepared statement of.............................    35
        Letter, dated Jan. 18, 2013, from Lawyers' Committee for 
          Civil Rights Under Law.................................    38
    Mr. Hudson, questions submitted for the record...............    55
    Chairman Walberg:
        Letter, dated June 6, 2013, from the U.S. Chamber of 
          Commerce...............................................    30
        Questions submitted for the record.......................    51


                      EXAMINING THE REGULATORY AND
                    ENFORCEMENT ACTIONS OF THE EQUAL
                   EMPLOYMENT OPPORTUNITY COMMISSION

                              ----------                              


                        Wednesday, May 22, 2013

                     U.S. House of Representatives

                 Subcommittee on Workforce Protections

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:03 a.m., in 
room 2175, Rayburn House Office Building, Hon. Tim Walberg 
[chairman of the subcommittee] presiding.
    Present: Representatives Walberg, Kline, Bucshon, Courtney, 
Sablan, and Bonamici.
    Also present: Representative Brooks.
    Staff present: Katherine Bathgate, Deputy Press Secretary; 
Owen Caine, Legislative Assistant; Molly Conway, Professional 
Staff Member; Ed Gilroy, Director of Workforce Policy; Benjamin 
Hoog, Legislative Assistant; Marvin Kaplan, Workforce Policy 
Counsel; Nancy Locke, Chief Clerk; Donald McIntosh, 
Professional Staff Member; Brian Newell, Deputy Communications 
Director; Krisann Pearce, General Counsel; Molly McLaughlin 
Salmi, Deputy Director of Workforce Policy; Mandy Schaumburg, 
Education and Human Services Oversight Counsel; Nicole 
Sizemore, Deputy Press Secretary; Alissa Strawcutter, Deputy 
Clerk; Juliane Sullivan, Staff Director; Tylease Alli, Minority 
Clerk/Intern and Fellow Coordinator; John D'Elia, Minority 
Labor Policy Associate; Daniel Foster, Minority Fellow, Labor; 
Eunice Ikene, Minority Staff Assistant; Leticia Mederos, 
Minority Senior Policy Advisor; Megan O'Reilly, Minority 
General Counsel; Michele Varnhagen, Minority Chief Policy 
Advisor/Labor Policy Director; and Michael Zola, Minority 
Deputy Staff Director.
    Chairman Walberg. A quorum being present, the committee 
will come to order. Good morning to everyone.
    This certainly is a great opportunity for a hearing today 
that has not taken place for an awful long time, and so I am 
glad that we are involved with it this morning.
    Chair Berrien, we are pleased to see you here today. It has 
been a long time since the committee convened a hearing to 
examine the policies and priorities of Equal Employment 
Opportunity Commission and we are grateful you have joined us 
and thank you for your service to our country.
    Ms. Berrien. Thank you.
    Chairman Walberg. Republicans and Democrats share the same 
goal. I think I can say this without a doubt.
    We want to ensure the American people work in an 
environment free of discrimination. Whether or not an 
individual succeeds in a workplace should be determined by 
merit and hard work, not the unlawful prejudice of their boss.
    For most employers, a person's skills and drive to succeed 
are what matter most. However, as always, bad actors will put 
personal bigotries before the talent and dedication of American 
workers. This is wrong.
    A recent case out of Davenport, Iowa, provides a stunning 
example of this difficult reality. According to reports, 32 men 
with intellectual disabilities were subjected to abuse and 
discrimination. The deplorable treatment these men faced 
included verbal and physical harassment, substandard living 
conditions, and inadequate medical care.
    EEOC is to be applauded for helping to bring those who 
committed these heinous acts to justice.
    Federal laws prohibiting employment discrimination should 
be vigorously and fairly enforced. That is why we are here 
today.
    There has been a significant shift in both the enforcement 
and regulatory priorities in the EEOC in recent years. It is 
our responsibility to ask tough questions to ensure agency 
policies are in the best interests of workers and employers.
    For example, does it serve the best interests of workers 
and employers when EEOC investigates businesses without 
evidence of wrongdoing?
    The agency has set a goal that up to 24 percent of all 
litigated cases be systemic in nature. At times these 
investigations are launched without any employee alleging 
discrimination. Meanwhile, a backlog of more than 70,000 
discrimination claims by workers continues to plague the 
commission.
    At a time of high unemployment and record federal debt, 
every job and every dollar counts. We should not be diverting 
scarce resources away from workers who believe they have been 
harmed in order to follow a hunch. And we should not be 
dragging our nation's job creators through unnecessary and 
costly investigations without a factual basis of wrongdoing.
    Does it also serve the best interests of workers and 
employers when the full weight of the agency's litigation power 
is ceded to one individual?
    Congress created a commission of 5 members to ensure 
accountability within the agency. Yet for almost 20 years the 
commission has delegated the authority to the Office of General 
Counsel. Under only limited circumstances can the commission 
vote on the general counsel's decision to intervene in 
litigation and these narrow exceptions are not always clear.
    As a result, the general counsel has almost complete 
control over EEOC's enforcement agenda. This cannot be what 
Congress intended and it is having a real impact on the lives 
of workers.
    One case initiated by the general counsel was later 
rejected by a federal district judge. The judge described the 
commission's actions as a, and I quote--``sue first, ask 
questions later litigation strategy,'' and noted that, and I 
quote again--``dozens of potentially meritorious sexual 
harassment claims may now never see the inside of a 
courtroom.''
    Finally, is it in the best interests of workers and 
employers when the commission pursues regulatory policies that 
may make workplaces less safe?
    In April 2012, EEOC revised its longstanding guidance on 
the use of criminal background checks. Should the background 
check reveal a criminal offense, employers will have to conduct 
an, and I quote--``individual assessment'' and identify a 
``business necessity'' that merits denying individual 
employment.
    However, this proposal has already been criticized by one 
federal court. As one federal judge noted almost 25 years ago, 
quote--``Obviously a rule refusing honest employment to 
convicted applicants is going to have a disparate impact upon 
thieves.''
    This policy also puts many employers at risk of running 
afoul of state or local laws that require background checks for 
certain positions of public trust, such as child care 
providers. Employers will bear the burden of any unintended 
consequences stemming from this regulatory change, not EEOC. 
Yet they and the public were denied an opportunity to comment 
on the proposal before it became final.
    Public meetings on broader topics isn't the level of 
openness and transparency the American people deserve. 
Shouldn't workers and employers have an opportunity to comment 
on public policy changes that affect their workplaces?
    Chair Berrien, these are serious questions that I hope we 
can discuss with you today. I know that it is a lot to address 
in one hearing. However, we hope this hearing starts a new, 
more open dialogue between the committee and the EEOC, and that 
is our responsibility as well as yours.
    As I noted earlier, we all share the same goal and only 
when we work together can we move closer toward that goal.
    Thank you again for being with us today.
    I will now recognize my distinguished colleague, Joe 
Courtney, the senior Democratic member of the subcommittee, for 
his opening remarks.
    [The statement of Chairman Walberg follows:]

           Prepared Statement of Hon. Tim Walberg, Chairman,
                 Subcommittee on Workforce Protections

    Good morning everyone. Chair Berrien we are pleased to see you 
today. It has been a long time since the committee convened a hearing 
to examine the policies and priorities of the Equal Employment 
Opportunity Commission. We are grateful you've joined us and thank you 
for your service to our country.
    Republicans and Democrats share the same goal: We want to ensure 
the American people work in an environment free of discrimination. 
Whether or not an individual succeeds in a workplace should be 
determined by merit and hard work, not the unlawful prejudice of their 
boss. For most employers, a person's skills and drive to succeed are 
what matter most. However, bad actors will put personal bigotries 
before the talent and dedication of America's workers.
    A recent case out of Davenport, Iowa provides a stunning example of 
this difficult reality. According to reports, 32 men with intellectual 
disabilities were subjected to abuse and discrimination. The deplorable 
treatment these men faced included verbal and physical harassment, 
substandard living conditions, and inadequate medical care. EEOC is to 
be applauded for helping to bring those who committed these heinous 
acts to justice.
    Federal laws prohibiting employment discrimination should be 
vigorously and fairly enforced. That's why we are here today. There has 
been a significant shift in both the enforcement and regulatory 
priorities at EEOC in recent years. It is our responsibility to ask 
tough questions to ensure agency policies are in the best interests of 
workers and employers.
    For example, does it serve the best interests of workers and 
employers when EEOC investigates businesses without evidence of 
wrongdoing? The agency has set a goal that up to 24 percent of all 
litigated cases be systemic in nature. At times, these investigations 
are launched without any employee alleging discrimination. Meanwhile, a 
backlog of more than 70,000 discrimination claims by workers continues 
to plague the commission.
    At a time of high unemployment and record federal debt, every job 
and dollar counts. We should not be diverting scarce resources away 
from workers who believe they've been harmed in order to follow a 
hunch. And we should not be dragging our nation's job creators through 
unnecessary and costly investigations without a factual basis of 
wrongdoing.
    Does it also serve the best interest of workers and employers when 
the full weight of the agency's litigation power is ceded to one 
individual? Congress created a commission of five members to ensure 
accountability within the agency. Yet for almost 20 years the 
commission has delegated that authority to the Office of General 
Counsel. Under only limited circumstances can the commission vote on 
the general counsel's decision to intervene in litigation and these 
narrow exceptions are not always clear.
    As a result, the general counsel has almost complete control over 
EEOC's enforcement agenda. This cannot be what Congress intended and 
it's having a real impact on the lives of workers. One case initiated 
by the general counsel was later rejected by a federal district judge. 
The judge described the commission's actions as a ``sue first, ask 
questions later litigation strategy'' and noted that ``dozens of 
potentially meritorious sexual harassment claims may now never see the 
inside of a courtroom.''
    Finally, is it in the best interests of workers and employers when 
the commission pursues regulatory policies that may make workplaces 
less safe? In April 2012, EEOC revised its long-standing guidance on 
the use of criminal background checks. Should the background check 
reveal a criminal offense, employers will have to conduct an 
``individual assessment'' and identify a ``business necessity'' that 
merits denying the individual employment.
    However, this proposal has already been criticized by one federal 
court. As one federal judge noted almost 25 years ago, ``Obviously a 
rule refusing honest employment to convicted applicants is going to 
have an disparate impact upon thieves.''
    This policy also puts many employers at risk of running afoul of 
state or local laws that require background checks for certain 
positions of public trust, such as child care providers. Employers will 
bear the burden of any unintended consequences stemming from this 
regulatory change, not EEOC.
    Yet they and the public were denied an opportunity to comment on 
the proposal before it became final. Public meetings on broader topics 
isn't the level of openness and transparency the American people 
deserve. Shouldn't workers and employers have an opportunity to comment 
on policy changes that affect their workplaces?
    Chair Berrien, these are serious questions that I hope we can 
discuss with you today. I know that is a lot to address in one hearing. 
However, we hope this hearing starts a new, more open dialogue between 
the committee and EEOC. As I noted earlier, we all share the same goal 
and only when we work together can we move closer toward that goal. 
Thank you again for being with us today.
    I will now recognize my distinguished colleague Joe Courtney, the 
senior Democratic member of the subcommittee, for his opening remarks.
                                 ______
                                 
    Mr. Courtney. Well, good morning, Mr. Chairman. I want to 
thank you for calling today's hearing to put the spotlight on 
the important work of the Equal Employment Opportunity 
Commission, and particularly under the leadership of Chairman 
Jacqueline Berrien, who is here today.
    This is the first time we have actually invited the 
chairwoman to the House in the last 3 years, so again, I want 
to applaud the--you know, this action today to, again, start a 
dialogue with our subcommittee on the important work that the 
Equal Employment Opportunity Commission engages in every single 
day. The work of the EEOC is critical, particularly when we 
look at the challenges facing the unemployed in our nation.
    Even as the economy has improved, with 7.5 percent 
unemployment rate last month, the unemployment gap has remained 
high for minorities. For African Americans it was 13.2 percent 
and for Latinos, 9 percent in April. And we know, as labor 
economists and experts point to, that discrimination remains 
one of the factors for that disparity.
    Every worker in this country, whether a job applicant or an 
employee, deserves the right to be treated fairly in the 
workplace and judged based upon the ability to do the job. The 
foundation of our civil rights laws is to ensure that all 
Americans have the opportunity to participate in society, to 
provide for themselves and their families, and to contribute to 
the economy.
    Unfortunately, far too often workers are not hired or are 
paid less or fired from their jobs because they are a woman, or 
a pregnant woman, or an African American, or have a disability. 
The EEOC plays an essential role in ensuring fairness and equal 
opportunity in the workplace through its enforcement of our 
federal laws that make it illegal to discriminate against an 
employee or job applicant because of that person's race, color, 
religion, sex, national origin, age, disability, or genetic 
information.
    Despite these protections, nearly 100,000 new charges of 
discrimination were filed with the EEOC last year, and despite 
the commission's efforts to achieve resolutions in these cases, 
they continue to have a backlog, which stands to grow as a 
result of budget cuts and sequester, and that sequester 
chainsaw has hit the EEOC just like it has so many other 
agencies of our government.
    Congress has a responsibility to the nation's workers to 
ensure that should they become a victim of workplace 
discrimination, that they have a place to seek justice. I am 
proud that during the Democratic-led 110th and 111th Congress, 
under the leadership of Speaker Pelosi, we made critical 
improvements to our nation's civil rights laws through the 
enactment of the Americans with Disabilities Act amendments and 
the Genetic Information Nondiscrimination Act, and also passage 
of the Lilly Ledbetter Fair Pay Act, which restored the law to 
what it was prior to the misguided Supreme Court decision in 
Ledbetter v. Goodyear. And in almost every single instance, 
those three laws were enacted with large bipartisan majorities, 
so it does show that there really is, I think, concern on both 
sides of the aisle to make sure that we do better to make a 
more perfect union, as Lincoln said, in terms of a fair 
workplace.
    But despite the progress that we have made there is still 
much left to be done, and I believe there are many issues where 
Democrats and Republicans can join together again to strengthen 
our civil rights laws. The Employment Nondiscrimination Act, 
which I am proud to cosponsor, would prohibit discrimination in 
the workplace because of someone's sexual orientation or gender 
identity. Again, that was recently introduced in both the House 
and the Senate with both Democratic and Republican cosponsors.
    And I urge both chairmen--and I see Mr. Kline here today--
to work with Representatives Polis and Ros-Lehtinen to build 
bipartisan sponsors in the House to bring this long overdue 
legislation back before the committee for its immediate 
consideration.
    I would also urge both chairmen to work with us on the 
Protecting Older Americans Against Discrimination Act. This 
legislation has been modified since it was originally brought 
before the committee under the prior chairman, Chairman 
Miller's, time as leader and is now a bipartisan bill, 
sponsored by Senators Grassley and Harkin in the Senate. I 
believe we, too, could find common ground on this bill to 
protect our nation's older workers.
    And finally, the Paycheck Fairness Act, which has been 
passed twice by this House, again on a strong bipartisan basis, 
should be brought up for immediate consideration so that 
gender-based pay discrimination is finally put on an equal 
footing with our other civil rights laws.
    Mr. Chairman, again, I want to thank you for holding this 
hearing. I am confident that we can find opportunities to work 
together to strengthen our nation's civil rights laws and have 
this subcommittee lead the way.
    I also want to thank, again, Chair Berrien for being with 
us today and thank her for her dedication, her hard work on 
behalf of our nation's workers.
    And I yield back.
    [The statement of Mr. Courtney follows:]

        Prepared Statement of Hon. Joe Courtney, Ranking Member,
                 Subcommittee on Workforce Protections

    Good morning. I want to thank Chairman Walberg for calling today's 
hearing to examine the important work the Equal Employment Opportunity 
Commission is undertaking through the leadership of the Commission's 
chair Jacqueline Berrien. Chair Berrien, I want to thank you for being 
with us today to update the subcommittee on the work of the EEOC.
    The work of the EEOC is critical, particularly when we look to the 
challenges facing the unemployed in our nation. Even as the economy has 
improved, with 7.5 unemployment rate last month, the unemployment gap 
has remained high for minorities--for African Americans, it was 13.2 
percent and for Latinos, 9.0 in April. And we know, as labor economists 
and experts point to, that discrimination remains one of factors for 
the disparity.
    Every worker in this country--whether a job applicant or employee--
deserves the right to be treated fairly in the workplace and judged 
based upon ability to do the job. The foundation of our civil rights 
laws is to ensure that all Americans have the opportunity to 
participate in society, to provide for themselves and their families, 
and to contribute to the economy.
    Unfortunately, far too often workers are not hired, paid less or 
fired from their jobs because they are a woman, or a pregnant woman, or 
an African American or have a disability.
    The EEOC plays an essential role in ensuring fairness and equal 
opportunity in the workplace through its enforcement of our federal 
laws that make it illegal to discriminate against an employee or job 
applicant because of that person's race, color, religion, sex, national 
origin, age, disability or genetic information.
    Despite these protections, nearly 100,000 new charges of 
discrimination were filed with the EEOC last year. And despite the 
Commission's efforts to achieve resolutions in these cases, they 
continue to have a backlog which stands to grow as a result of budget 
cuts and sequester.
    Congress has a responsibility to this nation's workers to ensure 
that should they become a victim of workplace discrimination, they have 
a place to seek justice.
    I'm proud that the Democratic--led 110th and 111th Congresses, 
under the leadership of Speaker Nancy Pelosi, made critical 
improvements to this nation's civil rights laws through the enactment 
of the Americans with Disabilities Act Amendments and the Genetic 
Information Nondiscrimination Act. Also, passage of the Lilly Ledbetter 
Fair Pay Act restored the law to what it was prior to the misguided 
Supreme Court decision in Ledbetter vs. Goodyear.
    Despite the progress we have made, there is still much left to be 
done. And I believe there are many issues where Democrats and 
Republicans can join together to strengthen our civil rights laws.
    The Employment Nondiscrimination Act, which I am proud to 
cosponsor, would prohibit discrimination in the workplace because of 
someone's sexual orientation or gender identity was recently introduced 
in both the House and Senate with both Democratic and Republican co-
sponsors.
    I urge Chairman Walberg and Chairman Kline to work with 
Representatives Polis and Ros-Lehtinen, the bill's bipartisan sponsors, 
to bring this long overdue legislation back before the Committee for 
its immediate consideration.
    I would also urge Chairmen Walberg and Kline to work with us on the 
Protecting Older Workers Against Discrimination Act. This legislation 
has been modified since it was originally brought before the Committee 
under Chairman Miller's leadership and is now a bipartisan bill 
sponsored by Senators Grassley and Harkin in the Senate. I believe we 
too could find common ground on this bill to protect this nation's 
older workers.
    In addition, the Paycheck Fairness Act, which has been passed twice 
by this House on a bipartisan basis should be brought up for immediate 
consideration so that gender-based pay discrimination is finally put on 
equal footing with our other civil rights laws.
    Mr. Chairman, I want to thank you again for holding this hearing. I 
am confident we can find opportunities to work together to strengthen 
this nation's civil rights laws. I also want to once again thank Chair 
Berrien for being before us today and thank her for her dedication and 
hard work on behalf of this nation's workers.
                                 ______
                                 
    Chairman Walberg. I thank the gentleman.
    Pursuant to committee rule 7(c), all members will be 
permitted to submit written statements to be included in the 
permanent hearing record. And without objection, the hearing 
record will remain open for 14 days to allow statements, 
questions for the record, and other extraneous materials 
referenced during the hearing to be submitted in the official 
hearing record.
    It is now my pleasure to introduce our distinguished 
witness.
    The Honorable Jacqueline Berrien is the chair of the Equal 
Employment Opportunity Commission in Washington, D.C. Chair 
Berrien has a distinguished career, including over 15 years of 
practicing civil rights law. She has served as a program 
officer for the Ford Foundation's Peace and Social Justice 
program and the associate director counsel at the NAACP Legal 
Defense and Educational Fund.
    Chair Berrien received her B.A. in government from Oberlin 
College and her J.D. from the Harvard Law School.
    Welcome.
    Before I recognize you to provide testimony, I think you 
know the fire drill with the lights.
    Ms. Berrien. Yes.
    Chairman Walberg. Yellow light gives you a minute left, and 
then screech to a halt as quickly as possible at red. But we do 
want to hear your comments. Our committee will be held to those 
same 5 minutes.
    But without any further information to share, we welcome 
your comments.

        STATEMENT OF HON. JACQUELINE A. BERRIEN, CHAIR,
            EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

    Ms. Berrien. Thank you very much, Chairman.
    Mr. Chairman, good morning.
    Mr. Chairman Kline, good morning.
    Mr. Ranking Member Courtney, good morning, and all members 
of the subcommittee.
    I thank you for inviting me to testify today on behalf of 
the Equal Employment Opportunity Commission. As I have shared 
with the staff of our agency many times, including in the 
visits that I have made to more than half of our 53 offices 
since my tenure began in 2010, one of my most important 
responsibilities and greatest privileges is meeting with 
Members of Congress to share news about agency accomplishments 
and report on our efforts to serve the public and enforce the 
nation's laws prohibiting employment discrimination.
    I have served as chair of the EEOC since April 2010 
together with Commissioners Constance Barker, Chai Feldblum, 
and Victoria Lipnic. Last week Commissioner Jenny Yang was 
sworn in as our newest member, so we are now operating again 
with a full complement of commissioners.
    In a few months this nation will pause to reflect on the 
50th anniversary of the March for Jobs and Justice, which 
occurred just a little distance from this building on the Mall. 
Many years and marches later, that day in August 1963 has such 
an extraordinary impact on our history and was such an 
extraordinary moment in this nation that it is still referred 
to as The March on Washington.
    The people who assembled here that day, including my father 
with me as a toddler in tow, left an indelible imprint on the 
history of the United States of America--one that I think we 
are all proud of as a nation.
    The EEOC was created less than a year after that march with 
the passage of the Civil Rights Act of 1964, so I consider it a 
tremendous blessing and privilege to be responsible for 
stewardship of the EEOC and its resources today. And I thank 
you for the opportunity to appear before you today to discuss 
the plans, challenges, and needs of the EEOC.
    Thank you all for your support of the EEOC and its work and 
I look forward, as I have said in many meetings with individual 
members of this body over the past few years--I look forward to 
continuing to work with you and all Members of Congress and all 
people in this nation who are committed to advancing the 
mission of the EEOC to end and remedy unlawful employment 
discrimination.
    As I start my testimony, or as I move forward, I would like 
to just highlight a few things about the EEOC--a few very basic 
points that I think provide the backdrop for today's 
discussion.
    Despite resource constraints and rising demand for the 
services of the EEOC, the men and women of our agency have 
labored mightily and worked diligently to mitigate the impact 
of the sequester on the people we serve. I greatly appreciate 
their service and recognize that many workplaces, job seekers, 
and employers have been positively impacted by the work of the 
EEOC.
    I am pleased to report to you today that over the past 2 
fiscal years, despite budgetary constraints and receipt of 
record numbers of new discrimination charges, the EEOC has been 
able to resolve more charges than we have received each year.
    As a result, the unresolved private sector charge inventory 
of the EEOC, which some also say--or refer to as a backlog, has 
been reduced. It has been reduced nearly 20 percent since 
fiscal year 2010. That is a significant accomplishment, and 
indeed, it is the first time in nearly a decade that the agency 
has made that progress in resolving charges of discrimination 
and reducing the number of unresolved charges of 
discrimination.
    As I said to your Senate colleagues during my confirmation 
hearing, I recognize fully, as one who has been an advocate for 
and representative of people who have experienced 
discrimination, that our unresolved charges of discrimination 
represent potential instances where justice is denied because 
of delay. So I take very seriously my responsibility and the 
agency's responsibility to address those unresolved charges, 
and that is why I made that one of the priorities during my 
tenure as chair of the EEOC.
    But significantly, neither the laws that we enforce nor the 
priorities--set not only by this commission, but by our 
colleagues across history of the agency and across parties--
have recognized this agency has multiple tools at its disposal 
to address the continuing problem of unlawful employment 
discrimination and we have availed ourselves fully of them. And 
our strategic plan, which was adopted last year, and our 
strategic enforcement plan, also adopted last year, detail more 
fully some of the ways that we deploy those resources and those 
tools that are available to stop and remedy unlawful employment 
discrimination.
    Our strategic plan has three objectives: combating 
employment discrimination through strategic law enforcement, 
preventing employment discrimination through education and 
outreach, and delivering excellent and consistent service 
through a skilled and diverse workforce and effective systems. 
We are dedicated and focused, as an agency and as a commission, 
to ensuring that all of those objectives are met, all with the 
goal of advancing the very, very important mission of the EEOC.
    Our strategic plan communicates to our staff, our 
stakeholders, and to the general public that we are committed 
to making the most strategic use of resources, intensifying and 
enhancing our efforts to prevent unlawful discrimination in the 
workplace, and ensuring that we serve the public well.
    I appreciate this opportunity. I look forward to any 
questions that you may have--any member of the committee may 
have about the work of the agency.
    And again, thank you for inviting me to testify today.
    [The statement of Ms. Berrien follows:]

        Prepared Statement of Hon. Jacqueline A. Berrien, Chair,
              U.S. Equal Employment Opportunity Commission

    Good afternoon Mr. Chairman, Mr. Ranking Member, and Members of the 
Subcommittee. Thank you for inviting me to testify today on behalf of 
the Equal Employment Opportunity Commission (EEOC). The EEOC is a five-
member bipartisan commission responsible for the enforcement of federal 
employment anti-discrimination laws. I have served as Chair of the EEOC 
since April 2010 with Commissioners Constance Barker, Chai Feldblum, 
and Victoria Lipnic. I'm pleased to let you know that, just last week, 
Commissioner Jenny Yang was sworn in as our newest member, so we are 
now operating with a full complement of Commissioners.
    I appreciate the opportunity to appear before you to discuss the 
plans, challenges, and needs of the EEOC. It has been a privilege to 
serve as Chair of the EEOC for the past three years, and it is an honor 
to represent the agency today and in the many meetings with individual 
members of Congress I have attended over the past few years. Thank you 
for your past support of the EEOC, and I look forward to continuing to 
work with the members of this subcommittee and all members of Congress 
to advance the mission of the EEOC in the future.
Fiscal realities
    Mr. Chairman, before I discuss the agency's plans and 
accomplishments in greater detail, I would like to provide some context 
about the current state of the EEOC. I have always considered the 
careful and thoughtful stewardship of the agency's resources to be one 
of my chief responsibilities, but that responsibility has become more 
important given the significant reductions to the EEOC's budget in 
fiscal years 2012 and 2013.
    Our agency, like all federal agencies today, faces many challenges. 
We are, first and foremost, an enforcement agency with limited 
resources. We must operate strategically to fulfill our enforcement 
responsibilities, engage in extensive outreach efforts to promote 
voluntary compliance, educate the public about the laws that we 
enforce, and work diligently to serve the public in the most efficient 
and effective manner possible. I am pleased to report that over the 
past two fiscal years we have been able to resolve more charges than we 
have received each year, which has led to a nearly 20 percent reduction 
in our pending inventory. We have also reduced the average processing 
time for Federal sector resolutions.
    Approximately 80 percent of the EEOC's budget consists of fixed 
expenses of primarily payroll and rent. An additional 9-10 percent is 
dedicated to our partners and your constituents in state and local Fair 
Employment Practices Agencies, also known as FEPAs. Therefore, our 
fixed costs of approximately 90 percent of the agency's budget leaves 
us with little discretion to shift additional resources to meet the 
increasing demands presented by the historically high number of private 
sector charges and federal sector complaints of discrimination.
    Like the rest of the Federal Government, the EEOC is also dealing 
with the across-the-board cuts required under sequestration. To meet 
the demands of sequestration, total programs and projects were reduced 
by 5 percent from the FY 2013 appropriated level, which have required 
reductions in our programs, as well as employee furloughs of up to 
eight days. In an effort to reduce the impact on agency operations and 
staff, we plan to evaluate our budget situation after the first five 
days of furloughs to determine if the remaining three days are 
necessary.
    Throughout this process we are closely monitoring our operating 
plan for additional cost savings. There can be no doubt, however, that 
sequestration has made it more difficult to deliver the services 
Congress requires and the American people expect of the EEOC. The men 
and women of our agency have risen to the occasion, but there is no 
doubt that morale has been impacted. To this end, I have instructed all 
agency leaders to keep their staff well informed of the sequestration 
process and do what they can to mitigate the impact of the sequester on 
our employees and the people we serve. I also want to say here, 
publically, thank you to all of my colleagues at the agency, especially 
those on the front-lines in the field, for their great service to this 
nation.
Strategic vision
    A little more than a year ago, the EEOC adopted a new Strategic 
Plan, which outlines three strategies to advance our mission of 
stopping and remedying unlawful employment discrimination. Our 
strategic objectives are:
    1. Combating employment discrimination through strategic law 
enforcement;
    2. Preventing employment discrimination through education and 
outreach; and
    3. Delivering excellent and consistent service through a skilled 
and diverse workforce and effective systems.
    EEOC's Strategic Plan communicates to our staff, our stakeholders 
and to the general public that we are committed to making the most 
strategic use of our resources, intensifying and enhancing our efforts 
to prevent unlawful discrimination in the workplace, and ensuring that 
we serve the public well. It is through a strategic approach that we 
are striving to build ``ONE EEOC''--an agency that operates in a 
coordinated and seamless manner so that we are responsive to those who 
need our services and that our efforts have a tangible impact on the 
workplace.
    A strategic approach will also help the agency manage our charge 
and complaint inventory in the private, public and Federal sectors. 
Like my predecessor, Chair Gilbert Casellas, who led the Commission in 
adopting the Priority Charge Handling Procedures in 1995, and Chair 
Cari Dominguez, who led the Commission in adopting the recommendations 
of the Systemic Task Force, I have worked together with my Commission 
colleagues, the General Counsel and agency staff to ensure that we make 
the best use of available resources. The Strategic Plan furthers those 
efforts.
    The plan was developed with unprecedented opportunities for a wide 
range of stakeholders, EEOC staff, and interested members of the public 
to provide input. We have continued to engage the public as we have 
entered strategic plan implementation, including during last year's 
development of the Strategic Enforcement Plan and currently the Quality 
Control Plan for Investigations and Conciliations.
    Although the EEOC is in the early stages of implementing the new 
Strategic Plan, as detailed in our Fiscal Year 2012 Performance and 
Accountability Report, we have already begun to make meaningful 
progress toward more strategic and focused use of our resources.
Strategic enforcement
    A key example of our progress is the Commission's adoption of the 
Strategic Enforcement Plan. Informed by staff and public input and in 
keeping with our belief that we will execute our mission more 
efficiently and effectively by targeting specific issues of 
discrimination where federal enforcement is needed most and will have 
the greatest impact, the Commission identified six enforcement 
priorities:
    1. Eliminating barriers in recruitment and hiring;
    2. Protecting immigrant, migrant and other vulnerable workers;
    3. Addressing emerging and developing issues;
    4. Enforcing equal pay laws;
    5. Preserving access to the legal system; and
    6. Preventing harassment through systemic enforcement and targeted 
outreach.
    These priorities were reflected most recently in the EEOC's 
successful litigation against Henry's Turkey Service. Our agency 
secured a historic $240 million jury award for a group of 32 men with 
intellectual disabilities who were subjected to severe abuse, 
segregated housing, and other forms of harassment and discrimination 
over the course of more than two decades. This is the largest award in 
the EEOC's history and is the second largest award ever in an 
employment discrimination case. It took years for our staff to 
investigate and successfully litigate this case, but because of that 
tenacity, we were able to restore the dignity of the workers in this 
case and send a strong message to all that the unlawful conduct in this 
case will not be tolerated in the United States. We were able to 
vindicate the right to work free from unlawful discrimination for all.
    The EEOC is also working collaboratively with other Federal 
agencies, including the Department of Labor's Office of Federal 
Contract Compliance Programs (OFCCP) and the Department of Justice's 
Civil Rights Division. EEOC has strengthened its longstanding 
Memorandum of Understanding with OFCCP to promote greater efficiency 
and coordination in support of the agencies' shared mission of ensuring 
equal employment opportunity under Title VII of the Civil Rights Act of 
1964 and Executive Order 11246. EEOC is also partnering with DOJ to 
more effectively investigate violations of federal equal employment 
laws by state and local employers.
Maximizing impact
    At many points in the EEOC's history, the agency has prioritized 
directing agency resources to prevent and remedy practices that 
adversely impact many workers and job seekers. With the adoption of the 
Systemic Task Force's recommendations in 2006, the EEOC renewed its 
emphasis on systemic enforcement--those cases that involve policies or 
practices that affect multiple employees, an entire industry, an 
occupation, a profession, or an entire geographic area. While systemic 
cases are highly complex and resource-intensive, they typically affect 
a large number of employees or job-seekers directly. By increasing 
public awareness and changing company policies and industry standards, 
these cases also have indirect effects on untold numbers of others.
    To this end, both the Strategic Plan and Strategic Enforcement Plan 
reiterate the importance of systemic enforcement of priority issues. In 
FY 2012, the EEOC resolved 240 systemic investigations, securing 
monetary benefits of $36.2 million for 3,813 individuals.
    Examples of systemic resolutions achieved through the conciliation 
process include a $5.4 million settlement for a class of women in 
Texas, Louisiana, Mississippi, Alabama, and Florida who sought, but 
were denied employment as temporary workers for the oil spill response 
in the Gulf during 2010. Another successful conciliation involved Pepsi 
Beverages (Pepsi), in which the company agreed to pay $3.13 million and 
provide job offers and training to resolve a charge of race 
discrimination. Based on the investigation, the EEOC found reasonable 
cause to believe that the criminal background check policy formerly 
used by Pepsi discriminated against African-Americans in violation of 
Title VII. Pepsi agreed to modify its background check policy and to 
report to the EEOC concerning implementation of its new policy.
    The agency has also seen continued success in its systemic 
litigation program. In the last fiscal year, the EEOC resolved 21 
systemic cases, four of which included at least 50 victims of 
discrimination. Just last month, the EEOC settled a systemic hiring 
discrimination case against Presrite Corporation for $700,000 and job 
offers for over 40 women. The lawsuit alleged that Presrite, a Federal 
contractor, consistently passed-over female applicants in favor of 
less-qualified males for entry-level positions at three Ohio plants.
    The largest litigation monetary recovery of FY 2012 was in EEOC v. 
Yellow Freight, where the EEOC secured an $11 million settlement for 
300 victims of a racially hostile work environment at the Chicago 
trucking firm. Numerous employees complained to the company about 
hangmen's nooses being displayed, racially offensive graffiti in the 
workplace, and other forms of race-based discrimination. Nevertheless, 
the company failed to correct these problems. In addition to obtaining 
monetary recovery, the settlement requires the company to retain 
consultants to examine its discipline and work assignment procedures 
and recommend changes to prevent unlawful discrimination in the future.
    In addition to prioritizing systemic enforcement, the Strategic 
Plan also sets forth a measure to ensure that more of our 
conciliations, consent decrees, and legal resolutions benefit not only 
the charging party but also current and future employees and job 
applicants by including equitable relief designed to end and prevent 
the recurrence of discrimination.
Prevention through education and outreach
    In addition to traditional forms of administrative and legal 
enforcement, strategic law enforcement also requires consistent and 
innovative education and outreach efforts aimed at raising awareness 
amongst employers, employees, and job seekers about their rights and 
responsibilities under the laws the EEOC enforces. These efforts 
encourage voluntary compliance and are another cost-effective way to 
have the greatest impact on the workplace.
    To this end, prevention of unlawful discrimination through 
education and outreach is now clearly identified as a top priority for 
the agency in the Strategic Plan and Strategic Enforcement Plan.
    The agency is currently targeting outreach to vulnerable workers 
and underserved communities and to small and new businesses. The agency 
is also working quickly to update our guidance and other documents on 
the requirements of employment antidiscrimination law and make those 
materials more accessible and user-friendly to non-legal audiences and 
the general public.
    Again, though we are in the early stages of Strategic Plan 
implementation, we have already made significant progress in enhancing 
our outreach efforts. For example, even before the new plan took 
effect, I asked Commissioner Constance Barker to lead a Small Business 
Task Force. Already, the task force has identified mechanisms to 
improve our outreach to small businesses.
    Moreover, in the Federal sector, the EEOC issued two significant 
reports on the barriers facing African Americans and Asian American and 
Pacific Islanders in Federal employment to educate employees and 
managers about particular issues for these communities.
    Finally, the members of the Commission, the General Counsel, and 
many employees of the EEOC participate in events across the country in 
a continuing effort to inform the public about the laws that we 
enforce. In Fiscal Year 2012 alone, agency staff reached more than 
350,000 people in thousands of no-cost and fee-based events held across 
the country; Commissioners Chai Feldblum and Vitoria Lipnic made joint 
presentations on the Americans with Disabilities Act to audiences in 
Seattle, Miami, Boston and Los Angeles; and all Commissioners and the 
General Counsel addressed bar associations, continuing legal education 
programs, and other events throughout the nation. Agency leadership 
also presented at EEOC-sponsored training programs.
Serving the public more efficiently
    The third objective of the Strategic Plan is providing excellent 
service through a diverse and skilled workforce and effective systems. 
In this objective, we recognize the importance of ensuring that agency 
staff are equipped and prepared to deliver excellent service. This 
objective recognizes that the EEOC should strive for continued 
improvements in the timeliness and quality of enforcement activities in 
the private, state and local government, and Federal sectors.
    One of the agency's greatest challenges has been, and continues to 
be, resolving discrimination charges filed by private and Federal 
sector employees and job seekers promptly, while at the same time 
ensuring that the rights of the charging parties and respondents 
receive appropriate attention and respect. Moreover, one of the 
overriding concerns among stakeholders has been improving the quality 
and efficiency of EEOC investigations. To address this concern, the 
EEOC's Strategic Plan calls for the creation of a Quality Control Plan 
for investigations and conciliations. The agency is currently 
developing this plan, and we have again solicited public input 
concerning improvements in the quality of service provided by the 
agency and engaged a diverse group of employees in advising the 
Commission. We expect a plan to be approved by the Commission this 
year.
    Effectively managing and ultimately reducing the inventory of 
unresolved charges remains an important goal for the EEOC. As noted 
earlier, since 2010, with the benefit of renewed investment in the 
staffing, training and technological needs of the EEOC, we have 
achieved a nearly 20 percent reduction in our inventory of unresolved 
charges. Moreover, the agency is no longer addressing this issue as a 
short term or episodic problem and is, instead, working to enhance and 
reinvigorate existing systems to address this challenge on a sustained 
basis. The adoption of our Strategic Enforcement Plan will also assist 
agency leaders and staff in the expeditious management and resolution 
of private sector discrimination charges by streamlining the number of 
priorities. While furloughs necessitated by sequestration will impact 
the Commission's continued ability to slow the growth of our charge 
inventory in the short-term, setting clear priorities provides guidance 
to staff, helping them focus and expedite investigations, which will 
more effectively manage our charge inventory over the long-term.
    Finally, with respect to improving customer service, the EEOC's 
Strategic Plan requires the Commission to make use of technology to 
improve communication by allowing the public to submit and receive more 
information electronically. As we have heard from employees and 
employers, streamlining the private sector charge filing system and 
making information about the status of pending charges accessible 
electronically will serve the interests of workers, employers, and the 
EEOC as we seek to make the best possible use of scarce resources.
    The EEOC continued its focus on expanding the use of technology to 
make the Federal hearings and appeals process faster and more 
effective. We have implemented an electronic file system, which is 
designed to allow Federal agencies the ability to securely submit 
electronic reports of investigation, complaint files, and other 
documents to the EEOC in support of the Federal hearings and appellate 
processes. This system is now available to all Federal agencies for 
their use in transmitting documents electronically to the EEOC. 
Currently, there are 21 parent agencies and 47 sub-agencies utilizing 
this technology for electronic document submission and receipt.
Moving forward
    Despite these accomplishments, our rebuilding efforts are 
incomplete and the progress is fragile. Given the agency's varied 
enforcement responsibilities, we are constantly challenged to meet the 
growing public demand for the services we provide. We are mindful of 
the need to identify ways to reduce spending and have worked diligently 
to cut costs that will not compromise or undermine our ability to 
fulfill our mission. EEOC employees have worked to improve operations, 
provide better service to the public and more effectively and 
efficiently enforce the Federal laws prohibiting employment 
discrimination.
    The EEOC requested a budget of $372.9 million for FY 2014, an 
increase of $12.9 million from the FY 2012 appropriations. These 
resources are vital to maintaining the progress made in rebuilding the 
EEOC's enforcement capacity. Our FY 2014 request will allow us to make 
continued progress on the charge inventory and in carrying out the 
agency's critical work and priorities, including serving the public 
more efficiently and effectively and seeking to prevent discrimination 
through enhanced education and outreach.
    The EEOC is moving forward despite the fiscal challenges and 
demands we face. The agency is on track in implementing the goals of 
its Strategic Plan and making meaningful progress towards becoming 
``One EEOC.''
    Thank you for this opportunity to highlight some of our recent 
accomplishments, all of which are helping us to achieve our mission to 
stop and remedy unlawful employment discrimination. I look forward to 
working with you in the future and will be happy to answer any 
questions that you may have.
                                 ______
                                 
    Chairman Walberg. Thank you, Ms. Berrien.
    And now will open for questions from the committee, and I 
recognize myself for 5 minutes of questions.
    As I mentioned in my opening comments, I am particularly 
concerned about the delegation of litigation authority to the 
general counsel of the EEOC. The December 2012 Strategic 
Enforcement Plan delineated a list of situations in which a 
decisive--or--which a decision to commence or intervene in 
litigation must be brought to the commission for a vote.
    Specifically, I am concerned commissioners cannot force an 
opportunity to vote and there is no checks and balances system 
to ensure the full commission votes on important cases, 
especially considering EEOC's recent high-profile litigation 
losses. Do you share these concerns? And if not, how can we be 
comfortable that the commission is not just a commission in 
name only?
    Ms. Berrien. Chairman Walberg, I believe you were quoting 
from our Strategic Enforcement Plan adopted in December of 
2012, and I want to reinforce that--and underscore that that 
was adopted by a bipartisan majority of the commission--members 
of the commission, so what is reflected there is not only my 
view but it is the view of a majority of members of the 
commission.
    With that background, I would say several things. First of 
all, as you have noted, the Strategic Enforcement Plan does 
refer to the 1995 delegation of authority to the general 
counsel of the agency and does continue that basic delegation, 
which was adopted together with the priority charge handling 
procedures and other systems intended to streamline the work of 
the agency and make sure that we were more effective in using 
the resources that we had.
    Certainly at this time, as the commission considered the 
input from more than 100 members of the public, institutions, 
representatives of employers, a wide range of agency 
stakeholders, we heard from them about a range of subjects 
including the issue of delegation and considered some of the 
recommendations that were made concerning the delegation of 
authority, and as a result, some changes were made but the 
basic delegation of authority remains.
    The general counsel of the agency has, as I was and as all 
of our colleagues of the commission were, was nominated by 
President Obama and confirmed by the Senate. He conducts 
litigation on behalf of the commission. And as the Strategic 
Enforcement Plan provides, he reports regularly on the conduct 
of that litigation.
    It should be noted that our litigation program in this 
fiscal year has an over 90 percent success rate in its 
litigation. I believe we have done 8 of 9 trials this year and 
we have succeeded.
    And so I do believe it is important to look at the 
instances where we have lost a case in light of the 
overwhelming success of our----
    Chairman Walberg. Some of those losses were significant 
financial losses and were brought to the attention that they 
were really beyond what we should be expecting. And I guess 
that, again, goes to my question about what hands-on direction 
the commission is actually giving if, indeed, the counsel is 
making so many decisions and we have a 70,000 case backlog, why 
we are going after some of these that end up very clearly with 
huge, huge losses to the taxpayer.
    Ms. Berrien. I don't in any way mean to understate the 
significance of any loss because, of course, ultimately in a 
case where we have pursued litigation and lose, there are 
people who are affected by that decision. So I don't take that 
lightly at all, as well as the resources of the agency at 
stake.
    Chairman Walberg. Let's jump to one of those. It was 
Washington State against--a case in Washington State against 
Evans Fruit Company. The first case resulted in unanimous jury 
verdict for the employer--unanimous. The second case was 
dismissed before it even got to trial.
    What internal steps does the EEOC plan to take to assess 
the reasons for these types of high-profile failures? And 
second, do you agree that an employer who successfully defends 
EEOC claims through a jury trial should have its attorney fees 
reimbursed by the EEOC?
    Ms. Berrien. Well, I believe the existing law is clear 
about when and how an employer can recover fees, and employers 
that believe they are entitled to fees have sought them. In 
some instances they have obtained awards of fees; in many 
instances they have not. So we respect and adhere to whatever 
the existing law is on that point.
    In the specific case of Evans Fruit, there is also one 
aspect of the case that we are currently seeking 
reconsideration by the judge, and that is a retaliation claim. 
And the jury verdicts that you have noted, we will ultimately 
examine whether there is any basis for taking an appeal, but 
that decision has not been made yet. It would be premature.
    In terms of the commission and the commission's input, 
there are several things that are in the Strategic Enforcement 
Plan that specifically go to your question of, does the 
commission have appropriate involvement and engagement in how 
the resources of the agency are used in litigation? As I have 
indicated, the general counsel does report regulatory to the 
commission. That is reaffirmed in the Strategic Enforcement 
Plan.
    In addition, one of the provisions of the Strategic 
Enforcement Plan is that at least one case from each of our 
districts will come to the commission for consideration, and 
some of the major cases of the commission, of course, already 
come to the commission, given that there are a number of 
criteria set out in our National Enforcement Plan previously 
and now Strategic Enforcement Plan that indicate that matters 
of significant financial consequence or that will demand 
significant resources of the agency or they could generate 
significant public attention or publicity among others should 
come to the agency, as well as those that involve novel 
applications of law or new and potentially new statutes, as 
well.
    Chairman Walberg. Well, thank you. My time has expired.
    I now recognize my ranking member, Mr. Courtney.
    Mr. Courtney. Thank you, Mr. Chairman. You know, listening 
to the exchange a moment ago I was reminded of my father, who 
was a trial lawyer for almost 50 years--lifelong Republican--
and used to say when I was starting out as a young lawyer that 
any lawyer who tells you they have won every case is a lawyer 
that has never tried a case. And, you know, it is kind of 
nature of the business is that, you know, no one--there is--you 
know, no one bats 1,000 in the system.
    Obviously, if there is, you know, losses it is something 
that we all need to be concerned about and learn from those 
results, and I am sure, you know, the commission takes that 
responsibility seriously.
    Again, in your opening comments you talked about the 
backlog reduction, which is, in my opinion, quite impressive--
20 percent since 2010. And again, the inflow of cases, though, 
which is happening at the same time that you are trying to 
address older cases--again, according to the statistics staff 
has given me it is about 100,000 cases a year. Is that correct?
    Ms. Berrien. That is correct.
    Mr. Courtney. And really, logistically, you know, it would 
be impossible for the commission to sort of scrutinize every 
single one of those cases. I mean, the fact is that you have to 
have systems in place where your professional staff is out 
there investigating and making decisions about this 
disposition. Isn't that pretty much how it runs every day?
    Ms. Berrien. Absolutely. As dedicated as the members of the 
commission are, there is no way that we can consider or review 
100,000 charges of discrimination.
    We are very fortunate to have a very dedicated professional 
staff that conducts investigations, that mediates charges of 
discrimination, that conciliates, and that litigates where 
necessary, as well as engaging in extensive outreach and public 
education.
    Mr. Courtney. And you mentioned 9 cases that went all the 
way to verdict just a moment ago, in terms of, you know, some 
of the success rate----
    Ms. Berrien. Yes, in this fiscal year.
    Mr. Courtney. The cases that go that far, again, are almost 
an infinitesimal fraction of the 100,000 cases that come in. I 
mean, you are out there trying to negotiate and resolve cases, 
otherwise you would drown.
    Ms. Berrien. Absolutely. And in fact, in our latest 
discussion of conciliations, for example, we saw that 40 
percent of the matters that reach the point of conciliation are 
successfully conciliated. So those matters never reach 
litigation, for example.
    Our mediation program, which is very well received and 
highly regarded, I think, across the spectrum of the bar 
resolves successfully thousands of cases or charges of 
discrimination every year and recovered a significant amount of 
relief for people who were victims of discrimination in the 
past year.
    So we certainly use mediation, conciliation, and in the 
course of our investigation, when and if we determine that 
there is no merit to a charge of discrimination, the last thing 
that anyone in this agency, particularly given our limited 
resources, wants to do is to waste any of those resources by 
continuing a meritless investigation.
    Mr. Courtney. Right. And you issue reports to sort of break 
down on a regular basis in terms of what the, you know, the 
results are?
    Ms. Berrien. Yes, we do. And we also provide an annual 
report, the Performance Accountability Report, to this Congress 
every year.
    Mr. Courtney. Thank you.
    Well, so in terms of trying to grapple with, again, the 
backlog, the inflow of new cases, you know, the hard work to go 
out and resolve in as many cases as you can, I mean, obviously 
that is--relies a lot on your staffing and the individuals. 
Sequester is now in full swing since March 1st. Congress can 
turn it off if we can come together with an agreement, just 
like prior Congresses did when Gramm-Rudman sequester went into 
effect in the 1980s and 1990s, but nonetheless, we are not 
there, apparently, at this point.
    Can you talk a little bit about how you are handling 
sequester, particularly in terms of your staffing, furlough 
days, layoffs?
    Ms. Berrien. Yes. Well first of all, to put context to 
this, in 1980 the staffing of this agency was nearly 1,000 
people more than it is today. In 1990 the staffing of the 
agency was approximately 500 people more than it is today.
    Nevertheless, since 1990 the agency has jurisdiction now to 
enforce two additional statutes--the Americans with 
Disabilities Act and the Genetic Information Nondiscrimination 
Act--in addition to the prior authorizations to enforce Title 
VII of the Civil Rights Act, the Equal Pay Act, and the Age 
Discrimination in Employment Act.
    So our jurisdiction has grown; the number of charges of 
discrimination have, for the past several years, been at an 
historic level of approximately 100,000. During that same 
period our funding has decreased significantly; our staffing 
has decreased significantly. Today we have approximately 2,300 
staff. Last year we instituted a hiring freeze in order to 
achieve the cost savings that were necessary to meet our budget 
last year.
    And in this year, despite efforts to cut other areas of our 
budget, we were unable to make the savings that were required 
by the sequestration so we are furloughing our employees. At 
this point we have called for 5 days of furlough; if necessary, 
an additional 3 days are provided in our notice to furlough. So 
it has had a real impact on our workforce and we fear it will 
have a real impact on our ability to make further progress 
towards fulfilling our mission.
    Mr. Courtney. I think my time is expired so I will yield 
back, but thank you for that important perspective.
    Chairman Walberg. Thank you.
    And I now recognize the chairman of the full committee, Mr. 
Kline.
    Mr. Kline. Thank you, Mr. Chairman.
    Thank you, Madam Chair, for being here. It is nice to see 
you.
    Ms. Berrien. Thank you.
    Mr. Kline. I very much appreciated that you made the trip 
up. We had an opportunity to chat just a couple weeks ago----
    Ms. Berrien. Yes.
    Mr. Kline [continuing]. So thank you very much for that.
    I am very sensitive to the 5-minute clock, and so I want to 
pursue a line of questioning sort of quickly here. Picking up, 
we discussed this a little bit in the office, and that is the 
issue of partnership agreements and the definition of 
``employee'' under federal nondiscrimination law that--over 
which you have jurisdiction.
    Many partnerships in the legal and accounting professions 
have voluntarily adopted mutually agreed upon policies for 
their retirement, for example. Now, there is no question that 
in one of these firms that there are employees that are clearly 
covered by nondiscrimination laws, including the Age 
Discrimination in Employment Act--the ADEA--but I am not 
entirely convinced that when Congress created the ADEA they had 
in mind--we had in mind applying this law to prevent law firm 
and accounting partners, who are highly educated--or so they 
tell me--and well compensated from voluntarily organizing as 
they see fit, including adopting retirement policies that they 
view to be in their best interest.
    So the questions that I have are these, and I will just 
give them all to you and then you can sort of respond to them 
in--in a group: Can you tell us whether or not the commission 
intends to make these mutually agreed upon retirement policies 
in the legal and accounting professions a focus of its 
enforcement efforts? Two, in light of the Supreme Court 
precedent governing the legal treatment of partnerships, 
wouldn't you think it best for the commission to come to 
Congress for any changes in the law that you might think should 
be required?
    And then, as we have already started discussing in this 
hearing this morning, given the commission's resource 
constraints, doesn't it make more sense to focus on truly 
vulnerable workers and leave challenges to partnership 
retirement policies to individuals? I mean, we have already 
talked about the backlog and how much work you have got to do, 
and yet, I understand that the commission is looking at some of 
these arrangements. It just strikes me that in a period of 
scarce resources that might not be the best use of your 
resources.
    Those are the questions.
    Ms. Berrien. Okay. Thank you.
    Well, first of all, I would like to note that there are six 
enforcement priorities identified in our Strategic Enforcement 
Plan, which was adopted in December, and it includes exactly 
the areas--some of the areas that you have mentioned, including 
protecting immigrant, migrant, and other vulnerable workers, 
eliminating barriers in recruitment and hiring, addressing 
emerging and developing issues, enforcing equal pay laws, 
preserving access to the legal system, and preventing 
harassment through systemic enforcement and targeted outreach.
    I believe the case you are referring to is the Clackamas 
Gastroenterology Associates case, and what that case provides--
--
    Mr. Kline. Let me interrupt. I don't want to tie it to a 
specific case. There are a number of instances here, so we can 
leave the specifics of a case out. It is in general----
    Ms. Berrien. I am sorry. I meant the Supreme Court decision 
you were referring to.
    Mr. Kline. Go ahead.
    Ms. Berrien. I am sorry. If I misunderstood you please let 
me know.
    But the Supreme Court's decision in Clackamas 
Gastroenterology requires that basically the way that a 
partnership is viewed for purposes of application of the 
antidiscrimination laws may vary from case to case. So in the 
course of an investigation concerning a possible claim of 
discrimination against a person who is a partner in a firm, we 
are bound, in part by that Supreme Court decision, to examine 
the circumstances and determine whether and how the 
antidiscrimination----
    Mr. Kline. Excuse me again. The time is about to expire.
    In some of these cases there has been no complaint and you 
are looking into that arrangement, and it just strikes me again 
that that was not the intent of Congress when talking about 
employees and protection and nondiscrimination. We weren't 
talking about lawyers making huge piles of money, and 
accountants and so forth, who are in a different position than 
their employees. And yet, I understand that the commission is 
proactively looking in some of these cases and I am just 
wondering why that would be.
    Ms. Berrien. Well, certainly, Congressman, the need for us 
to consider all of the relevant factors in making a decision 
about whether to litigate a case or even to pursue a directed 
investigation might include whether or not the law will be 
adequately enforced by private attorneys general, which is 
certainly part of what all of the statutes that we enforce 
envision or contemplate, that the private bar or private 
attorneys general may be well suited to pursue certain claims. 
And in our Strategic Enforcement Plan we have recognized that.
    That said, without reference to a specific set of facts or 
a specific investigation, I would have to say that even under 
existing law an examination of the facts that apply to the 
business arrangements or the partnership agreements is 
necessary under the Clackamas Gastroenterology Associates case. 
I can't say that there are no cases involving partners where 
there might be a instance of discrimination that would warrant 
or be appropriate for the exercise of the commission's 
jurisdiction.
    As I think you have recognized, without addressing any 
specific facts, I think the answer is broadly we would have to 
look in an investigation at whether or not, under Clackamas, 
that particular partnership would qualify as an employer for 
purposes of the statute.
    Mr. Kline. That is the reason why I am not a lawyer. I 
can't even pronounce the Supreme Court case name.
    But I am concerned. I don't think that got to the issue I 
was trying to get to. Perhaps we will be able to pursue it 
later.
    My time is more than expired, and I yield back.
    Chairman Walberg. I thank the gentleman.
    There are plenty of lawyers. We are glad for colonels.
    I now recognize for 5 minutes of questioning, Ms. Bonamici?
    Ms. Bonamici. Thank you very much, Mr. Chairman.
    And thank you for being here, Chairwoman Berrien.
    Guilty--I am one of the lawyers. And I wanted to align 
myself with the comments Mr. Courtney made about the legal 
system and the need to analyze cases, and sometimes you win, 
sometimes you lose. I think maybe Perry Mason didn't lose a 
case. But for the most part there are risks involved, and I 
know that the EEOC takes steps to analyze cases before you 
bring them forward.
    I wanted to talk a little bit about one of the priorities 
that you have identified in your Strategic Enforcement Plan, 
which is eliminating barriers in recruitment and hiring, and I 
know that one of the things that the EEOC has discussed is 
discrimination against the unemployed. There are a lot of 
people out there still who have lost jobs through no fault of 
their own, and getting them back to work is something that we 
all talk about here in Congress.
    But several states, including my state of Oregon, have 
passed legislation limiting the use of credit reports in 
employment. It is especially timely because so many people who 
did lose jobs, through no fault of their own, faced some 
financial difficulties, and when employees are not hiring 
prospective employees because either because they are 
unemployed or because something on their credit score, it only 
exacerbates the difficulties faced by people who are trying to 
get back to work.
    And in the states--I believe there are about eight states 
now who have passed legislation limiting the use of credit in 
employment--of course, there are exceptions made for industries 
where that is relevant--and I wonder, Chairwoman, if you have 
looked into whether that practice tends to disproportionately 
impact minorities and women and what steps, if any, is the EEOC 
taking to prevent employment discrimination based on the 
unemployed status or on credit history?
    Ms. Berrien. Thank you.
    Actually, we have looked at both of those practices as a 
commission in public meetings of the commission. In the first 
year or so of my tenure at the commission, we conducted 
approximately a half a dozen commission meetings on barriers to 
hiring and recruitment, and we were particularly sensitive to 
several things: one, the fact that a large number of people 
would be seeking or--seeking to return or enter to the 
workforce in the first place, and we tried to look at practices 
that might affect that group. So we looked, for example, at the 
impact of the economy on older workers and some practices that 
affect older workers.
    We also conducted a public meeting on employers' 
consideration of credit information and history as a potential 
barrier to employment and recruitment. And in fact, I believe 
that some of the local laws that have been introduced or passed 
in the months since then have actually drawn on the record of 
the meeting that we conducted and the testimony that witnesses 
presented.
    We also conducted a meeting on unemployment or unemployed 
status as a potential barrier to employment for job seekers. 
And in every instance we were interested in determining whether 
and to what extent there was a disparate impact on any 
particular group.
    In some instances I think we broadened our look so that we 
were not only addressing those who might be the obvious 
potential groups impacted, but also those who may not. For 
example, when we conducted our meeting on credit we did have 
someone testify on the impact of this practice for women. When 
we conducted a meeting on the unemployed status we looked at 
the practice's impact not only on African Americans but also on 
other groups that could be impacted, including older workers.
    So I think through our meetings we have brought information 
into the public sphere that is helpful in those instances where 
states and localities have tried to pursue, as well as looking 
at our own charges of discrimination and, where appropriate, 
investigating if we believe there is a disparate impact or 
disparate treatment.
    Ms. Bonamici. Thank you. And in just the remaining time, I 
know the EEOC enforces the Equal Pay Act, which has been the 
law since the 1960s. I support the Paycheck Fairness Act. I 
hope we can pass that.
    But why is it since equal pay for equal work has been the 
law since the 1960s is it the case that women only make about 
77 cents to the dollar that men make?
    Ms. Berrien. I don't know if I am the best person to answer 
the why, but I can say that that is a real priority for us to 
close that gap once and for all, and I think we have made some 
significant progress in doing that. We have litigated a number 
of cases successfully challenging pay disparities--not only pay 
disparities affecting women, but in some cases pay disparities 
affecting other groups. And we will continue, along with our 
enforcement partners in the federal government who are part of 
the Equal Pay Enforcement Task Force, to work to close that 
gap.
    Ms. Bonamici. Thank you. My time is expired.
    I yield back. Thank you, Mr. Chairman.
    Chairman Walberg. I thank the gentlelady.
    And I recognize a doctor on the committee, Dr. Bucshon.
    Mr. Bucshon. Good morning.
    A couple of things. First of all, I strongly believe all 
workers deserve strong protections against employment 
discrimination, and I thank you for your work in that area.
    A couple things that I am intrigued by, though, is, does it 
require a criminal background check or drug testing to be 
employed by the EEOC?
    Ms. Berrien. We are subject to the same standards that are 
set out by the Office of Personnel Management----
    Mr. Bucshon. So it is yes or no.
    Ms. Berrien. We have at times--I am not sure that we have 
required drug tests, but criminal background checks, depending 
on the nature of the position, may be required.
    Mr. Bucshon. Okay. And can I ask, did you have to have a 
criminal background check on yourself or a random drug test 
before you were appointed to get appointed to your job?
    Ms. Berrien. I certainly did not have a random drug test, 
although--and as far as a criminal background check, I was 
subject to the FBI clearance and check that I believe all 
Presidential appointees are.
    Mr. Bucshon. Yes. And do you think--do--in that vein, do 
you think that it was important for you to have a criminal 
background check before you were appointed to you current 
position? Why would that be applicable to you?
    Ms. Berrien. Well, I would say this: I want to make clear 
that the guidance that the EEOC adopted does not prohibit any 
employer--federal government, state or local government, or 
private employer--from conducting a criminal background check. 
What is relevant under existing law--and this has been 
determined by federal courts--is how those results are used and 
whether or not the check--whether or not the results are 
related to the job in question. And in that case, I believe I 
was subject to the same practice that is provided for in the 
guidance that we have adopted.
    Mr. Bucshon. Thank you. Because we hear all the time, 
``Well, Congress passes laws that don't apply to them,'' but it 
seems to me that, you know, not being overly critical, that if 
you required a criminal background check to get your 
appointment or Presidential appointees require criminal 
background checks, I don't really see the applicability in 
those other than political implications, I will be frankly 
honest with you, and I think that is where I have some 
difficulty with the guidance where an employer, based on what 
they determine is appropriate, can conduct a criminal 
background check regardless of what type of employment--and I 
see it as an overreach. That is just one of my things.
    Now, do you know--do you consider drug use or alcohol abuse 
to be a disability?
    Ms. Berrien. There have been cases that have determined--
federal cases that have determined that under certain 
circumstances not drug abuse or alcohol use but a history of 
alcoholism, for example, has been determined in some cases to 
be a disability.
    Mr. Bucshon. Yes. And I can't totally disagree with that. I 
have personal family reasons to agree with you. And as a 
medical doctor I realize that these can be classified as 
diseases and can be considered a disability in some instances.
    And the reason I ask that is the U.S. Steel case, which you 
lost so far--do you know how much U.S. Steel pays in workman's 
comp payments per year by chance, or what their liability 
insurance is for their employees? Just a----
    Ms. Berrien. I can't give you a figure, but I am sure it is 
substantial.
    Mr. Bucshon. So why would the EEOC continue to litigate a 
case when it seems to me U.S. Steel is protecting not only the 
employee and surrounding employees around them--litigate a case 
that clearly, if that employee, for example, made a mistake and 
killed another employee or that they would be open to 
litigation from the employee's family, they would be open to 
litigation from all kinds of sources, plus--or they injured 
another person and the company ended up paying workman's comp 
payments for years or the federal government had to pay 
disability payments forever.
    Why would the EEOC pursue a case when it is pretty clear 
that, you know, if you are working in a dangerous environment, 
in my personal view, it is not inappropriate for people to know 
the status of the employee not only for their own protection 
but for the protection of their surrounding employees and the 
company as it relates to liability, and that would be my 
question. Why would you disagree with that?
    Ms. Berrien. Well, Congressman, I am not sure that I would 
disagree with your premise. We certainly recognize that health 
and safety rules and regulations are a part of the backdrop for 
some of the laws that we enforce. And similarly, with our 
arresting and conviction guidance, we certainly and expressly 
recognize that concerns about employee health and safety or 
customer safety, among other factors, could be relevant to an 
employment decision. So I don't think we disagree about that.
    Mr. Bucshon. Okay. Do you think that if a person comes to 
be employed--an unemployed person, and a company has--I see my 
time is expired.
    I will yield back. Thank you.
    Chairman Walberg. I thank the gentleman.
    I would ask unanimous consent that Representative Susan 
Brooks of Indiana, and a member of our full committee, be 
allowed to participate in today's hearing.
    Without objection, Representative Brooks, you are 
recognized for 5 minutes. Welcome.
    Mrs. Brooks. Thank you, Chairman.
    Hello, Chair Berrien. Nice to----
    Ms. Berrien. Good morning.
    Mrs. Brooks [continuing]. Be with you today.
    I am going to follow up a little bit on a line of 
questioning from Congressman Bucshon, because I am a former 
United States attorney, but similarly--or I have also been 
involved in the criminal justice system as a criminal defense 
attorney my entire career, so I have been in the criminal 
justice system until most--until the last half a dozen years, 
and criminal background check issues have always been an issue 
not only for those, you know, coming out of the criminal 
justice system but particularly for employers who are looking 
to hire and making those important hiring decisions.
    And I know that the EEOC did finalize its criminal 
background check guidance with--but it was, from my 
understanding, without a regard for the directive proposed by 
the Senate Appropriates Committee that the guidance was 
supposed to have been circulated for public comment at least 6 
months before adoption. And it is my understanding that the 
report language accompanying the enacted fiscal year 2013 C.R. 
directed the EEOC to report to the Appropriations Committee the 
steps taken by the EEOC to alleviate that confusion caused by 
the criminal background check guidance.
    Can you please provide for this committee an update on how 
the EEOC's--what is the progress in complying with this 
directive? And if you could please expand and share with me--
and I am sorry I didn't get here on time--more information 
about the criminal background guidance and what the response 
was to the Senate Appropriations directive.
    Ms. Berrien. Of course. So we will obviously comply with 
the Senate Appropriations Committee directive; the date for 
doing so has not arrived yet.
    Mrs. Brooks. And I am sorry, what is that date?
    Ms. Berrien. I believe the committee--that report language 
came out approximately a month-and-a-half ago; I believe we 
have another month, more-or-less, to provide that information. 
We certainly will do that in a timely manner and we certainly 
are going to be prepared to do that.
    But I can certainly share with you broadly several things. 
First of all, the guidance that we adopted in April of 2012 was 
an update of guidance that had actually been in effect since 
the 1980s. It was initially adopted when Chair Thomas was at 
the agency; it was reaffirmed when Chair Kemp was at the 
agency.
    We believe, though, that for several reasons, because a 
court had indicated that additional support for the guidance 
would be useful, because of the burgeoning number of instances 
where background checks are conducted not only by screening or 
other firms but now increasingly it is possible for one to use 
online or other services to conduct background checks, because 
of the larger number of people--and I do want to make a 
distinction here.
    Our guidance concerns employer consideration of arrests and 
convictions, and from the passage of the first guidance in the 
1980s the agency has always distinguished between arrests and 
convictions, given that arrest and the information underlying 
an arrest is not subject to the same standards nor is it the 
same quantum of proof as a conviction, so I do want----
    Mrs. Brooks. Excuse me, Madam Chair, but is--in the 
guidance are arrests subject to an employer being entitled to 
see arrests?
    Ms. Berrien. An employer can request arrest or conviction 
records, but the guidance, as it has since the 1980s, indicates 
that a record of arrest is not entitled to the same weight or 
should not lead to the same consequences as a conviction 
record.
    Mrs. Brooks. Because there is a very different standard for 
a conviction versus an arrest.
    Ms. Berrien. Exactly.
    Mrs. Brooks. But an employer is still entitled to receive a 
list or request from a employee what you have been arrested 
for----
    Ms. Berrien. An employer can correct--can request that.
    Mrs. Brooks [continuing]. And then what they have been 
convicted of. And so what is the new--what is the change that 
was made and what was the commission's--what happened in the 6-
month public comment period?
    Ms. Berrien. Well----
    Mrs. Brooks. Was there a 6-month public comment period?
    Ms. Berrien. Actually, there were several opportunities for 
the public to weigh in on this subject. The commission 
conducted public meetings before I arrived, actually, under the 
leadership of Chair Earp, on arrest and conviction as a barrier 
to employment----
    Mrs. Brooks. And I know--I certainly am aware that there 
is, but was there a 6-month public comment period?
    Ms. Berrien. It was not treated like notice and comment 
rulemaking, absolutely--so it was not published for comment in 
the Federal Register, nor do we believe it needed to be.
    Mrs. Brooks. And so we will, then, in a month or a month-
and-a-half, when you said we will be able to receive what the 
EEOC's response is to that directive at that time?
    Ms. Berrien. We will absolutely make that submission to the 
committee that is required.
    Mrs. Brooks. Thank you. Can you let me know--so many state 
and local laws require employers to conduct criminal background 
checks, so state and local laws may be in conflict with what 
the directive is. Is that a possibility?
    Ms. Berrien. Well, we recognized that in the guidance and 
we did discuss that. But in fact, it is not the guidance that 
creates that conflict; it is actually the law itself, which 
indicates that as federal law is, Title VII recognizes the 
supremacy of federal law.
    However, the commission is aware that there may be 
instances where in order to comply with federal law a 
background check may be required and that that may warrant an 
exclusion or a decision in a particular case to exclude an 
employee. I think there certainly is the opportunity in the 
course of an investigation to present that if that ever 
occurred. But we have addressed that in the guidance.
    Mrs. Brooks. And I have one last question, if I might, Mr. 
Chair.
    Chairman Walberg. Without objection.
    Mrs. Brooks. Thank you.
    So can you please provide for us how EEOC can assure 
employers that are either faced with the EEOC guidance or with 
the state and local law that they are not going to be subject 
to litigation? I mean, if the state and local law is in--is, 
you know, in conflict with your guidance, which law is, in your 
view and in the commission's view, should the employers be 
following?
    Ms. Berrien. Well, there would never be a case where our 
guidance prohibits an employer from conducting a background 
investigation, so if--and that is often the case with state and 
local laws. If the state or local law says, ``In order to work 
in this setting you must be subject to a background 
investigation,'' there is nothing in this guidance that would 
prohibit that.
    The issue that the guidance addresses in great detail is 
what the standards are when an employer, if based on 
information they obtain in the guidance, makes a particular 
employment decision. And if the defense or the justification is 
that a state law requires exclusion of all people with a 
particular conviction, I think that would obviously be relevant 
to a determination that the commission would make about what 
steps would need to be taken next.
    Mrs. Brooks. But the commission is allowing employers to 
determine certain categories of crimes and convictions that 
would preclude employment. Is that correct?
    Ms. Berrien. Absolutely. And that is provided for in the 
guidance.
    Mrs. Brooks. Okay.
    Ms. Berrien. Then that, though, would assure that a person 
could not bring a suit or would not bring a charge of 
discrimination, so we can't provide for that.
    Mrs. Brooks. Certainly.
    Ms. Berrien. We would have to make the determination based 
on all the facts at the time.
    Mrs. Brooks. Thank you very much.
    Ms. Berrien. Thank you.
    Mrs. Brooks. I yield back. Thank you for the additional 
time.
    Chairman Walberg. I thank the gentlelady, and appreciate 
the questions and the responses.
    Definitely one committee hearing is not sufficient to get 
to the issues to understand, and I think that assures us that 
there will be opportunities for the future.
    I now recognize the ranking member for any closing comments 
he would like to make.
    Mr. Courtney. Thank you, Chairman Walberg. And again, I 
want to thank you for holding this hearing--again, the first 
time EEOC has been invited over here in this Congress or the 
prior Congress, and obviously the lively exchange shows that, 
again, there is a lot of interest on both sides of the 
microphone here in terms of the great work that your commission 
conducts to protect, again, the civil rights of all Americans.
    And again, I want to compliment you on how open and 
responsive and precise your answers were to all the members' 
questions. And again, hopefully this is the beginning of a 
dialogue between our subcommittee and your commission to, 
again, find ways to get better information out about the work 
that your commission does, and also look at ways that we can 
improve civil rights laws to protect, again, groups and 
individuals that are still subject to discrimination.
    Again, we have bipartisan legislation, which has been 
introduced by Congresswoman Ros-Lehtinen and--and 
Representative Polis, the Employment Nondiscrimination Act, 
which again, I am hoping our committee will take up sometime 
during this Congress. And also the Protecting Older Workers 
Against Discrimination Act, which again, has bipartisan 
introduction in the Senate with Senator Grassley and Senator 
Harkin to, again, address a recent Supreme Court decision which 
I think unfairly hinders older Americans from, again, having 
their rights protected in the workplace.
    And with that in mind, I wanted to introduce two letters 
for the record, one from AARP and the other from the Leadership 
Conference on Civil Rights and Human Rights, which again, 
underscores the work that your commission is doing to protect 
older Americans and, again, the need for Congress to, again, 
help support the commissions and their efforts. So hopefully 
without objection?
    [The information follows:]

                                                      AARP,
                                                      May 21, 2013.
Hon. Tim Walberg, Chair; Hon. Joe Courtney, Ranking Member,
Subcommittee on Workforce Protections, House Education & Workforce 
        Committee, 2101 Rayburn House Office Building, Washington, DC 
        20515.
    Dear Chairman Walberg and Rep. Courtney: AARP is a nonpartisan, 
nonprofit membership organization of people age 50 or older that fights 
for the issues that matter most to older Americans, including equal 
employment opportunity. On behalf of our more than 37 million members 
and all Americans age 50 and older, AARP appreciates the sustained 
attention the EEOC has been giving to issues that affect older workers 
and workers with disabilities, and we are pleased that you are holding 
a hearing to highlight the regulatory and enforcement actions of the 
Equal Employment Opportunity Commission (EEOC).
    The aging of Boomers, combined with a 25-year trend of Americans 
working longer and retiring later, means that our nation's workforce is 
getting older. By 2020, all Boomers will be age 55 and older, and the 
55+ age group will constitute one-fourth of the workforce. As more 
older workers decide to delay retirement because they want to continue 
working or, increasingly, because they cannot afford to retire, having 
the option to work beyond traditional retirement age is of increasing 
importance to older workers, including the one-third of AARP members 
who are in the workforce.
    Despite the need for older workers to remain in the workforce 
longer, significant barriers to their hiring and retention exist. Among 
them is the persistence of age discrimination, both blatant and subtle. 
In a nationwide survey by AARP in 2012, about two-thirds (64%) said 
they believe that people over age 50 face age discrimination in the 
workplace. Moreover, about one-third (34%) reported that either they 
personally faced age discrimination in the last four years, or know 
someone who has. Once older workers lose their jobs, they face much 
longer periods of unemployment than younger workers--lasting on average 
more than one year. Employment discrimination on grounds of disability 
is also particularly challenging for older workers, as a 
disproportionate number of workers discriminated against on the basis 
of disability are older.
    The EEOC must continue to play a vital role in confronting 
practices and policies that impair full and equal employment 
opportunity for older workers. These include practices such as 
mandatory retirement, age limitations on employee benefits by state and 
local governments, discrimination against the long-term unemployed, and 
inquiries for medical information about employees.
    In the regulatory arena, AARP is particularly grateful for and 
strongly supportive of the EEOC's work to clarify the law on employment 
practices that have a disparate impact on the basis of age. The Supreme 
Court previously affirmed the validity of such actions under the Age 
Discrimination in Employment Act, and specified the application of the 
``reasonable factor other than age'' defense, but the high court 
provided no guidance on the parameters of these concepts. The EEOC has 
applied its expertise in interpreting the law and issuing regulations 
to guide employers and employees. The EEOC's ``reasonable factor other 
than age'' regulations were squarely in line with case law, and it is 
important that this type of systemic policy guidance be available to 
employers as they review the impact that their decisions can have on 
older workers.
    In the enforcement arena, AARP agrees with the Commission's 
targeting of barriers in recruitment and hiring, including hiring 
discrimination based on age, as a national priority in its Strategic 
Enforcement Plan. Hiring discrimination, which has been exacerbated 
during this Great Recession, is a huge problem for older workers, but 
is very difficult for job applicants to detect and take action against. 
AARP has urged the Commission to use its greater ability to detect and 
bring systemic cases in targeted industries in which age stereotyping 
is prevalent. The Commission's inclusion of enforcement strategies 
aimed at discriminatory screening tools such as date-of-birth screens 
on job applications is also key.
    Over the last four years, the Commission has given broad attention 
to a wide variety of issues of great concern to older workers. These 
include public hearings on:
     Age Discrimination--In the depths of the recession, the 
EEOC held public hearings on ``Age Discrimination in the 21st Century--
Barriers to the Employment of Older Workers,'' and on the ``Impact of 
the Economy on Older Workers.''
     Hiring Discrimination--Once jobless, older workers are far 
more likely than younger workers to experience long-term unemployment. 
Organizations and media reports uncovered a disturbing trend in which 
employers would refuse to consider the applications of jobseekers who 
were currently unemployed. The EEOC has held hearings on: ``Disparate 
Treatment in 21st Century Hiring Decisions,'' and ``Out of Work? Out of 
Luck: Treatment of Unemployed Job Seekers.''
     Caregiver Discrimination--People are living longer, and 
the vast majority of older adults with chronic, disabling conditions 
are being cared for by family members. Midlife and older workers 
juggling family eldercare responsibilities will be increasingly common, 
prompting the EEOC to issue best practices and hold a hearing, 
``Unlawful Discrimination Against Pregnant Workers and Workers with 
Caregiving Responsibilities,'' on the equal employment issues attendant 
to the treatment of family caregivers.
     Credit Report Screens--Since older workers experience 
longer spells of unemployment (increased risk of struggling to pay 
bills and debts), and are more likely to experience medical problems 
and medical debt, the indiscriminate use of credit reports in the 
screening of job applicants raises many issues for older workers. AARP 
was pleased that the EEOC held a hearing on ``Employer Use of Credit 
History as a Screening Tool.''
     Employer Wellness Programs--Employer-sponsored wellness 
programs were expanded under the Affordable Care Act. The EEOC recently 
held a hearing on ``Wellness Programs Under Federal Equal Employment 
Opportunity Laws,''
    The EEOC has appropriately and effectively used these hearings to 
gather diverse views, and to inform updates of enforcement guidance and 
help focus its enforcement actions.
    AARP strongly supports the actions of the Commission to address the 
needs of older workers for fairness and equal opportunity, and looks 
forward to working with both the EEOC and this Committee on these 
important issues. If you have any questions, please feel free to 
contact Debbie Chalfie of the Government Affairs, Financial Security 
and Consumer Affairs staff at (202) 434-3723.
            Sincerely,
                    Joyce A. Rogers, Senior Vice President,
                                                Government Affairs.
                                 ______
                                 
                                                      May 21, 2013.
Hon. Tim Walberg, Chair; Hon. Joe Courtney, Ranking Member,
Subcommittee on Workforce Protections, House Education & Workforce 
        Committee, 2101 Rayburn House Office Building, Washington, DC 
        20515.
    Dear Members of the Education and the Workforce Committee: On 
behalf of the Employment Task Force of The Leadership Conference on 
Civil and Human Rights (``The Leadership Conference''), a coalition 
charged by its diverse membership of more than 200 national 
organizations to promote and protect the rights of all persons in the 
United States, we write to applaud Chair Jacqueline Berrien for the 
successful and critical work of the Equal Employment Opportunity 
Commission (``the Commission'') under her guidance.
    The Commission serves a vital function in ensuring workplaces free 
from unlawful discrimination based on race, color, religion, sex, 
national origin, age, and disability. The Commission's critical mission 
helps to promote economic security for all workers and their families. 
During Chair Berrien's term, the Commission has strengthened efforts to 
prevent discrimination through outreach, education, and technical 
assistance and has pursued fair and vigorous enforcement of the law 
when evidence of discrimination is uncovered. We write to highlight 
some of the Commission's recent accomplishments under Chair Berrien's 
leadership.
    Since Chair Berrien assumed her role in April 2010, the Commission 
has received approximately 300,000 charges of employment 
discrimination. In the last three years, the Commission has recovered 
over $1.2 billion in lost wages and other relief for workers who faced 
unlawful discrimination. Under Chair Berrien's leadership, the 
Commission has represented some of the most vulnerable workers in this 
country.
    We applaud the Commission's enforcement efforts to investigate and 
challenge not only individual cases of discrimination, but also 
systemic violations of the law, pursuant to its clear legal authority. 
Systemic enforcement is crucial to the Commission's ability to 
effectively combat pattern-or-practice discrimination. Victims of 
discrimination may not be aware that they have been subject to 
discrimination and they may be less inclined to bring an individual 
complaint due to a lack of resources or fear of retaliation. Moreover, 
the Commission may be better positioned to pursue systemic cases that 
the private bar is less likely to take on, for example, in cases where 
the monetary relief might be limited, the focus is on injunctive 
relief, or the victims are in underserved communities.
    An important milestone in the Commission's recent work was the 
issuance in April, 2012, of an updated ``Enforcement Guidance on the 
Consideration of Arrest and Conviction Records in Employment Decisions 
Under Title VII of the Civil Rights Act of 1964.'' This Guidance serves 
to inform employers of the agency's interpretation of the relevant law 
and provides information about appropriate methods for employers to use 
criminal history records in compliance with the requirements of the 
statute. The Enforcement Guidance is a thoughtful, flexible, and 
workable roadmap for employers to follow. The Guidance explains to 
employers how to conduct and use any appropriate background checks they 
reasonably require, without violating the rights that job applicants 
have under Title VII. As reflected in testimony presented at a briefing 
on December 7, 2012, before the United States Commission on Civil 
Rights, for example, from the Society for Human Resource Management, 
the Enforcement Guidance has been generally well received by employers. 
We are attaching a copy of extended comments that some members of the 
Task Force submitted to the Commission on Civil Rights, based on the 
record of the Briefing.
    Beyond legal and administrative enforcement, the Commission serves 
as a crucial resource to employers by providing training, technical 
assistance, and guidance concerning compliance with relevant civil 
rights laws. The Commission conducts thousands of outreach events each 
year for the public, with a special emphasis on underserved 
communities, small businesses and workers who would otherwise have 
limited access to information about their rights under equal employment 
laws. In the last three fiscal years, over 1.1 million people 
participated in one of the Commission's no-cost educational, training 
and outreach events.
    Thank you for your attention to the Commission's important work to 
ensure equal employment opportunity in the nation's workplaces and to 
promote economic security for all workers and their families. If you 
have questions or if we can be of assistance, please contact Lisa 
Bornstein, Senior Counsel at the Leadership Conference on Civil and 
Human Rights at [email protected] or (202) 466-3311, or Sarah 
Crawford, Co-Chair of the Employment Task Force and Director of 
Workplace Fairness at the National Partnership for Women & Families at 
[email protected] or (202) 986-2600.
            Sincerely,
 Leadership Conference on Civil and Human Rights, National 
                          Partnership for Women & Families.
Cc:
    Rep. John Kline
    Rep. Tom Price
    Rep. Duncan Hunter
    Rep. Scott DesJarlais
    Rep. Todd Rokita
    Rep. Larry Bucshon
    Rep. Richard Hudson
    Rep. Robert Andrews
    Rep. Tim Bishop
    Rep. Marcia Fudge
    Rep. Gregorio Sablan
    Rep. Suzanne Bonamici
                                 ______
                                 
    Chairman Walberg. Without objection, hearing none, they 
will be entered into the record.
    Mr. Courtney. Great.
    And so lastly, I just want to say that, you know, you got 
some homework from some of the members in terms of the report 
that the Senate required, and I am sure you are going to share 
that with us.
    I would also ask that you keep us up-to-date regarding the 
damage that sequestration is doing to your hard work to 
eliminate the backlog of cases, which again, I think--to me, 
that is the fundamental challenge which your commission is 
confronted with and doing great work to reduce, and--but we 
don't want to go backwards here. And with a smaller staff, as 
you pointed out, than you had 10 years ago and 20 years ago, 
you are still making that progress, but to have furlough days 
imposed clearly is going to hinder that effort.
    And it is important for us to know because we can still 
turn off sequester. I mean, that is still in our power as 
Congress--something which, again, historically, looking at 
Gramm-Rudman sequestration over the 1980s and 1990s was done 
repeatedly by our predecessors, and we are failing the American 
people by not getting our arms around that and turning it off.
    So again, hopefully you will share that with our 
subcommittee in terms of your efforts to comply with the Budget 
Control Act.
    And again, I want to thank you for your outstanding 
testimony today.
    And with that I would yield back.
    Chairman Walberg. I thank the gentleman, and I would concur 
with a good number of those statements.
    And appreciate the opportunity to hear direct responses on 
questions. I think there is still, of course, some uncertainty 
about the why and wherefore of certain cases, and, you know, I 
would make it very clear, I don't expect you to win every case. 
I am not a lawyer; I am a pastor and I didn't expect to save 
every person in my congregation either, or even get their 
tithe.
    But I do expect that we have agencies that serve the good 
of the people and do the will of Congress, that continue to 
look to the priorities that need to be set in sequestration 
time. I agree, there, that that adds a challenge, I think an 
unnecessary challenge, and we wish that there could be a 
decision that would enable us to set the priorities of 
government and do the appropriate things without being caught 
in this design.
    But it is what it is, and so in recognition of that, any 
efforts that the 5-member commission can make to make sure that 
employees of the EEOC as well as the general counsel keep any--
keep to the minimum any perceived--and I say perceived because 
perception is a big sense when we deal with a department this 
important and this impacting in our society--that we make sure 
that any so-called fishing or agenda-producing efforts are 
controlled for the best benefit of those claims that have been 
made, those concerns that have been expressed by employees that 
we have in the backlog and will be having further are addressed 
first.
    I think it is our concern that there has been a perceived, 
increasingly-aggressive approach by the EEOC to enforcing 
federal nondiscrimination laws with questionable benefits for 
employees and little consideration of the larger consequences 
of job creation, which is important that we keep that balance, 
that future guidance in a greater way be given the opportunity 
for public comment and review, and so that reality prevails in 
how we deal with best practices and actual situations, whether 
it be with a case like U.S. Steel or Evans Fruits, or a number 
of cases in relation to not simply employment contractual 
relationships, but employer contractual relationships of 
partners that have been made with all good efforts to make sure 
that there are continuing opportunities for new partners to 
come in and that there is opportunity for a change in the 
diversity makeup that would not take place if we hold hard and 
fast to saying that these unique settings that are not employee 
settings but are employer--actual employer settings, partner 
settings, are dealt with their unique situation kept in mind.
    And so with no efforts to diminish the good work that is 
being done by the EEOC and the commission and your leadership 
on that commission, Ms. Berrien, I would say that it is good 
for us to be reminded that that fine line, in an age of great 
necessity at producing more jobs, more opportunities, making 
sure that best practices are carried out at the workplace, that 
sometimes the actual workplace knows the best practice better 
than the bureaucracy or Congress, are considered, and the 
results being that we have a safer, larger workforce with as 
little discrimination as we possibly can have
    It will never be perfect; I understand that, but making 
sure that we give our greatest efforts to finding those 
specific cases first and eradicating that from our workforce 
and our employer base.
    Having said that, with no further responsibilities or 
information to come before this committee, I will call it 
adjourned.
    [Additional submission of Chairman Walberg follows:]

                                      Washington, DC, June 6, 2013.
Hon. Tim Walberg, Chairman,
Subcommittee on Workforce Protections, Committee on Education and the 
        Workforce, Washington, DC 20515.
    Dear Chairman Walberg: The U.S. Chamber of Commerce, the world's 
largest business federation representing more than three million 
businesses and organizations of every size, sector, and region, 
appreciates this opportunity to provide a statement for the record as 
part of the Subcommittee's May 22, 2013 hearing entitled ``Examining 
the Regulatory and Enforcement Actions of the Equal Employment 
Opportunity Commission.'' The purpose of this letter is to provide you 
with a summary of our members concerns regarding the Equal Employment 
Opportunity Commission's (``EEOC'' or ``Commission'') enforcement and 
sub-regulatory and agendas.
    At the outset, we wish to thank you for holding a hearing on this 
important subject. The laws and regulations that the EEOC implements 
and enforces are very important, but they are also very detailed and 
technical, requiring an investment of significant time and resources to 
fully understand. We wish to express our appreciation for the 
Subcommittee making EEOC oversight a priority. We look forward to 
working with you and other members of the Subcommittee on these issues 
in the coming months.
    In this letter, we present the concerns of our Members with EEOC 
enforcement and sub-regulatory initiatives. We wish to emphasize that 
it is not our intent in this letter to debate the merits of any law or 
regulation that the EEOC is charged with implementing and enforcing. 
Instead, these comments focus on the manner in which the EEOC is 
carrying out its responsibilities under these laws and regulations.
EEOC's Abusive Investigatory Tactics
    It should be emphasized that enforcement tactics can be difficult 
to summarize in a letter such as this. Many concerns seem outrageous on 
their face. Others might not seem egregious standing alone, but 
repeated time and again or combined with other abuses, become more 
serious. With this in mind, set forth below are several examples of 
recent EEOC enforcement abuses that we have heard from our Members:
     After the investigation, but before issuing a 
determination, EEOC investigators send the employer a letter, urging a 
mid-five figure settlement and outlining a variety of bad facts which 
show discrimination. Within days of rejecting these offers, the EEOC 
then dismisses the allegations entirely, making the whole basis of the 
original letter intellectually dishonest and making a supposedly 
neutral investigation appear to be nothing more than a ``shakedown.''
     An investigator refused to allow the employer to mediate 
the charge, claiming that the company does not negotiate in good 
faith.\1\ This position was blatantly inaccurate given that company had 
successfully mediated a matter with the same investigator only a few 
months earlier. The employer's request for the case to be reassigned to 
another investigator was denied.
     Several examples of instances where employees have claimed 
that they had been terminated unlawfully, when in fact they were either 
still employed or had resigned voluntarily. The employers were then 
obligated to respond to such allegations with a position statement in 
order to simply show that a termination had not occurred. This response 
requires the employer or its representatives to, among other things, 
review the complaint, obtain documents, interview managers, and draft 
the legal response. Some Members estimate that preparing such a 
response can easily cost $3000 to $4000.
     Pursuing investigations despite clear evidence that any 
alleged adverse action was not discriminatory--such as an employee 
caught on videotape leaving pornography around the workplace.
     Investigators refusing to close cases that are several 
years old by continually making additional requests for information.
     Investigators refusing to close cases, even where the 
employer, employee and union have all agreed to a private settlement of 
the matter at hand.
     Failing to engage in good faith conciliation in order to 
pursue a case which the EEOC eventually lost on summary judgment, 
costing the employer several hundred thousand dollars in attorneys' 
fees and costs.
     Continually attempting to communicate directly with 
employers rather than through employers' counsel.
     Making overly-burdensome requests for information and 
issuing subpoenas which are sweeping in scope and not sufficiently 
related to the underlying investigation.
     Demanding that the employer turn over workplace policies 
that are completely irrelevant to the underlying charge.
     Various issues related to EEOC investigators' ``fact-
finding conferences,'' such as:
     Making these conferences mandatory; and holding them prior 
to any investigation and prior to permitting the employer to submit a 
statement of position or a statement of facts.
     Conducting these conferences in a confrontational and one-
sided manner in which EEOC investigators aggressively question 
employers, but refuse to permit employers' counsel to speak.
     Making unprofessional and prejudicial statements during 
conferences, such as exclaiming that, ``it is well known that 
[employer] has a pattern and practice of discriminating and retaliating 
against its employees.''
EEOC's Abusive Litigation Strategy
    The anecdotes catalogued above were personally described to Chamber 
staff by concerned Members. However, there are also myriad public 
examples of the EEOC's irresponsible enforcement efforts--particularly 
once they have entered the litigation stage.\2\ These instances have 
most notably been demonstrated in a litany of federal court opinions in 
which federal judges have awarded attorneys' fees and costs to 
employers who were subjected to the EEOC's overzealous enforcement 
tactics.
    In one of the most well known examples of the EEOC's reckless 
enforcement agenda, the U.S. Court of Appeals for the 8th Circuit 
largely affirmed a district court's dismissal of an EEOC class action 
lawsuit which alleged sexual discrimination but failed to identify the 
alleged victims of discrimination.\3\ The 8th Circuit agreed with the 
district court that the EEOC stonewalled the company in explaining who 
it sought to represent and made no meaningful attempt at conciliation. 
As a result of the EEOC's outrageous litigation strategy, the District 
Court ordered the agency to pay the employer almost $4.5 million in 
attorneys' fees and expenses.\4\ The 8th Circuit noted the district 
court's description of the EEOC's tactics in the case:
    There was a clear and present danger that this case would drag on 
for years as the EEOC conducted wide-ranging discovery and continued to 
identify allegedly aggrieved persons. The EEOC's litigation strategy 
was untenable: CRST faced a continuously moving target of allegedly 
aggrieved persons, the risk of never-ending discovery and indefinite 
continuance of trial.
    Additionally, a federal court in New York dismissed a pregnancy 
discrimination lawsuit filed by the EEOC, ruling that the Commission 
did not present sufficient evidence to establish that the employer 
engaged in a pattern or practice of pregnancy discrimination.\5\ The 
EEOC, which represented 600 women against the employer, based its claim 
on anecdotal accounts that the company did not provide a sufficient 
work-life balance for mothers working there. The Court ruled that the 
law does not mandate work-life balance, and that employers are not 
required by law to treat pregnant women and mothers better or more 
leniently than others. The Court criticized the EEOC for using a ``sue-
first, prove later'' approach, noting that, ``'J'accuse!' is not enough 
in court. Evidence is required.''
    In a race discrimination case, the EEOC alleged that a staffing 
company's blanket policy of not hiring individuals with a criminal 
record had a disparate impact on African-Americans.\6\ However, the 
company simply did not have a blanket no-hire policy. Despite becoming 
aware of this issue, the EEOC proceeded with the litigation anyway. The 
U.S. District Court for the Western District of Michigan determined 
that ``this is one of those cases where the complaint turned out to be 
without foundation from the beginning.'' As a result, the Court ordered 
the EEOC to pay a total of $751,942.48 for deliberately causing the 
company to incur attorneys' fees and expert fees when the agency should 
have known that the company did not have the blanket no-hire policy.
    Similarly, in a case alleging discrimination under the Americans 
with Disabilities Act (``ADA''), the Commission continued to litigate 
even when it became clear that the case had no merit.\7\ Specifically, 
the EEOC admitted that the alleged victim of discrimination could not 
perform the essential functions of the job but ``continued to litigate 
the * * * claims after it became clear there were no grounds upon which 
to proceed.'' Thus, the EEOC's claims were ``frivolous, unreasonable 
and without foundation.'' The district court dismissed the claim and 
awarded the employer over $140,000 in attorneys' fees and costs. The 
Court of Appeals affirmed.
Wasting Resources in Challenging Uncontroversial Policies
    Recently, the EEOC has challenged several employers' workplace 
policies which have been in effect for years and have been voluntarily 
agreed to by all interested parties. In challenging these policies, the 
Commission has likely expended significant time and resources. Yet even 
if the EEOC is eventually successful in invalidating these policies, 
any supposed benefits of its efforts will be dubious at best, as it is 
unclear who the Commission is protecting in these instances.
Targeting Voluntary Partnerships
    For example, the Wall Street Journal recently published a story on 
the EEOC's investigation into PricewaterhouseCoopers (``PwC'').\8\ The 
Commission alleges that the firm's partners are actually employees, and 
that the firm's mandatory retirement policy therefore violates the Age 
Discrimination in Employment Act (``ADEA'').
    According to the Wall Street Journal, the Commission has demanded 
that PwC eliminate the retirement policy.
    The EEOC's legal theory conflicts with its own existing guidance on 
partnerships and misapplies the law on this issue as interpreted by the 
Supreme Court.\9\ Even putting those issues aside, one wonders whether 
pursuit of such a case is the best use of the Commission's resources. 
After all, the challenged retirement agreement concerns partners who 
are retiring from a major U.S. accounting firm--hardly a vulnerable 
group in need of protection.\10\ These individuals became partners 
knowing about and agreeing to this retirement policy, and have 
benefitted from the partnership structure while they were partners. 
Pursuant to the policy's terms, these partners enjoy a significant 
retirement pension supported by current partners.
    If the EEOC chooses to sue PwC, the litigation will not aid or 
protect vulnerable workers but will simply force the company to abandon 
a policy that its partners themselves agree is in the business' best 
interest. EEOC's harassment of PwC--and, potentially, all other 
partnerships--is not only an abuse of its enforcement authority, but 
also an incredible waste of resources.
Challenging Workplace Safety Policies
    In another case, the EEOC inexplicably challenged a company's 
common sense efforts to ensure a safe workplace in a potentially 
hazardous industrial environment.\11\ In the EEOC's case against U.S. 
Steel, the employer performed random drug and alcohol testing on its 
probationary employees pursuant to the terms set forth in the 
collective bargaining agreement it entered into with United 
Steelworkers of America (USW). The EEOC has challenged this policy as 
violative of the ADA.
    Working conditions at the plant in question require strict 
adherence to safety rules. Employees work on or near coke batteries, 
which contain molten coke that can be as hot as 2,100 degrees 
Fahrenheit. The working areas are very narrow, are sometimes at 
dangerous heights and are located among large industrial machinery and 
gasses that are both toxic and combustible. Quite clearly, the drug and 
alcohol tests are performed in order to ensure a safe workplace. The 
EEOC might have realized why such tests are so important--and why both 
the employer and union agreed to them--if investigators and simply 
asked about the reasons for the policy, or visited a U.S. Steel 
facility. EEOC investigators did neither.
    Instead, the EEOC blew through the conciliation process and filed 
suit against both U.S. Steel and USW alleging that the random drug and 
alcohol testing violates the ADA, which prohibits workplace medical 
exams that are not ``job-related and consistent with business 
necessity.'' \12\ U.S. Steel argued that the testing is appropriate as 
job-related and as a business necessity because it enables them to 
detect impairment on the job. The district court agreed and granted 
summary judgment for the company. The court noted that ``safety is a 
business necessity and the testing policy genuinely serves this safety 
rationale and is no broader or more intrusive than necessary.''
    That the EEOC pursued such a claim against a policy so that was so 
clearly related to workplace safety is bad enough. However, the 
Commission has ``doubled-down'' on this strategy and has appealed the 
decision, thereby wasting even more resources in pursuit of a 
nonsensical claim.
Issuing Sub-regulatory Guidance on Employers' Use of Criminal 
        Background Information
    The EEOC also pushes its enforcement agenda in the sub-regulatory 
arena. Recently the Commission issued guidance concerning employers' 
use of criminal background information entitled, Enforcement Guidance 
on the Consideration of Arrest and Conviction Records in Employment 
Decisions Under Title VII of the Civil Rights Act of 1964, as amended 
(the Guidance). Although having a criminal record is not specifically 
protected by Title VII,\13\ the EEOC takes the position that because 
``incarceration rates are particularly high for African American and 
Hispanic men,'' \14\ employers' use of criminal background information 
when hiring may have a disparate impact on these individuals.
    Unfortunately, the EEOC did not publicly release a draft of its 
Guidance for the public to have an opportunity to provide comment. This 
is contrary to the strong policy favoring pre-adoption notice and 
comment on guidance documents.\15\ Pre-adoption notice and comment 
would have helped the EEOC arrive at Guidance that better reflects the 
law while limiting controversial elements of the proposal.\16\ This 
lack of transparency is even more troubling considering the fact that 
the Guidance became effective upon publication, giving employers no 
time to reconsider policies and practices in preparation for its 
implementation.
    The Guidance contains substantive flaws as well, the first being 
the suggestion that employers should conduct ``individualized 
assessments'' of candidates before any final employment decision is 
made. According to the Guidance, the individualized assessment 
essentially gives excluded candidates an opportunity to explain why an 
employer's screening policy should not apply to them (e.g., that the 
background check yielded incorrect information).
    Although the Guidance does not have the force of law, it is not 
unreasonable to assume that many employers will likely conclude that it 
does, and that ``individualized assessments'' are now required under 
federal law; or, at the very least, that failure to follow the Guidance 
will be used as evidence of non-compliance. The Guidance is also not 
sufficiently specific as to under what circumstances an employer should 
utilize individualized assessments and how they are to be conducted. 
For instance, must a daycare employer conduct an individualized 
assessment of a job candidate who has been convicted of a violent crime 
against a child? Commissioner Barker, in her separate statement 
opposing the Guidance, recognized how confusing the Guidance could be 
to employers: ``[T]he only real impact the new Guidance will have, will 
be to scare business owners from ever conducting criminal background 
checks.''
    Furthermore, the Guidance notes that state and local laws are 
preempted by Title VII if they ``require or permit the doing of any act 
which would be an unlawful employment practice under Title VII.'' In 
other words, the fact that an employer's criminal screening policy was 
issued in order to comply with state or local law will not be a defense 
to an allegation of disparate impact discrimination. Unfortunately, the 
Guidance offers no help to those employers in situations in which there 
is a potential conflict between state and federal law, and employers 
cannot be expected to perform their own preemption analyses. Although 
employers should not be subject to undue scrutiny by the EEOC simply 
because they are complying with state laws, the Guidance indicates that 
this could be a real possibility.\17\
The Commission's Own Limitation on its Oversight Authority
    The underlying problem with the enforcement abuses described above 
is the fact that the Commission has not implemented the appropriate 
safeguards to ensure it is not wasting resources by pursuing non-
meritorious litigation. This may be because a significant amount of 
litigation authority placed by statute in the hands of the 
Commissioners has been delegated to the General Counsel. It may also be 
partially attributed to subsequent delegation of authority to District 
Offices. In comments submitted to the Commission during the development 
of its Strategic Enforcement Plan (SEP), the Chamber questioned whether 
the Commission was exercising sufficient oversight of that delegation 
and whether the continued delegation is appropriate in light of the 
failure to address these problems.
    Specifically, the Chamber noted that the officials charged with 
setting Commission policy must have a direct stake in the 
implementation of that policy in the context of litigation.
    Unfortunately, the Commission reaffirmed this delegation of 
authority in the final SEP, although it does require ``[a] minimum of 
one litigation recommendation from each District Office [to] be 
presented for Commission consideration each fiscal year.'' Many 
employers believe that this minor change will do little to improve the 
Commission's oversight function. This is primarily because the 
Commission files much more than 15 lawsuits each year (the number of 
EEOC District Offices), and because the District Offices are likely to 
submit uncontroversial cases simply to satisfy this requirement. In her 
comments for the record, Commissioner Barker noted that she is ``very 
concerned about the Commission's delegation of most of its litigation 
authority to the General Counsel.'' \18\ With the reaffirmance of this 
delegation of authority, the Commission severely restricts its ability 
to reign in the enforcement abuses described above.
Conclusion
    We wish to thank you for taking the time to hold this important 
hearing on EEOC oversight. These comments only begin to summarize the 
very great concern that we have with the EEOC's enforcement and policy 
agenda. We look forward to working with you as you continue to examine 
these important issues. Please do not hesitate to contact us if we may 
be of assistance in this matter.
            Sincerely,
                  Randel K. Johnson, Senior Vice President,
                          Labor, Immigration and Employee Benefits.
                                  James Plunkett, Director,
                                                  Labor Law Policy.
                                endnotes
    \1\ The EEOC has a statutory duty to engage in conciliation before 
filing a formal complaint. See 42 U.S.C. Sec.  2000e-5(b). The policy 
rationale behind this requirement is simple: needless litigation should 
be avoided and if compliance may be obtained through informal means, 
that is preferable to expending the significant resources litigation 
requires.
    \2\ The Chamber has previously notified the EEOC of its concern 
regarding the Commission's pursuit of meritless charges and suggested 
potential solutions. See e.g., Johnson, Randel K. STATEMENT OF THE U.S. 
CHAMBER OF COMMERCE TO THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION. 
Small Business Realities, Discrimination Laws and the Equal Employment 
Opportunity Commission, Hearing, December 9, 1998.
    \3\ EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012).
    \4\ In the 8th Circuit decision, although the court ruled against 
the EEOC on almost all counts, it did revive a few claims. Accordingly, 
the attorneys' fees and expenses award was vacated, without prejudice, 
since the employer was no longer a ``prevailing'' party.
    \5\ EEOC v. Bloomberg L.P., 778 F. Supp. 2d 458, 462 (S.D.N.Y. 
2011).
    \6\ EEOC v. Peoplemark, Inc., 2011 U.S. Dist. LEXIS 38696 (W.D. 
Mich. Mar. 31, 2011).
    \7\ EEOC v. Tricore Reference Laboratories, 2012 U.S. App. LEXIS 
17200 (10th Cir. 2012).
    \8\ Discriminating Against Partnerships, WALL STREET JOURNAL, June 
3 2013, available at http://online.wsj.com/article/
SB10001424127887323855804578511693604180764.html?mod=WSJ--Opinion--
AboveLEFTTop
    \9\ See Clackamas Gastroenterology v. Wells, 538 US 440 (2003).
    \10\ The story notes that these partners are compensated in the 
``seven-figure range.''
    \11\ EEOC v. U.S. Steel Corp., No. 10-1284 (W.D. Pa. Feb. 20, 
2012).
    \12\ See 42 U.S.C. 12112(d)(4)(A).
    \13\ The EEOC administers Title VII of the Civil Rights Act of 
1964, which prohibits discrimination on the basis of race, color, 
religion, sex, or national origin. See 42 U.S.C. Sec.  2000e-2(a).
    \14\ See EEOC ENFORCEMENT GUIDANCE ON THE CONSIDERATION OF ARREST 
AND CRIMINAL CONVICTION RECORDS (April 25, 2012), Section II.
    \15\ The Office of Management and Budget, Final Bulletin for Agency 
Good Guidance Practices, 72 Fed. Reg. 3432, 3438 (Jan. 25, 2007) states 
the following: ``Pre-adoption notice-and-comment can be most helpful 
for significant guidance documents that are particularly complex, 
novel, consequential, or controversial. Agencies also are encouraged to 
consider notice-and-comment procedures for interpretive significant 
guidance documents that effectively would extend the scope of the 
jurisdiction the agency will exercise, alter the obligations or 
liabilities of private parties, or modify the terms under which the 
agency will grant entitlements. As it does for legislative rules, 
providing pre-adoption opportunity for comment on significant guidance 
documents can increase the quality of the guidance and provide for 
greater public confidence in and acceptance of the ultimate agency 
judgments.''
    \16\ In October of 2010, the EEOC conducted a hearing on employers' 
use of credit information. It is expected that some form of guidance 
will be issued. The Subcommittee should encourage the EEOC to provide 
an opportunity for the public to comment in writing on any such 
guidance.
    \17\ See, e.g., Waldon v. Cincinnati Public Schools, 1:12-CV-00677 
(S.D. Ohio, April 24, 2013).
    \18\ See COMMENTS FOR THE RECORD, February 20, 2013 Public 
Commission Meeting on the Implementation of the EEOC's Strategic Plan 
for Fiscal Years 2012-2016.
                                 ______
                                 
    [Additional submissions of Mr. Courtney follow:]

       Prepared Statement of the National Council of EEOC Locals,
                         No. 216, AFGE/AFL-CIO

    The National Council of EEOC Locals, No. 216, AFGE/AFL-CIO (``the 
Council'') is the exclusive representative of the bargaining unit 
employees at the Equal Employment Opportunity Commission (EEOC), 
including investigators, attorneys, administrative judges, mediators, 
paralegals, and support staff located in 53 offices around the country. 
The Council thanks you for the opportunity to share our views on the 
record regarding the May 22, 2013 hearing before the Subcommittee on 
Workforce entitled ``Examining the Regulatory and Enforcement Actions 
of the Equal Employment Opportunity Commission.''
    EEOC has historically worked within a tight and often frozen 
budgets, even while adding jurisdiction over new laws. However, the 
budget situation worsened for EEOC, even before the current 
sequestration. In FY12 a 2% across the board cut in FY12 reduced the 
budget to $360M from $367 in FY10 and FY11. This was the first budget 
cut in EEOC's history. The original FY13 continuing resolution (CR) 
carried over the FY12 cut for the first two quarters of FY13. Now with 
sequestration, EEOC must cut an additional $18M or 5% in FY13. These 
cuts come on the heels of five years of record high EEOC charge 
filings. Prior to sequestration, EEOC had already lost 10% of its 
staff, leaving the agency with only 2,245 FTEs nationwide. Now, EEOC 
has furloughed the entire staff, but not contractors, for 5 days, to 
absorb a shortfall that the agency stated it was unable to find from 
other expenses. After a reassessment period to take place between 
July1-12, EEOC will decide whether to furlough staff an additional 3 
days.
    Barring a change to the law, sequestration will remain in effect 
for 10 years. Therefore, EEOC, like its sister agencies in the Federal 
government, must determine the best course for absorbing this fiscal 
year's reduction in funding, which has been prorated this year to 5%. 
In subsequent years of sequestration EEOC must be prepared to operate 
within budgets reduced by 8.2%.
    Typically the impact of sequestration has focused upon larger 
cabinet level agencies.
    Significantly, this was not only the first hearing that this 
Subcommittee has had this Congress on EEOC, but the first hearing since 
the start of sequestration. Therefore, the hearing was an excellent 
opportunity to seek further information into the effects of 
sequestration on EEOC and its stakeholders, including workers, 
employers, and the agency's own employees.
    In fact, Chair Berrien was questioned on sequestration by Ranking 
Member Joe Courtney, who inquired, ``Sequester has been in full swing 
since March 1. Can you talk about how you are handling it in terms of 
staffing?''
    Chair Berrien provided context, explaining that EEOC currently has 
approximately 2,300 employees.\1\ She stated that in 1980 EEOC had 
1,000 employees more than today. In 1990, EEOC had more 500 more than 
today. Since 1990, Congress has added enforcement over the Americans 
with Disabilities Act and the Genetic Information Nondiscrimination to 
the EEOC's jurisdiction. Chair Berrien also discussed that charges have 
been at an historic level, i.e., over 100,000. During this time EEOC 
has had funding decreases and a hiring freeze, which goes back to 2011.
---------------------------------------------------------------------------
    \1\ The overall staffing number for FY13 is 2,226, according to 
EEOC's Congressional FY14 Budget Justification.
---------------------------------------------------------------------------
    After Chair Berrien provided this background, she followed with a 
brief direct response to Ranking Member Courtney's sequestration 
question.
    Chair Berrien: Despite efforts to cut other areas of our budget we 
were unable to make the savings required by sequestration. We are 
furloughing staff five days and if necessary the notice adds an 
additional three days. This will have a real impact on our workforce 
and ability to make further progress towards our mission.
    This statement brings to bear tremendous concerns. Unfortunately, 
time constraints prevented follow up to Chair Berrien's response. The 
response raises more questions than answers for this Subcommittee. 
Chair Berrien's answer regarding the impact of sequestration is worth 
breaking down into greater detail.
``Despite efforts to cut other areas of our budget we were unable to 
        make the savings required by sequestration''
    What efforts were actually made by the EEOC to achieve savings, 
other than furloughs?
    The Office of Management and Budget advised agencies this past 
January to look for savings including cutting temporary employees and 
reviewing contracts to ``determine where cost savings may be 
achieved.'' Did EEOC cut temporary employees? Did EEOC review its 
contracts? Did it make modifications to contracts based on this review? 
Does the agency have any contracts with option years? Has the agency 
reduced or negated any of the option year spending? What savings were 
achieved? Are contractors working while government employees are on 
furlough? What savings, if any, are being required from EEOC's fifteen 
field office budgets? What savings, if any, is EEOC requiring to its 
travel budget? EEOC's website indicates that the agency is going 
forward with public training seminars, despite other agencies, such as 
GSA, cutting such seminars. Are training seminar budgets reduced at 
all?
    EEOC's union, the National Council of EEOC Locals, No. 216, AFGE/
AFL-CIO, has created an initiative to identify areas where savings 
could be captured and efficiencies implemented.\2\ The Union advocates 
reducing furloughs through savings and efficiencies, such as: modifying 
contracts and reducing option year spending; cutting management travel 
that could be conducted by video-teleconference; double-sided printing; 
reducing space through voluntary expanded telework; lowering supervisor 
to employee ratios, and its cost-saving full service intake plan. Will 
the agency act on these suggestions? If not, what actions will the 
agency take?
---------------------------------------------------------------------------
    \2\ Union Seeks Savings to Reduce Furloughs, Daily Labor Report, 
April 8, 2013.
---------------------------------------------------------------------------
``We are furloughing staff 5 days''
    While many agencies originally announced that furloughs would be 
necessary as a result of sequestration, several of these agencies were 
ultimately able to avoid furloughs. Why has EEOC implemented furloughs 
when other agencies have avoided them?
``If necessary the notice adds an additional 3 [furlough] days.''
    Will these additional 3 furlough days be necessary? What cost 
savings could be implemented to avoid these additional days? The 
uncertainty of future furlough days certainly affects planning, 
operational needs, and agency goals. The uncertainty must also be a 
source of concern for the employees, who may or may not be furloughed. 
The agency intends to conduct a reassessment period between July 1-12, 
2013 to determine if the additional 3 days of furloughs will occur, 
referred to as Phase II. Can EEOC resolve this uncertainty now? What is 
the earliest that EEOC can determine and notify employees whether they 
will be required to take an additional three days of furloughs? EEOC 
should take demonstrable actions to avoid furloughs and announce 
immediately that additional furloughs are off the table.
``This will have a real impact on our workforce * * *''
    What is the impact on EEOC's workforce? Five days of furlough 
spread over five two week pay periods results in a10% pre-tax pay loss 
to its employees. Does EEOC have information on the financial 
consequences the pay loss is causing its staff, especially support 
staff whose pay grade levels range from GS-5-GS-7? What is EEOC doing 
to provide information about resources that employees may turn to for 
financial assistance? How are furloughs impacting employee morale, 
specifically in those areas of human capital development that are 
addressed in the annual Federal Employee Viewpoint Survey? How many 
employees will leave between now and the end of the fiscal year? Given 
the hiring freeze, will those additional losses impact morale? What 
impact will these staffing losses have on average case workload?
``This will have a real impact on our * * * ability to make further 
        progress towards our mission.''
    What is the nature of the impact that sequestration will have on 
EEOC's civil rights mission? EEOC ended FY12 with a backlog of more 
than 70,000 discrimination. At the hearing Chair Berrien noted the 
modest progress in the last two years, wherein the agency has reduced 
the backlog by 10% in FY11 and again in FY12. However, EEOC's FY14 
budget justification projects that the backlog will rise dramatically 
to 80,575 by FY14.
    The FY14 budget justification makes no reference to sequestration 
or furloughs. The backlog projection then would appear to be skewed 
lower than is realistic, considering the loss of productivity caused by 
the furlough days. What is EEOC's projection for the FY13 backlog when 
5 furlough days are incorporated into the analysis? What is EEOC's 
projection for the FY13 backlog when 8 furlough days are incorporated 
into the analysis? How many furlough days are anticipated for FY14? How 
will this impact the agency's backlog projection for FY14?
    According to EEOC Performance and Accountability Report for FY12, 
EEOC's average charge processing time is a lengthy 288 days. How will 
furloughs impact average charge processing time? What changes is EEOC 
making to ensure wise use of its limited and scarce resources?
    Furloughs are counterproductive to effectively carrying out the 
EEOC's mission. Therefore, furloughs should only be implemented only as 
a last resort. The testimony provided by Chair indicated that the EEOC 
is still considering adding three additional days of furlough to the 
current 5 days furloughs. The Council urges EEOC to consider 
alternative means other than furloughs, such as those suggested thus 
far by the Union, to achieve the budget reductions required by 
sequestration.
                                 ______
                                 
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
                                 
                                ------                                

    [Additional submissions of Ms. Berrien follow:]
    [The EEOC report, ``Strategic Plan for Fiscal Years 2012-
2016,'' may be accessed at the following Internet address:]

     http://www.eeoc.gov/eeoc/plan/upload/strategic_plan_12to16.pdf

                                ------                                

    [The EEOC report, ``Strategic Enforcement Plan FY 2013-
2016,'' may be accessed at the following Internet address:]

              http://www.eeoc.gov/eeoc/plan/upload/sep.pdf

                                ------                                

    [Questions submitted for the record and their response 
follows:]

                                             U.S. Congress,
                                     Washington, DC, July 16, 2013.
Hon. Jacqueline A. Berrien, Chair,
Equal Employment Opportunity Commission, 131 M Street, NE, Washington, 
        DC 20507.
    Dear Chair Berrien: Thank you for testifying at the May 22, 2013 
Subcommittee on Workforce Protections hearing entitled, ``Examining the 
Regulatory and Enforcement Actions by the Equal Employment Opportunity 
Commission.'' I appreciate your participation.
    Enclosed are additional questions submitted by committee members 
following the hearing. Please provide written responses no later than 
August 16, 2013, for inclusion in the official hearing record. 
Responses should be sent to Owen Caine of the committee staff, who can 
be contacted at (202) 225-7101.
    Thank you again for your contribution to the work of the committee.
            Sincerely,
                                     Tim Walberg, Chairman,
                             Subcommittee on Workforce Protections.
                questions from chairman walberg (mi-07)
    Questions addressing the EEOC's recent and proposed enforcement 
guidance, and the process by which it is promulgated.
    1. What new enforcement guidance is the EEOC considering issuing 
and can you provide a timetable for issuing any new guidance? 
Specifically, is the EEOC considering new guidance on reasonable 
accommodation under the Americans with Disabilities Act? Finally, can 
you give us your assurance that any future guidance will be provided to 
the public for comment prior to making it final? If not, why?
    2. On May 8, 2013, the EEOC held a hearing regarding employer 
wellness programs under the varying requirements of federal non-
discrimination laws, the Health Insurance Portability and 
Accountability Act, and the Patient Protection and Affordable Care Act. 
The health care law codifies and expands the existing rules for 
workplace wellness programs, and proposes to increase, from 20 to 30 
percent, the amount by which health plans can vary their premiums for 
participation in wellness plans. The health care law also endorses the 
value of workplace wellness plans by requiring health plans offered 
through health care exchanges under the law to include wellness and 
chronic disease management as a core benefit. In light of the health 
care law's treatment of wellness programs and the existing federal 
regulatory scheme governing their structure, does the EEOC plan to 
issue guidance on workplace wellness programs? If so, will the EEOC 
work with the Departments of Labor and Health and Human Services in 
promulgating this guidance? Will the EEOC allow for a notice and 
comment period on any wellness guidance they consider?
    3. The EEOC, along with other federal agencies, has specifically 
focused on gender pay discrimination. The EEOC is part of the National 
Equal Pay Task Force and provided compensation discrimination training 
to enforcement personnel across agencies. The Office of Federal 
Contract Compliance Programs (OFCCP) recently rescinded its enforcement 
guidance on pay discrimination and replaced it with broader 
investigation procedures, without providing much guidance to help 
employers determine proactively whether or not they are in compliance. 
What are the EEOC's current plans with regard to gender pay 
discrimination guidance and enforcement? How has the EEOC coordinated 
with other agencies, including the OFCCP to ensure employers do not 
face conflicting or overly burdensome regulation in this area?
    4. Several studies show a relationship between a poor credit 
history and risk of loss to a business, a customer, or a fellow 
employee. How does the EEOC plan to use empirical, scientific-based 
evidence in the development of new guidance, specifically credit 
history guidance?
    5. Employers conduct credit checks to protect them, their 
customers, and other employees from financial harm. For example, the 
Association of Certified Fraud Examiners (ACFE) said in a recent report 
that the top two red flag warnings exhibited by perpetrators associated 
with fraud were instances in which the fraudster was living beyond his 
or her financial means or experiencing financial difficulties. Further, 
employee theft accounts for nearly $1 trillion annually. Employers are 
troubled by the prospect of limits on the use of credit histories for 
employment. Will the EEOC issue credit guidance? If the EEOC intends to 
issue credit guidance what is the timing? Will that guidance go through 
the APA, OMB, or Comptroller General review process? If not, why not?
    6. Your guidance on criminal background screening is 55 pages long 
and contains 167 footnotes. It requires complex individualized 
assessments involving a multitude of amorphous factors. Even 
sophisticated attorneys may not know how to advise their clients. 
Please provide the questions you have received regarding this guidance 
and the responses to those questions provided by the EEOC.
    7. The EEOC and the Federal Trade Commission are working together 
on FAQs to the EEOC's criminal background check guidance. Will the FAQs 
address employers' responsibility under the EEOC guidance and the Fair 
Credit Reporting Act? What is the status of the FAQs?
    8. Central to the EEOC's criminal background check guidance is the 
requirement that employers conduct an ``individualized assessment'' 
coupled with a targeted screen. While not mandating such, the guidance 
states that ``although Title VII does not require individualized 
assessment in all circumstances, the use of a screen that does not 
include individualized assessment is more likely to violate Title 
VII.'' It also states a targeted screen coupled with an opportunity for 
an individualized assessment is a circumstance in which the EEOC 
believes employers will consistently meet the ``job related and 
consistent with business necessity'' defense. How does the EEOC intend 
to enforce individualized assessments? By strongly urging employers to 
conduct ``individualized assessments,'' the guidance imposes a new 
burden on responsible employers seeking to comply with it and avoid an 
EEOC investigation. Will enforcement in this area be driven by whether 
an employer has developed a screen and conducts individualized 
assessment, and, alternatively, will lack of any screen or 
individualized assessment be grounds for an EEOC investigation?
    9. Is there a time or point in the hiring process when the EEOC 
believes it is appropriate to conduct a criminal check? Is it ever 
appropriate to ask about criminal history on an application? Is it ever 
appropriate to consider criminal history prior to an interview?
    10. Regarding the EEOC's criminal background check guidance, what 
if an employer finds out an individual lied on his or her employment 
application regarding their criminal history? If that individual is 
fired for their lack of honesty about a prior conviction, could the 
employer still run afoul of the guidance?
 questions regarding the eeoc's delegation of litigation authority to 
                          the general counsel
    11. The general counsel is required to bring a case before the EEOC 
for a vote to proceed to litigation in four instances, including those 
in which the case would likely create public controversy. What types of 
cases would fall in this ``public controversy'' category? Given the 
high level of interest on the criminal history background checks 
guidance, and its controversy thus far, do you expect the general 
counsel to bring such cases before the commission for a vote to proceed 
prior to litigation?
    12. Should the EEOC decide to pursue litigation that considers 
partners as ``employees,'' would you expect the commissioners to vote 
on whether to commence any such litigation? Would you expect such 
litigation to trigger any of the instances in which the EEOC requires 
commissioners to vote to proceed? For example, do you believe the 
litigation would have a high likelihood for public controversy? Would 
it involve a major expenditure of resources? Would it present issues in 
a developing area of law?
    13. In 2012, 122 lawsuits were filed in the name of the EEOC, but 
only three of those were submitted for the commission's consideration. 
Do you feel this is an appropriate proportion? Were fewer than 3 
percent of the lawsuits brought in the commission's name last year 
appropriate for submission to the commission?
    14. Courts have recently found several cases brought by the EEOC to 
be meritless. For example, the EEOC was ordered to pay the defendants' 
costs and attorneys' fees in the Peoplemark and CRST Van Expedited 
cases. Did the commissioners approve the commencement of litigation in 
those cases and if not, why not? Given that the EEOC as a whole is 
ultimately accountable for outcomes in litigation, do you agree the 
commissioners should play a greater role in approving cases that 
proceed to litigation?
    15. The commission has delegated authority to district directors to 
negotiate settlements and conciliation agreements, and to make 
reasonable cause determinations in a wide range of circumstances. How 
does the commission exercise oversight of that delegation and what 
limits are imposed on the discretion of district directors?
       questions regarding the eeoc's policies and procedures in 
                     investigations and litigation
    16. President Obama has commented on the importance of transparency 
in government. The EEOC's commissioner charges generally result in 
broad-based systemic investigations of an employer's business practices 
and can be based on a commissioner reading a newspaper article about a 
company or a company's hiring statistics. Is the EEOC required to 
explain or articulate any basis for the charge or what led to the 
charge before the employer is subjected to a broad-based systemic 
investigation by the EEOC? Do you believe the approach is consistent 
with the importance of transparency in government and due process in 
our legal system?
    17. Why has the EEOC focused on conducting directed investigations, 
as opposed to investigations initiated in response to a complaint? How 
does the EEOC decide whether to spend resources on directed 
investigations in light of the substantial backlog of complaints?
    18. In many cases, the EEOC engages in a ``conciliation'' or 
settlement process, regularly demanding the statutory maximum in terms 
of a monetary settlement offer and insisting on sweeping changes to the 
employer's human resource operations. Frequently, the settlement 
demands have no relationship to the historical jury verdicts in the 
region, and generally do not take the employer's defenses into 
consideration. What steps are you taking to ensure the EEOC is engaging 
in effective, good-faith conciliation prior to litigation?
    19. For years, the EEOC has litigated challenges to proper 
conciliation with varying degrees of success. Currently, the EEOC is 
taking two completely new litigation positions: (1) courts have no 
authority to review the EEOC's conciliation efforts; and (2) no 
information about conciliation can be put before a court unless the 
EEOC consents. These positions make the EEOC accountable to no party or 
court for its conciliation efforts. After almost 40 years of litigating 
the issue of conciliation, why is the EEOC now attempting to take that 
issue off the table? Please provide any and all documentation regarding 
this EEOC position.
    20. Why do certain EEOC regional directors refuse to share 
information about what the EEOC learned during its investigation during 
the conciliation process even though they ultimately must do so in 
litigation if conciliation fails? Wouldn't sharing relevant information 
with the target of the investigation help resolve more cases and 
accomplish the goal of compliance with Title VII?
    21. Private lawyers who sue employers engage in a cost-benefit 
analysis to determine whether the cost and risk of going forward to 
trial is warranted by the potential financial outcome. As the steward 
of taxpayer dollars, do you believe the EEOC should do this too? What 
are the EEOC's procedures for resolving cases in a timely manner to 
reduce costs to employers, and ultimately the taxpayer?
    22. The EEOC's Strategic Enforcement Plan states the EEOC has 
superior access to data, documents, and potential evidence of 
discrimination in recruitment and hiring, and therefore is better 
situated to eliminate barriers in recruitment and hiring than are 
individuals or private attorneys, who have difficulties obtaining such 
information. In determining whether to bring other systemic litigation, 
does the EEOC consider whether the individuals affected have the means 
and ability to seek redress through private civil litigation? In your 
view, should it do so?
    23. In litigation, the EEOC claims an attorney client privilege 
with charging parties and claimants. But in practice the EEOC does not 
consider their wishes when deciding whether to settle a case or go to 
trial. Why should the EEOC be able to have it both ways unlike 
attorneys in other litigation?
    24. The EEOC is required to establish or make available an 
Alternative Dispute Resolution (ADR) program that may be available for 
the pre-complaint process and the formal complaint process. The EEOC, 
however, may make a determination regarding whether to offer ADR in a 
particular case.
    a. Once a decision has been made by EEOC as to whether to offer 
ADR, are the parties involved notified of that decision prior to 
further administrative contact? If not, why not?
    b. What percentage of cases does the EEOC offer ADR in the pre-
complaint process?
    c. What percentage of cases does the EEOC offer ADR in the formal 
complaint process?
    d. Does the EEOC offer ADR during initial counseling of the 
complainant? If not, what informal methods of resolution does the EEOC 
counselor offer?
    e. How does the EEOC decide whether to offer ADR in a particular 
case?
    f. In deciding whether to offer ADR in a particular case, does the 
EEOC take into account a claimant's desire to mediate, litigate, or 
settle?
    25. When a complainant wishes to file a class complaint after 
initial counseling, the complaint is sent to the relevant EEOC field or 
district office, where an EEOC administrative judge determines whether 
to accept or dismiss the class complaint. To be certified as a class, 
the administrative judge must decide the certification requirements of 
numerosity, commonality, typicality, and adequacy of representation are 
fulfilled.
    a. Does the EEOC separately communicate with each member of the 
proposed class in its determination of the class certification 
requirements?
    b. Does the EEOC collect documents and other non-testimonial 
evidence from each member of the proposed class in its determination of 
the class certification requirements?
    c. Is the employer notified during this process a class complaint 
is under consideration? If not, why not?
    26. In fiscal year 2012, how many lawsuits did the EEOC win 
outright, through jury verdict or summary judgment?
    27. The EEOC claims process has a costly effect on small 
businesses, especially when the case is litigated. What are the EEOC's 
internal procedures for resolving cases in a timely manner to reduce 
costs to employers, and ultimately consumers?
   questions regarding partnership agreements and the definition of 
           ``employee'' under federal non-discrimination law
    28. As the Supreme Court noted in Clackamas Gastroenterology 
Assocs. v. Wells, the definition of ``employee'' in anti-discrimination 
laws--that it is ``an individual employed by an employer''--is 
``completely circular and explains nothing.'' Thus the determination as 
to whether partners in a particular partnership are ``employers'' or 
``employees'' is based on a multi-factored, facts-and-circumstances 
test. To the extent the statute needs clarification, do you believe 
litigation is the proper avenue through which to define partnerships?
    29. Today, most partnerships, particularly large partnerships, 
adopt internal management practices such as governing boards that allow 
them to delegate managerial functions while maintaining partner 
ownership of the firm, control over professional work product, and 
voice on issues critical to the partnership. In your view, does the 
delegation of partnership authority to internal governing boards 
transform the partners of a firm into employees rather than employers? 
What factors, in the EEOC's view, are most critical to determining 
whether and when such a delegation transforms partners into 
``employees?''
    30. In the last decade the EEOC brought a highly publicized lawsuit 
against the law firm Sidley Austin, alleging its partners were 
employees and its retirement policy for partners therefore violated the 
Age Discrimination in Employment Act. What, in the EEOC's view, were 
the most significant characteristics of Sidley's partnership structure 
that led the EEOC to conclude that its partners were ``employees?''
    31. Is the EEOC currently pursuing directed investigations of 
mutually agreed upon retirement policies for partners that were not 
commenced following a charge filed by a partner? If so, what factors 
did the EEOC consider in deciding to prioritize those investigations 
over the tens of thousands of backlogged cases involving employee 
complaints?
    32. The EEOC's Strategic Enforcement Plan lists six enforcement 
priorities. Do you intend to make mutually agreed upon retirement 
policies in legal and accounting professional partnerships a focus of 
the EEOC's enforcement efforts? If so, which of the six enforcement 
priorities identified in the Strategic Enforcement Plan make mutually 
agreed upon retirement policies for partners an EEOC priority?
   questions regarding the eeoc's interaction with the department of 
     labor's office of federal contract compliance programs (ofccp)
    34. Did the EEOC comment on the OFCCP's rescission of the agency's 
2006 Compensation Standards and the issuance of OFCCP Directive 307? 
Why not? The EEOC agreed with the 2006 Compensation Standards. Has the 
EEOC's position changed?
    35. As you know, Executive Order (EO) 12067 requires the EEOC to 
ensure coordination of federal equal employment opportunity enforcement 
efforts. In particular, EO 12067 requires the EEOC ``to develop uniform 
standards, guidelines, and policies defining the nature of employment 
discrimination'' and ``develop uniform standards and procedures for 
investigations and compliance reviews.'' Did the EEOC review OFCCP's 
notice of rescission of the 2006 Compensation Standards and the 
issuance of Directive 307 under EO 12067? Did the EEOC provide any 
feedback to OFCCP about the approach contained in Directive 307? Please 
provide any and all correspondence between the EEOC and OFCCP on this 
subject.
    36. Under the EEOC's Compensation Manual, published in 2000, the 
EEOC instructs investigators to ``determine the similarity of jobs by 
ascertaining whether the jobs generally involve similar tasks, require 
similar skill, effort, and responsibility, working conditions, and are 
similarly complex or difficult.'' The EEOC's Compensation Manual 
continues, ``[t]he actual content of the jobs must be similar enough 
that one would expect those who hold the jobs to be paid at the same 
rate or level.'' Does the EEOC interpret OFCCP Directive 307 to be 
altogether consistent with these EEOC instructions?
    37. As you know, in August, 2012, the National Research Council of 
the National Academies of Sciences (NAS) released a report entitled 
``Collecting Compensation Data from Employers.'' This report was 
commissioned by the EEOC. The report contained two primary 
recommendations:
    Recommendation 1: In conjunction with the Office of Federal 
Contract Compliance Programs of the U.S. Department of Labor and the 
Civil Rights Division of the U.S. Department of Justice, the U.S. Equal 
Employment Opportunity Commission should prepare a comprehensive plan 
for use of earnings data before initiating any data collection.
    Recommendation 2: After the U.S. Equal Employment Opportunity 
Commission, the Office of Federal Contract Compliance Programs, and the 
U.S. Department of Justice complete the comprehensive plan for use of 
earnings data, the agencies should initiate a pilot study to test the 
collection instrument and the plan for the use of the data. The pilot 
study should be conducted by an independent contractor charged with 
measuring the resulting data quality, fitness for use in the 
comprehensive plan, cost, and respondent burden.
    a. What is the status of the EEOC's implementation of these 
recommendations? Has the EEOC and OFCCP developed a comprehensive plan? 
If so, please provide a copy of the comprehensive plan. If not, why 
not, and when will it be completed?
    b. Has an independent contractor been selected for a pilot project?
    c. How will the EEOC ensure coordination with OFCCP with regard to 
these recommendations?
    d. Has the EEOC had any discussions with OFCCP about the comments 
OFCCP received in response to the Advance Notice of Proposed Rulemaking 
on a Compensation Data Collection Tool, 76 Fed. Reg. 49398 (Aug. 10, 
2011)?
    e. Will the EEOC commit to using its authority under EO 12067 to 
require OFCCP to adhere to the NAS recommendations before issuing any 
proposed regulations on collecting compensation data?
              questions from representative hudson (nc-08)
    1. There is a case in which an employee filed a gender 
discrimination case against her employer. When the employer tried to 
meet with the EEOC representative and the employee for consultation, 
the employer instead found the EEOC representative acting as a 
prosecuting attorney for the employee instead of a negotiator between 
the parties. The employer was not notified prior to the meeting of the 
terms of these discussions, and whether or not the EEOC representative 
would be used in a mediating role or prosecuting role, leaving the 
impression these meetings were informal negotiations.
    a. To what extent does the EEOC give a notice of terms to all 
parties involved prior to in person consultations?
    b. In other cases is it protocol for an EEOC representative to play 
negotiator/ mediator and prosecutor during an investigation?
    c. If employers are not notified of the status of the consultation 
meeting, what are their administrative rights to have counsel present 
and/or delay the meeting until counsel is present?
    2. As you know, the EEOC's Chicago District Office is currently 
investigating PricewaterhouseCoopers regarding their partnership 
agreement and mandatory retirement age. The six-factor partnership test 
adopted by the Supreme Court in Clackamus would presume the partners at 
PricewaterhouseCoopers are not subject to the ADEA.
    a. Should the EEOC decide to pursue litigation of this case, do you 
believe it would involve a major expenditure of resources or have a 
high likelihood for public controversy?
    b. Given the Strategic Enforcement Plan's objective of retaining 
the decision to commence litigation over cases that (1) will involve a 
major expenditure of resources; (2) present issues in a developing area 
of law; or (3) cases with a high likelihood for public controversy, 
would you expect the commission, and not the general counsel, to vote 
on whether to commence litigation against PricewaterhouseCoopers?
                                 ______
                                 

          EEOC Response to Questions Submitted for the Record

    1. What new enforcement guidance is the EEOC considering issuing 
and can you provide a timetable for issuing any new guidance? 
Specifically, is the EEOC considering new guidance on reasonable 
accommodation under the Americans with Disabilities Act? Finally, can 
you give us your assurance that any future guidance will be provided to 
the public for comment prior to making it final? If not, why?

    Response: Members of the Commission have spoken publicly about 
their interest in issuing revised guidance on reasonable accommodation 
under the ADA. In particular, the existing guidance does not reflect 
changes to the definition of ``disability'' resulting from enactment of 
the ADA Amendments Act of 2008 (ADAAA). Additionally, a number of legal 
issues concerning reasonable accommodation have arisen in the more than 
10 years since our existing guidance was last revised, and others are 
likely to arise as the question of whether an individual has a 
disability within the meaning of the ADA becomes less important as a 
result of the ADAAA. For example, in June 2011, the Commission held a 
meeting on the extent of an employer's obligation to provide leave as a 
reasonable accommodation. http://www.eeoc.gov/eeoc/meetings/6-22-11/
index.cfm.
    Other areas of interest for the Commission, as evidenced by public 
meetings we have held in the past two years include pregnancy 
discrimination, http://www.eeoc.gov/eeoc/meetings/2-15-12/index.cfm, 
and the application of the ADA to employer-sponsored wellness programs. 
http://www.eeoc.gov/eeoc/meetings/5-8-13/index.cfm. Some Commissioners 
and a number of stakeholders present at those meetings expressed the 
hope that the EEOC would issue guidance on these subjects.
    However, I cannot say whether the Commission will decide to issue 
guidance on these or other topics. The specific guidance that the 
Commission decides to issue, its content, and the time frame within 
which it is issued are all the product of a deliberative process, and a 
majority of Commissioners must agree on the outcome.
    We value the views and varying perspectives of our stakeholders, 
and routinely seek input from the public in developing guidance.

    2. On May 8, 2013, the EEOC held a hearing regarding employer 
wellness programs under the varying requirements of federal non-
discrimination laws, the Health Insurance Portability and 
Accountability Act, and the Patient Protection and Affordable Care Act. 
The health care law codifies and expands the existing rules for 
workplace wellness programs, and proposes to increase, from 20 to 30 
percent, the amount by which health plans can vary their premiums for 
participation in wellness plans. The health care law also endorses the 
value of workplace wellness plans by requiring health plans offered 
through health care exchanges under the law to include wellness and 
chronic disease management as a core benefit. In light of the health 
care law's treatment of wellness programs and the existing federal 
regulatory scheme governing their structure, does the EEOC plan to 
issue guidance on workplace wellness programs? If so, will the EEOC 
work with the Departments of Labor and Health and Human Services in 
promulgating this guidance? Will the EEOC allow for a notice and 
comment period on any wellness guidance they consider?

    Response: As noted in response to Question 1, Commissioners and 
stakeholders present at the May 8, 2013 Commission meeting on the ADA 
and wellness programs certainly expressed interest in the Commission 
issuing guidance on this subject. Again, whether guidance is issued and 
what the content of that guidance will be will need to emerge from the 
Commission's deliberative process.
    In developing any guidance, the Commission will coordinate closely 
with the Departments of Labor, Health and Human Services, and the 
Treasury (Internal Revenue Service), all of whom have issued 
regulations under the Affordable Care Act concerning wellness programs. 
The Commission has had considerable experience working with these 
agencies to understand laws that are outside our area expertise, most 
notably as part of the process of issuing proposed and final 
regulations to implement Title II of the Genetic Information 
Nondiscrimination Act. We will also consider input from the public, and 
already have access to both the written testimony of participants at 
the Commission meeting as well as comments submitted during the 15 days 
following the meeting when the meeting record remained open for public 
comment.

    3. The EEOC, along with other federal agencies, has specifically 
focused on gender pay discrimination. The EEOC is part of the National 
Equal Pay Task Force and provided compensation discrimination training 
to enforcement personnel across agencies. The Office of Federal 
Contract Compliance Programs (OFCCP) recently rescinded its enforcement 
guidance on pay discrimination and replaced it with broader 
investigation procedures, without providing much guidance to help 
employers determine proactively whether or not they are in compliance. 
What are the EEOC's current plans with regard to gender pay 
discrimination guidance and enforcement? How has the EEOC coordinated 
with other agencies, including OFCCP to ensure employers do not face 
conflicting or overly-burdensome regulation in this area?

    Response: The Commission's current Strategic Enforcement Plan (SEP) 
emphasizes the importance of ``a concentrated and coordinated 
approach'' to enforcement that focuses on six priority issues, one of 
which is gender pay discrimination. EEOC plans to continue its 
enforcement and outreach to promote compliance. This emphasis on 
coordination is particularly well-established with respect to gender 
pay discrimination, because the EEOC and the Department of Labor have 
two longstanding Memoranda of Understanding about coordinating on 
training and investigations.
    Indeed, in 2011 to 2012, the EEOC included OFCCP staff in its 
nationwide training about gender pay discrimination, so that staff from 
both agencies learned the same principles. This training reached 
approximately 2000 people. The EEOC's Memoranda of Understanding can be 
found at http://www.eeoc.gov/laws/mous/index.cfm.

    4. Several studies show a relationship between a poor credit 
history and risk of loss to a business, a customer, or a fellow 
employee. How does the EEOC plan to use empirical, scientific-based 
evidence in the development of new guidance, specifically credit 
history guidance?

    Response: The specific guidance that the Commission decides to 
issue, its content, and the time frame within which it is issued are 
all the product of a deliberative process, and a majority of 
Commissioners must agree on the outcome. Should the Commission decide 
to issue any guidance regarding employers' consideration of the credit 
histories of applicants and/or employees, it will consider the public 
input received from business and employee stakeholders as part of the 
October 2010 Commission meeting on credit histories, and will also 
consider relevant research in developing such guidance, as it does 
whenever it issues any policy or guidance.

    5. Employers conduct credit checks to protect them, their 
customers, and other employees from financial harm. For example, the 
Association of Certified Fraud Examiners (ACFE) said in a recent report 
that the top two red flag warnings exhibited by perpetrators associated 
with fraud were instances in which the fraudster was living beyond his 
or her financial means or experiencing financial difficulties. Further, 
employee theft accounts for nearly $1 trillion annually. Employers are 
troubled by the prospect of limits on the use of credit histories for 
employment. Will the EEOC issue credit guidance? If the EEOC intends to 
issue credit guidance what is the timing? Will that guidance go through 
the APA, OMB, or Comptroller General review process? If not, why not?

    Response: The specific guidance that the Commission decides to 
issue, its content, and the time frame within which it is issued are 
all the product of a deliberative process, and a majority of 
Commissioners must agree on the outcome. Since it has not been 
determined what form any such guidance would take were it to be issued, 
which review process might apply has not been determined. However, if 
and when the Administrative Procedure Act applies, the Commission will, 
as it has in the past, satisfy the requirements of the APA when issuing 
regulations.

    6. Your guidance on criminal background screening is 55 pages long 
and contains 167 footnotes. It requires complex individualized 
assessments involving a multitude of amorphous factors. Even 
sophisticated attorneys may not know how to advise their clients. 
Please provide the questions you have received regarding this guidance 
and the responses to those questions provided by the EEOC.

    Response: The EEOC recognizes that many of our stakeholders, 
including small businesses, job applicants, and employees, need 
information about this Guidance and our laws in general, but do not 
want (and do not have the time) to read the longer, more legally 
complex document itself.
    Consequently, whenever the EEOC issues a substantive sub-regulatory 
guidance like the April 2012 Arrest and Conviction Guidance, it 
publishes one or more short, reader-friendly Q&A documents that serve 
two purposes: (1) to explain the most important points in the longer 
guidance in a straightforward manner; and (2) to respond directly to 
some of the most frequently asked questions about the longer document. 
While the EEOC does not archive all of the questions and comments 
received around the country, the most frequently-asked questions come 
to our attention and we strive to be responsive.
    For the Arrest and Conviction Guidance, the EEOC issued two plain-
language documents. First, the EEOC issued basic ``Questions and 
Answers'' shortly after the publication of the Guidance in April 2012. 
See http://www.eeoc.gov/laws/guidance/qa--arrest--conviction.cfm. 
There, the EEOC answered seven basic questions that reflect some of the 
comments and questions the Commission received after its July 2011 
public meeting about arrest and conviction records as a hiring barrier. 
See http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm. This Question 
and Answer document begins by explaining how employment actions based 
on criminal background checks could become a Title VII issue, a 
question frequently raised by members of the public.
    Later, to respond to questions about the Guidance itself, the EEOC 
published a ``What You Should Know'' document. Here, the EEOC explained 
in two sentences how an employer could show that its criminal 
background check was consistent with Title VII under the Guidance. The 
EEOC also emphasized that the Guidance does not prevent employers from 
using criminal background checks to screen applicants and employees in 
a meaningful way, a point about which public discussion continued. See 
http://www.eeoc.gov/eeoc/newsroom/wysk/arrest--conviction--records.cfm.

    7. The EEOC and the Federal Trade Commission are working together 
on FAQs to the EEOC's criminal background check guidance. Will the FAQs 
address employers' responsibility under the EEOC guidance and the Fair 
Credit Reporting Act? What is the status of the FAQs?

    Response: The EEOC and the FTC are working on two brief technical 
assistance publications with respect to background checks, one for 
employers and another for individuals. Written in plain language, the 
publications are designed to explain to employers what their 
responsibilities are under the equal employment opportunity laws and 
the Fair Credit Reporting Act with respect to background checks, and to 
explain to individuals what their rights are. The publications would 
not focus only on criminal background checks or set forth any new 
policy. The agencies are still designing the publications but hope to 
finalize them in the spring of 2014.

    8. Central to the EEOC's criminal background check guidance is the 
requirement that employers conduct an ``individualized assessment'' 
coupled with a targeted screen. While not mandating such, the guidance 
states that ``although Title VII does not require individualized 
assessment in all circumstances, the use of a screen that does not 
include individualized assessment is more likely to violate Title 
VII.'' It also states a targeted screen coupled with an opportunity for 
an individualized assessment is a circumstance in which the EEOC 
believes employers will consistently meet the ``job related and 
consistent with business necessity'' defense. How does the EEOC intend 
to enforce individualized assessments? By strongly urging employers to 
conduct ``individualized assessments,'' the guidance imposes a new 
burden on responsible employers seeking to comply with it and avoid an 
EEOC investigation. Will enforcement in this area be driven by whether 
an employer has developed a screen and conducts individualized 
assessment, and, alternatively, will lack of any screen or 
individualized assessment be grounds for an EEOC investigation?

    Response: Enforcement in this area, like EEOC enforcement in other 
areas, generally will be driven by charges we receive. When the EEOC 
receives a charge of employment discrimination, we investigate the 
claim to gather relevant evidence. We first assess the potential merits 
of the charge, which includes a careful consideration of the underlying 
facts. As part of the investigative process, we provide the employer 
with the opportunity to respond to the allegations. In evaluating 
charges alleging that someone has been excluded from a job based on an 
arrest or conviction record, EEOC investigators will apply the legal 
standards in Title VII as explained more fully in the EEOC's guidance, 
including the principles favoring targeted screens and an opportunity 
for an individualized assessment. The outcome of a particular Title VII 
investigation will turn on the application of these principles to the 
unique facts of each case.
    Simply asserting that a screen is ``targeted'' or that the employer 
has conducted an individualized assessment will not in itself be 
determinative. The EEOC investigators will focus on evidence of how the 
screen or the individualized assessment has been implemented in 
practice.

    9. Is there a time or point in the hiring process when the EEOC 
believes it is appropriate to conduct a criminal check? Is it ever 
appropriate to ask about criminal history on an application? Is it ever 
appropriate to consider criminal history prior to an interview?

    Response: EEOC's guidance explains how an employer may 
appropriately and legally consider the criminal history of an applicant 
or employee. The guidance is intended to assist job seekers, employees, 
employers, and many other agency stakeholders. As a ``best practice,'' 
the Commission recommends in the Guidance that employers avoid asking 
about criminal history on the job application itself. The policy 
rationale is that an employer is more likely to objectively assess the 
relevance of a conviction if it becomes known after the employer is 
already knowledgeable about the individual's qualifications and 
experience.
    The Guidance also recognizes that ``[the employer's c]ompliance 
with federal laws and/or regulations is a defense to a charge of 
discrimination.'' The Guidance notes that ``employers are subject to 
federal statutory and/or regulatory requirements that prohibit 
individuals with certain criminal records from holding particular 
positions or engaging in certain occupations.'' Employers may want to 
inform applicants early in the hiring process if one of these federal 
exclusions applies.

    10. Regarding the EEOC's criminal background check guidance, what 
if an employer finds out an individual lied on his or her employment 
application regarding their criminal history? If that individual is 
fired for their lack of honesty about a prior conviction, could the 
employer still run afoul of the guidance?

    Response: Generally applicable and consistently implemented 
policies against falsifying or misrepresenting information in an 
application are enforceable. An employer whose practice is to terminate 
anyone whom it finds out has lied on an employment application may 
terminate someone who lies in response to a question about his or her 
criminal background. However, if the employee's prior arrest or 
conviction, not the fact that he or she lied about it on an 
application, is the reason that the employer terminated the employee, 
EEOC will apply the principles in the guidance to evaluate any charge 
of discrimination that is filed.

    11. The general counsel is required to bring a case before the EEOC 
for a vote to proceed to litigation in four instances, including those 
in which the case would likely create public controversy. What types of 
cases would fall in this ``public controversy'' category? Given the 
high level of interest on the criminal history background checks 
guidance, and its controversy thus far, do you expect the general 
counsel to bring such cases before the commission for a vote to proceed 
prior to litigation?

    Response: The Commission does not maintain a list of types of cases 
that may generate public controversy because what is considered 
controversial necessarily changes over time. In deciding whether 
litigation of a particular case is likely to generate public 
controversy, the General Counsel considers various factors, including 
whether the litigation of similar cases in the past generated public 
controversy or adverse publicity, whether any issue in the litigation 
has been the subject of discussion in the Congress, and whether any 
issue in the case has been the subject of significant debate in the 
media. The Commission recognizes that, as things currently stand, cases 
challenging an employer's use of criminal history as an exclusionary 
criterion are likely to generate public controversy. The General 
Counsel accordingly has presented all such cases to the full Commission 
for a vote, and will continue to do so for the foreseeable future.

    12. Should the EEOC decide to pursue litigation that considers 
partners as ``employees,'' would you expect the commissioners to vote 
on whether to commence any such litigation? For example, do you believe 
the litigation would have a high likelihood for public controversy? 
Would it involve a major expenditure of resources? Would it present 
issues in a developing area of law?

    Response: A case in which the applicable legal standards are 
settled law, such as whether partners were covered as employees, would 
generally not be submitted to the Commission. The Supreme Court set out 
the factors to be considered in making such a determination ten years 
ago, and the Commission has litigated the issue in the context of law 
firms without generating public controversy. The decision whether any 
such case involves a developing area of the law, a major expenditure of 
resources, or is likely to generate public controversy is decided on a 
case-by-case basis.

    13. In 2012, 122 lawsuits were filed in the name of the EEOC, but 
only three of those were submitted for the commission's consideration. 
Do you feel this is an appropriate proportion? Were fewer than 3 
percent of the lawsuits brought in the commission's name last year 
appropriate for submission to the commission?

    Response: Prior to the Commission's adoption of a Strategic 
Enforcement Plan in December 2012, there was no number or proportion of 
cases which were to be submitted to the full Commission. One of the 
primary purposes of the Commission's delegation of litigation authority 
to the General Counsel in the 1995 National Enforcement Plan (NEP) was 
to drastically reduce the number of litigation recommendations 
submitted to the Commission to free up the Commissioners to focus on 
larger policy issues. Delegation of authority to the General Counsel to 
approve litigation is especially appropriate for EEOC since EEOC has a 
presidentially appointed and Senate confirmed General Counsel whom 
Congress made responsible for the conduct of litigation on behalf of 
the Commission. The Commission carefully reviewed the delegation under 
the NEP and reaffirmed delegation under the Strategic Enforcement Plan 
in December 2012 with the addition that one litigation recommendation 
from each District Office be submitted to the Commission each fiscal 
year, including litigation recommendations which otherwise meet the 
criteria for Commission approval.

    14. Courts have recently found several cases brought by the EEOC to 
be meritless. For example, the EEOC was ordered to pay the defendants' 
costs and attorneys' fees in the Peoplemark and CRST Van Expedited 
cases. Did the commissioners approve the commencement of litigation in 
those cases and if not, why not? Given that the EEOC as a whole is 
ultimately accountable for outcomes in litigation, do you agree the 
commissioners should play a greater role in approving cases that 
proceed to litigation?

    Response: The Commission approved litigation in the Peoplemark case 
in September 2008. CRST was approved for litigation by the General 
Counsel in September 2007. While both of these cases were filed during 
the prior administration, it is clear that CRST was not a Commission-
level case when the case was authorized for litigation.
    The EEOC appealed the district court's award of attorney's fees in 
Peoplemark. The case has been briefed and argued and is currently 
awaiting decision by the United States Court of Appeals for the Sixth 
Circuit. The EEOC argued on appeal that Peoplemark is not entitled to 
attorney's fees because it failed to show that the EEOC's suit, at any 
time during the litigation, was frivolous, unreasonable, or without 
foundation--the standard the United States Supreme Court has 
established for awarding fees to a defendant in a Title VII action.
    The EEOC appealed CRST to the 8th Circuit and although a divided 
panel upheld much of the lower court decision, it revived two 
individual claims and thus set aside the fees as the defendant was not 
a prevailing party. The CRST ruling held that the Agency must, at least 
in non-pattern-or-practice class cases, identify and conciliate for 
each claimant in the administrative process before filing suit on their 
behalf. This ruling departed from prior settled law and practice and 
was thus unforeseen at the time the case was filed. The EEOC later 
dismissed one claim and settled the one remaining claimant case this 
year. On remand, CRST filed a new petition for fees, which the district 
court granted, awarding $4.7 million in attorney's fees, expenses, and 
costs. EEOC anticipates that it will appeal the fees order.
    Peoplemark, CRST and the few other losses we have suffered over the 
past few years are but a small part of the EEOC's highly successful 
litigation program. For example in 2012, we resolved 253 merits 
lawsuits for a total of $44,205,586 in monetary relief. Our success 
rate in litigation has been more than 90 percent for the past 5 years 
at least. This year we conducted 10 trials and won 8 of them, all of 
the victories involving cases filed pursuant to the Commission's 
delegated authority.
    As noted above, the Commission has carefully reviewed the 
delegation of litigation authority to the General Counsel and 
reaffirmed that delegation under the Strategic Enforcement Plan in 
December 2012 with the addition that one litigation recommendation from 
each District Office be submitted to the Commission each fiscal year.

    15. The commission has delegated authority to district directors to 
negotiate settlements and conciliation agreements, and to make 
reasonable cause determinations in a wide range of circumstances. How 
does the commission exercise oversight of that delegation and what 
limits are imposed on the discretion of the district directors?

    Response: The EEOC has received nearly 100,000 charges each year 
for the last three years. Agency staff, including District Directors, 
is responsible for investigating and resolving charges. Delegation to 
the District Directors is critical to an efficient charge resolution 
system, as without it, the inventory of charges would increase 
dramatically.
    There is no express limitation on the exercise of delegated 
authority by District Directors, but they are guided in their exercise 
of delegated authority by the agency's Strategic Plan and Strategic 
Enforcement Plan (both were Commission-approved). The Chair is 
responsible for overall management of agency operations and personnel; 
various intermediate personnel directly supervise agency staff. The 
Director of the Office of Field Programs (OFP) is responsible for day-
to-day supervision and oversight of the work of the District Directors. 
Among his regular interactions with the Chair and members of the 
Commission, the Director of OFP briefs the Commission quarterly on the 
administrative enforcement program of the agency (which includes 
investigation and resolution of private sector charges through 
mediation or conciliation), as provided in the Strategic Enforcement 
Plan. As members of the Senior Executive Service, District Directors' 
performance is evaluated at least annually by the Director of the 
Office of Field Programs, and reviewed by a group of Senior Executives 
from within and outside the EEOC who are appointed by the Chair in 
accordance with Office of Personnel Management guidelines.
    In addition, as part of the agency's Strategic Plan, a Quality 
Control Plan (QCP) is being developed that establishes specific 
criteria for evaluating the quality of EEOC investigations and 
conciliations and provides for an expanded review system to conduct 
assessments of investigations and conciliations in each district.

    16. President Obama has commented on the importance of transparency 
in government. The EEOC's commissioner charges generally result in 
broad-based systemic investigations of an employer's business practices 
and can be based on a commissioner reading a newspaper article about a 
company or a company's hiring statistics. Is the EEOC required to 
explain or articulate any basis for the charge or what led to the 
charge before the employer is subjected to a broad-based systemic 
investigation by the EEOC? Do you believe the approach is consistent 
with the importance of transparency in government and due process in 
our legal system?

    Response: The EEOC uses Commissioner charges under Title VII of the 
Civil Rights Act and the Americans with Disabilities Act when there is 
reason to believe discrimination has occurred. Congress authorized the 
use of Commissioner charges when it enacted Title VII in 1964 and they 
have been used for decades for investigations of varying scope, from 
individual to class-based.
    In 1972, Congress broadened the Commissioner charge authority, 
removing a requirement that there be ``reasonable cause'' to 
investigate. In 1984, the Supreme Court upheld the authority of the 
Commission to issue and investigate Commissioner charges, under the 
same standards applicable to charges filed by members of the public, to 
determine whether the law has been violated. Equal Employment 
Opportunity Commission v. Shell Oil Company, 466 U.S. 54 (1984). The 
Supreme Court stated that this authority was essential to achieving the 
purposes of Title VII. Id. at 77.
    Investigations initiated through these mechanisms are consistent 
with requirements of transparency in government and due process. As 
required by statute, the EEOC advises the employer of the alleged 
discrimination in the Commissioner charge, and explains its findings at 
various stages in the process, including in the predetermination 
interview, Letter of Determination, and conciliation. The employer is 
given opportunities to resolve the findings voluntarily through 
conciliation, and the employer is not bound by the EEOC's findings in 
the administrative process but has the right to a trial de novo in 
court.
    While the employer is apprised of the alleged discrimination, the 
statute limits the bounds of transparency. Title VII explicitly 
prohibits the agency and its staff from making ``public in any manner 
whatever information'' the Commission may obtain in an investigation, 
including the existence of an investigation. 42 U.S.C. Sec.  2000e-
8(e).

    17. Why has the EEOC focused on conducting directed investigations, 
as opposed to investigations initiated in response to a complaint? How 
does the EEOC decide whether to spend resources on directed 
investigations in light of the substantial backlog of complaints?

    Response: The EEOC devotes the vast majority of its resources to 
investigations initiated in response to charges filed by members of the 
public. In contrast, directed investigations comprise a small portion 
of the Commission's resources. For example, in FY 2012, almost 100,000 
charges were filed with EEOC, and over 111,000 were resolved. In 
contrast, the agency initiated only 24 directed investigations in FY 
2012.
    The authority for directed investigations is found in the Age 
Discrimination in Employment Act (ADEA), 29 U.S.C. Sec.  626(a) and 
(b), and the Equal Pay Act (EPA), 29 U.S.C. Sec.  206(d), both of which 
give the EEOC the authority to investigate under sections 9, 11 and 17 
of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. Sec. Sec.  
209, 211 and 217. The term ``directed investigation'' is not a 
statutory term but is used by the EEOC to refer to investigations 
initiated by the agency under these provisions, which authorize the 
EEOC to investigate without an existing charge of discrimination filed 
by a member of the public. The ADEA language grants the EEOC the power 
to make investigations when ``necessary or appropriate for the 
administration'' of the ADEA, 29 U.S.C. Sec.  626(a). Section 11 of the 
FLSA gives the EEOC the authority to ``investigate such facts, 
conditions, practices, or matters as [it] may deem necessary or 
appropriate to determine whether any person has violated any provision 
of this chapter or which may aid in the enforcement of the provisions 
of this chapter * * *'' 29 U.S.C. Sec.  211(a).
    The EEOC exercises its statutory authority to initiate directed 
investigations and Commissioner charges to maximize the effectiveness 
of its law enforcement efforts when the agency has reason to believe 
that discrimination has occurred, even though an individual member of 
the public may not have come forward to file a charge. Congress 
authorized Commissioner charges and directed investigations in order to 
provide the EEOC with a mechanism to address possible discriminatory 
acts that otherwise might go unaddressed.
    The EEOC uses these tools to investigate situations where 
individuals may for various reasons be unwilling or unable to file 
charges, for example when the employee fears retaliation should he or 
she file a charge. Other cases may be initiated on behalf of victims 
who are in underserved communities, have been totally excluded from the 
workplace, or are unaware of discriminatory hiring or job referral 
barriers, such as racial, gender or age preferences covertly used by 
employment agencies at the behest of an employer. Commissioner charges 
and directed investigations are methods of seeking relief for these 
victims of discrimination.
    In 2006, the Commission unanimously voted to reaffirm the 
importance of Commissioner charges and directed investigations as a 
central component of the EEOC's systemic program. In adopting the 
recommendations of its Systemic Task Force, led by Vice Chair Leslie 
Silverman, the Commission approved a series of measures to strengthen 
the agency's efforts to address pattern or practice, policy and/or 
class cases where the alleged discrimination has a broad impact on an 
industry, profession, company, or geographic location. The Task Force 
found that Commissioner charges and directed investigations ``are 
important tools in the effort to combat systemic discrimination, as 
many victims of discrimination do not come to EEOC because they fear 
retaliation, do not know about their rights, or are unaware of the 
discrimination (particularly where the issue is hiring).''

    18. In many cases, the EEOC engages in a ``conciliation'' or 
settlement process, regularly demanding the statutory maximum in terms 
of a monetary settlement offer and insisting on sweeping changes to the 
employer's human resource operations. Frequently, the settlement 
demands have no relationship to the historical jury verdicts in the 
region, and generally do not take the employer's defenses into 
consideration. What steps are you taking to ensure the EEOC is engaging 
in effective, good-faith conciliation prior to litigation?

    Response: Conciliation is the statutorily required process by which 
the EEOC attempts to resolve discrimination through ``informal means of 
conference, conciliation, and persuasion.'' 42 U.S.C. Sec.  2000e-5. 
The purpose of conciliation is to remedy the violation, as required by 
statute. If a particular policy or practice was found to be 
discriminatory, the EEOC would seek to have the employer change its 
practices to end the discrimination and to prevent further 
discrimination from occurring. Conciliation occurs only after the 
investigation of a charge has been completed, and the EEOC has reached 
a determination that the evidence establishes that there is 
``reasonable cause'' to believe that discrimination occurred.
    The percentage of successful conciliations has been increasing 
during the Chair's tenure. Successful conciliation rates: FY 2010-27 
percent; FY 2011-31 percent; FY 2012--38 percent; FY 2013 (midyear)--40 
percent. Specific data is reflected below:

 
----------------------------------------------------------------------------------------------------------------
                                                                    Cause
                         Fiscal year                             resolutions     Conciliations      Percentage
----------------------------------------------------------------------------------------------------------------
FY 2010......................................................           4,981            1,348            27.1%
FY 2011......................................................           4,325            1,351            31.2%
FY 2012......................................................           4,207            1,591            37.8%
----------------------------------------------------------------------------------------------------------------

    One of the steps the Commission is taking to insure effective, 
good-faith conciliations is the development of a Quality Control Plan 
that establishes criteria for evaluating the quality of investigations 
and conciliations. The proposed Quality Control Plan was developed by a 
staff work group with extensive public and internal input. It is 
currently under consideration by the Commission.
    Further, the Commission disagrees with the notion that it fails to 
consider employer defenses or insists upon excessive monetary demands 
in conciliation. The Commission is responsible for furthering the 
public interest in remedying discriminatory conduct and that is our 
primary consideration in framing our relief demands.
    EEOC has consistently taken steps to ensure effective and fair 
conciliations. The Office of the General Counsel and the Office of 
Field Programs routinely train employees on conciliations and issued 
field guidance on issues raised by recent case law concerning the 
Agency's conciliation obligations. As part of the litigation review, 
the Office of the General Counsel and the Commission, as appropriate, 
review the conciliation history of each case prior to authorizing 
litigation. If conciliation is insufficient legally or otherwise, the 
case is returned to the local office to conduct further conciliations 
or is disapproved for litigation.

    19. For years, the EEOC has litigated challenges to proper 
conciliation with varying degrees of success. Currently, the EEOC is 
taking two completely new litigation positions: (1) courts have no 
authority to review the EEOC's conciliation efforts; and (2) no 
information about conciliation can be put before a court unless the 
EEOC consents. These positions make the EEOC accountable to no party or 
court for its conciliation efforts. After almost 40 years of litigating 
the issue of conciliation, why is the EEOC now attempting to take that 
issue off the table? Please provide any and all documentation regarding 
this EEOC position.

    Response: With regard to judicial review of the Commission's 
efforts to obtain a conciliation agreement, the Commission recently has 
addressed the issue in several judicial districts where there are no 
controlling appellate decisions on whether Title VII authorizes 
judicial review of EEOC conciliations. The Commission has relied upon 
the plain language of Title VII, which allows the Commission to declare 
conciliation unsuccessful if it has been ``unable to secure from the 
respondent a conciliation agreement acceptable to the Commission.'' The 
Commission has argued in its cases that this language evidences an 
intent to commit conciliation, which the statute describes as an 
``informal'' method of achieving an agreement, to the discretion of the 
Commission and to make it non-reviewable by a court. 42 USC Sec.  
2000e-5(f)(1). Similarly, the plain language of 42 USC Sec.  2000e-5(b) 
states that nothing said or done in conciliation may be made public or 
used as evidence in a subsequent proceeding without the consent of the 
persons concerned. The Commission has argued that this statutory 
provision reflects congressional intent to keep the negotiations of the 
conciliation process, like those in any settlement process, generally 
confidential and unrestrained by the concern of subsequent judicial 
scrutiny.
    Significantly, some appellate courts have recognized that other 
parts of the EEOC's administrative process--namely its investigation 
and reasonable cause determination--are judicially unreviewable. See, 
e.g. EEOC v. Caterpillar, 409 F.3d 831 (7th Cir. 2005).
    The EEOC recognizes that it has a duty to attempt to conciliate 
before bringing a civil action and, moreover, it has an enormous 
incentive to conciliate effectively. Over the last five years, the EEOC 
has attempted conciliation in 4,000 to 6,000 cases a year. As stated in 
response to Question 18, many matters are successfully conciliated by 
the Commission each year, but when conciliation fails, the EEOC is able 
to pursue litigation in only a small fraction of those cases.

    20. Why do certain EEOC regional directors refuse to share 
information about what the EEOC learned during its investigation during 
the conciliation process even though they ultimately must do so in 
litigation if conciliation fails? Wouldn't sharing relevant information 
with the target of the investigation help resolve more cases and 
accomplish the goal of compliance with Title VII?

    Response: There are multiple opportunities to provide and receive 
information concerning a pending investigation. An investigation 
typically begins when an individual files a charge of employment 
discrimination alleging that the employer discriminated against him/her 
because of a basis prohibited by the statutes EEOC enforces. In EEOC's 
53 field offices, our staff sends a copy of the charge to the employer 
and then investigates the allegations contained in the charge, 
collecting documentary evidence and in some cases interviewing 
witnesses. The employer has an opportunity to submit a position 
statement in response to a charge and information may be shared with 
the employer at various points during the investigation if doing so 
facilitates the investigation. As the investigation ends, the EEOC 
investigator holds a Pre-Determination Interview (PDI) with the 
employer, in most cases, by phone. During the PDI, the investigator 
reviews with the employer or the employer's representative the evidence 
collected and also asks the employer whether it wishes to submit any 
additional evidence which might be relevant to EEOC's analysis of the 
evidence. If EEOC concludes based on the evidence that there is 
``reasonable cause to believe discrimination has occurred,'' the agency 
issues a Letter of Determination, which details the legal and factual 
bases for the ``reasonable cause'' finding.
    During the conciliation process, which begins only after a Letter 
of Determination has been issued, the charging party, the employer and 
EEOC discuss how the matter might be resolved. Conciliation focuses on 
two issues: (1) how the charging party can be made ``whole,'' i.e., 
what relief is necessary to place the charging party as near as 
possible in the situation he or she would have been if the 
discrimination had not occurred, and (2) what steps the employer should 
take to end the discrimination and prevent further discrimination. 
During conciliation, the central focus of the discussion is the 
appropriate relief to remedy the discrimination, rather than liability 
issues. EEOC staff share information with the employer during the Pre-
Determination Interview and during conciliation.

    21. Private lawyers who sue employers engage in a cost-benefit 
analysis to determine whether the cost and risk of going forward to 
trial is warranted by the potential financial outcome. As the steward 
of taxpayer dollars, do you believe the EEOC should do this too? What 
are the EEOC's procedures for resolving cases in a timely manner to 
reduce costs to employers, and ultimately the taxpayer?

    Response: Unlike private litigation, the potential financial 
outcome is not the only or even the primary benefit the Commission 
considers. Advancing the public interest in stopping and remedying 
discrimination is the most important consideration for EEOC as a law 
enforcement agency. In many cases, broad-based injunctive relief is an 
equally or more important benefit than the financial outcome. The pace 
of EEOC litigation, like all litigation in the federal courts, depends 
upon numerous factors, including factors beyond the litigants' control. 
However, the Commission generally makes early attempts to settle cases 
and continues to identify settlement opportunities throughout the 
litigation.

    22. The EEOC's Strategic Enforcement Plan states the EEOC has 
superior access to data, documents, and potential evidence of 
discrimination in recruitment and hiring, and therefore is better 
situated to eliminate barriers in recruitment and hiring than are 
individuals or private attorneys, who have difficulties obtaining such 
information. In determining whether to bring other systemic litigation, 
does the EEOC consider whether the individuals affected have the means 
and ability to seek redress through private civil litigation? In your 
view, should it do so?

    Response: Yes, in all litigation decisions the Commission considers 
whether the affected individuals have the resources to seek redress. As 
a federal law enforcement agency with extensive responsibilities and 
limited resources, however, the Commission also considers broader law 
enforcement interests. In systemic cases in particular, the Commission 
has a strong interest in securing broad-based injunctive relief to 
prevent future discrimination, and must consider whether private 
enforcement efforts would result in such relief or whether the 
Commission's participation in the litigation is necessary to ensure 
that adequate remedies, including targeted equitable relief, are 
obtained.

    23. In litigation, the EEOC claims an attorney client privilege 
with charging parties and claimants. But in practice the EEOC does not 
consider their wishes when deciding whether to settle a case or go to 
trial. Why should the EEOC be able to have it both ways unlike 
attorneys in other litigation?

    Response: As a law enforcement agency supported by tax dollars, the 
EEOC, unlike private attorneys, not only has an obligation to seek 
relief for aggrieved individuals, but must also ensure that the public 
interest is served when it conducts litigation. EEOC does consider the 
interests of charging parties in its litigation. Although EEOC 
determines the conditions under which it will resolve litigation it 
brings, the monetary relief it will accept in a settlement often 
depends on what the claimant(s) believes is satisfactory. But even 
where there is agreement among EEOC, claimants, and the defendant on 
the amount of monetary relief to be paid to the claimants, EEOC will 
not settle a case unless adequate injunctive and affirmative relief are 
also provided.
    EEOC files suits in its own name, and unless a charging party or 
other claimant intervenes, it is the only plaintiff. Like any other 
party, EEOC has sole discretion regarding the terms on which to resolve 
the claims it brings. Although EEOC usually seeks relief for one or 
more individuals in its suits, its primary purpose in bringing 
litigation is to further the public interest in eliminating employment 
discrimination. Charging parties are informed prior to the initiation 
of an EEOC suit that although EEOC will be seeking particular relief 
for them, its first obligation is to the public interest, and thus at 
some point in the litigation EEOC may act in a manner that the charging 
party believes is contrary to his or her interests. In Title VII, ADA, 
and GINA suits, charging parties also are informed of their right to 
intervene in EEOC's suit.
    EEOC does not claim an attorney-client relationship with claimants, 
and therefore there is no inconsistency in its refusal to settle a case 
even though monetary relief has been offered that is satisfactory to 
the claimants--a situation that rarely occurs. EEOC believes that in 
providing the agency with litigation authority in 1972 for the purpose 
of both ``implement[ing] the public interest [and] bring[ing] about 
more effective enforcement of private rights,'' General Telephone Co. 
of the Northwest, Inc. v. EEOC, 446 U.S. 318, 326 (1908), Congress 
could not have intended that claimants in EEOC suits would be denied 
the right to communicate confidentially with EEOC attorneys, putting 
them in a worse position than if they had filed separate actions, which 
Congress believed many could not afford to do. Thus, EEOC takes the 
position that although it does not have an attorney-client relationship 
with claimants, the elements of the attorney-client privilege apply to 
EEOC's interactions with claimants that are necessary for the agency to 
litigate its claims effectively. This means not only that 
communications between EEOC attorneys and claimants are protected from 
disclosure, but ex parte contacts by opposing attorneys with claimants 
are prohibited.

    24. The EEOC is required to establish or make available an 
Alternative Dispute Resolution (ADR) program that may be available for 
the pre-complaint process and the formal complaint process. The EEOC, 
however, may make a determination regarding whether to offer ADR in a 
particular case.
    a. Once a decision has been made by EEOC as to whether to offer 
ADR, are the parties involved notified of that decision prior to 
further administrative contact? If not, why not?
    b. What percentage of cases does the EEOC offer ADR in the pre-
complaint process?
    c. What percentage of cases does the EEOC offer ADR in the formal 
complaint process?
    d. Does the EEOC offer ADR during initial counseling of the 
complainant? If not, what informal methods of resolution does the EEOC 
counselor offer?
    e. How does the EEOC decide whether to offer ADR in a particular 
case?
    f. In deciding whether to offer ADR in a particular case, does the 
EEOC take into account a claimant's desire to mediate, litigate, or 
settle?

    Response: The procedures applicable to discrimination charges filed 
against private and state and local government employers differ from 
the procedures applicable to complaints filed against the federal 
government as an employer. This question appears to confuse the Federal 
complaint process (complaints against federal agencies) with the system 
EEOC uses to process complaints against private sector and state and 
local government employers. We are providing a general explanation as 
to how EEOC uses mediation to resolve disputes involving employees and 
employers in the private and public sectors.
    EEOC uses mediation extensively as part of its processing of 
charges filed against private and state and local government employers. 
Participation in mediation is strictly voluntary and at no cost to the 
parties. EEOC supplies the neutral who leads the discussion between the 
charging party and employer as they seek to come to a mutual agreement 
as to how to resolve the matter. Mediation is offered to approximately 
65 to 70 percent of all charging parties. Once the charging party 
accepts the offer, we then ask the employer whether they wish to 
mediate the dispute. As shown below, the majority of employers do not 
agree to mediation:
          2010 Respondent acceptance rate: 24.4%
          2011 Respondent acceptance rate: 25.6%
          2012 Respondent acceptance rate: 25.5%
    If the parties agree to mediate, the success rate is extremely 
high: more than 70 percent of the mediations result in resolution of 
the charge.
          2010 73.7%; 2011 73.4%; 2012 76.6%
    In addition, the agency encourages the employer community to enter 
into Universal Agreements to Mediate (UAMs). These agreements reflect 
employers' commitment to participate in mediation. At the conclusion of 
FY 2012, the agency had secured a cumulative multi-year total of 2,140 
UAMs, which is a 7.1 percent increase from FY 2011.
    For complaints against federal agencies as employers, complainants 
must first participate in counseling by an EEO counselor employed by 
the federal agency. The federal sector process delineates between a 
pre-complaint process (counseling), during which ADR is routinely 
offered, and the formal complaint process. Accordingly, we cannot 
provide specific answers to questions A-F.

    25. When a complainant wishes to file a class complaint after 
initial counseling, the complaint is sent to the relevant EEOC field or 
district office, where an EEOC administrative judge determines whether 
to accept or dismiss the class complaint. To be certified as a class, 
the administrative judge must decide the certification requirement of 
numerosity, commonality, typicality, and adequacy of representation are 
fulfilled.
    a. Does the EEOC separately communicate with each member of the 
proposed class in its determination of the class certification 
requirements?
    b. Does the EEOC collect documents and other non-testimonial 
evidence from each member of the proposed class in its determination of 
the class certification requirements?
    c. Is the employer notified during this process that a class 
complaint is under consideration? If not, why not?

    Response: The processing of class complaints of discrimination 
filed by Federal employees against Federal Agency employers is governed 
by 29 CFR 1614.204 and differs from the private sector administrative 
process.
    In the Federal sector process, a Federal employee files a complaint 
with the Agency that allegedly discriminated against him or her. A 
complainant may move for class certification at any point in the 
process when it becomes apparent that there are class implications to 
the claims raised in the individual complaint, but they must first seek 
counseling with an agency counselor. Once the class complaint is filed 
with the agency, the agency representative forwards the complaint and 
the counselors report to the Commission. The Commission assigns the 
complaint to an administrative judge or complaints examiner. (Sec.  
1614.204(c)).
    (a) The EEOC does not separately communicate with the individual 
class members or collect documents or other evidence directly from 
class members. The administrative judge communicates with the class 
agent, who acts for the class during the proceeding. (Sec.  
1614(a)(3)).
    (b) The administrative judge communicates with the class agent if 
more information is needed to make a decision regarding the 
prerequisites for certification of a class complaint. 29 CFR 
1614.204(d)(2). The administrative judge does not communicate directly 
with class members.
    (c) The administrative judge transmits the decision to accept or 
dismiss the class complaint to the Federal Agency and the class agent. 
The Agency then takes final action by issuing an order within 40 days 
of receiving the hearing record and the administrative judge's 
decision. (Sec. 1614.204(d)(7)). The final order notifies the class 
agent whether the Agency will implement the decision of the 
administrative judge. The Agency must use reasonable means to notify 
all class members of the acceptance of the complaint for further 
processing. (Sec. 1614.204(7)(e)).

    26. In fiscal year 2012, how many lawsuits did the EEOC win 
outright, through jury verdict or summary judgment?

    Response: In FY 2012, the Commission resolved 13 litigation cases 
through a favorable court order (judgment following a verdict, default 
judgment, or summary judgment for the Commission).

    27. The EEOC claims process has a costly effect on small 
businesses, especially when the case is litigated. What are the EEOC's 
internal procedures for resolving cases in a timely manner to reduce 
costs to employers, and ultimately consumers?

    Response: EEOC is sensitive to the concerns of small business and 
devotes significant resources to educating small businesses so that 
they do not run afoul of the EEO laws. In fact, the Small Business 
Administration Ombudsman has given EEOC a rating of ``A'' or ``A-'' for 
every year of this last decade for its efforts in responding to small 
business concerns. EEOC's administrative enforcement procedures provide 
small business with opportunities to resolve charges efficiently. EEOC 
offers mediation to both parties at the beginning of a charge. If both 
the employer and employee agree to mediation, over 75 percent of those 
charges are resolved successfully in the mediation process, and those 
resolutions occur in an average of 90 days. Likewise, employers are 
encouraged to settle charges prior to the completion of our 
investigation and to provide timely information to EEOC to rebut the 
allegations in a charge. Either can ensure efficient resolution of a 
charge.
    EEOC has created fact sheets, brochures and compliance guidance 
which are available through the EEOC website. Small businesses can 
obtain these materials free of charge through EEOC's publication 
center. Copies may be ordered through EEOC's website at http://www/
eeoc.gov/eeoc/publications/index.cfm or via a toll free telephone 
number (1-800-669-3362). EEOC has also developed fact sheets and 
publications specifically for small employers, such as ``Small 
Employers and Reasonable Accommodation'' and ``Questions and Answers 
for Small Employers on Employer Liability for Harassment by 
Supervisors.'' To help small employers understand newly enacted laws, 
the EEOC has posted ``Questions and Answers for Small Businesses: The 
Final Rule Implementing the ADA Amendments Act of 2008'' and 
``Questions and Answers for Small Businesses: EEOC Final Rule on Title 
II of the Genetic Information Nondiscrimination Act of 2008'' on its 
website. These documents also invite small employers to contact our 
Small Business Liaisons to obtain confidential assistance with 
compliance in specific workplace situations.
    Also, EEOC provides no-cost outreach and education programs as well 
as fee-based training and technical assistance to all employers. The 
training and materials we provide to small employers have been designed 
to give them the information they need to comply with the federal anti 
discrimination laws enforced by EEOC.
    In FY 2012, EEOC conducted 577 free outreach events directed toward 
small businesses, which reached about 63,000 small business 
representatives. An additional 4,654 small business representatives 
attended fee-based events. The most popular topics for small business 
audiences were Mediation, An Overview of EEOC, Sexual Harassment, 
Charge Processing, Title VII of the Civil Rights Act and the Americans 
with Disabilities Act.
    A Small Business Liaison is assigned to every EEOC office. Small 
Business Liaisons answer questions about the laws EEOC enforces, our 
mediation program and what to expect during an investigation. When a 
charge of discrimination is filed with EEOC against a small business, 
our field offices send a letter informing the employer of the 
availability of the Small Business Liaison. The letter invites small 
businesses to visit our website and informs small employers that any 
inquiry or request for assistance directed to the Small Business 
Liaison will not adversely affect the investigation of the charge.
    Mindful of the importance of continuing to improve our outreach to 
small businesses, EEOC's Small Business Task Force, led by Commissioner 
Constance S. Barker, was established at Chair Berrien's request in FY 
2011.

    28. As the Supreme Court noted in Clackamas Gastroenterology 
Assocs. v. Wells, the definition of ``employee'' in anti-discrimination 
laws--that it is ``an individual employed by an employer''--is 
``completely circular and explains nothing.'' Thus the determination as 
to whether partners in a particular partnership are ``employers'' or 
``employees'' is based on a multi-factored, facts-and-circumstances 
test. To the extent the statute needs clarification, do you believe 
litigation is the proper avenue through which to define partnerships?

    Response: Although the anti-discrimination statutes do not provide 
an extensive definition of the term employee, the Supreme Court has 
observed in several decisions that ``'when Congress has used the term 
`employee' without defining it, we have concluded that Congress 
intended to describe the conventional master-servant relationship as 
understood by common-law agency doctrine.''' Clackamas Gastroenterology 
Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting Nationwide 
Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992)). In Clackamas, 
the Court relied on EEOC Guidelines that ``discuss both the broad 
question of who is an `employee' and the narrower question of when 
partners, officers, members of boards of directors, and major 
shareholders qualify as employees.'' Id. at 448-49 (citing 2 Equal 
Employment Opportunity Commission, Compliance Manual Sec. Sec.  
605:0008--605:00010 (2000)).
    Like many federal employment and labor statutes, the statutes EEOC 
enforces broadly define employee. Court decisions and EEOC Guidelines 
provide a sufficiently clear framework for assessing the factually-
intensive question of whether particular individuals are employees 
covered by the anti-discrimination statutes.

    29. Today, most partnerships, particularly large partnerships, 
adopt internal management practices such as governing boards that allow 
them to delegate managerial functions while maintaining partner 
ownership of the firm, control over professional work product, and 
voice on issues critical to the partnership. In your view, does the 
delegation of partnership authority to internal governing boards 
transform the partners of a firm into employees rather than employers? 
What factors, in the EEOC's view, are most critical to determining 
whether and when such a delegation transforms partners into 
``employees?''

    Response: As the Commission has explained in its Compliance Manual, 
the determination of whether an individual is an employee, rather than 
an independent contractor, partner, or other non-employee, is fact-
specific. This determination depends on the actual working relationship 
between the individual and the partnership. The relevant question is 
whether the individual acts independently and participates in managing 
the organization (not an employee), or whether the individual is 
subject to the organization's control (an employee). The EEOC has 
identified six non-exhaustive factors relevant to making this 
determination:
     Whether the organization can hire or fire the individual 
or set the rules and regulations of the individual's work;
     Whether and, if so, to what extent the organization 
supervises the individual's work;
     Whether the individual reports to someone higher in the 
organization;
     Whether and, if so, to what extent the individual is able 
to influence the organization;
     Whether the parties intended that the individual be an 
employee, as expressed in written agreements or contracts; and
     Whether the individual shares in the profits, losses, and 
liabilities of the organization.
    In Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 
449-50 (2003), the Supreme Court approved of the EEOC's emphasis on 
``the common-law touchstone of control'' when determining whether an 
individual with the title of partner is an employee under the EEO laws. 
The Court noted that whether shareholder-directors in that case were 
employees could not be determined by asking if the director-shareholder 
position ``is the functional equivalent of a partner'' because ``there 
are partnerships that include hundreds of members, some of whom may 
well qualify as `employees' because control is concentrated in a small 
number of managing partners.'' Id. at 445-46. The Court adopted the 
six-factor control test from EEOC's guidance, emphasizing that the 
coverage determination depends on ``all the incidents of the 
relationship * * * with no one factor being decisive.'' Id at 451.
    Thus, if a determination were made in a particular case that 
individuals holding the title of ``partner'' are actually employees, it 
would be a factual determination guided by existing law.

    30. In the last decade the EEOC brought a highly publicized lawsuit 
against the law firm Sidley Austin, alleging its partners were 
employees and its retirement policy for partners therefore violated the 
Age Discrimination in Employment Act. What, in the EEOC's view, were 
the most significant characteristics of Sidley's partnership structure 
that led the EEOC to conclude that its partners were ``employees?''

    Response: In its brief to the U.S. Court of Appeals for the Seventh 
Circuit, the EEOC looked at a number of factors that led it to conclude 
that at least some of Sidley's partners could properly be considered 
employees. In particular, the Commission's brief discussed 
remuneration, noting that the extent to which partners share in the 
firm's profits varies tremendously, and many received most of their pay 
in a form that resembled salary. The brief discussed ownership, and 
noted that the amount of each partner's required capital contribution 
varied considerably from individual to individual. Finally, the 
Commission's brief discussed management. Sidley was governed by a 36-
member executive committee; members of that committee owned almost 80 
percent of the firm. The executive committee, and its 8-member 
management committee, made all of the firm's critical decisions, 
including partnership admission, partner expulsion, pay/ownership 
allocations, practice group head appointments, opening and closing of 
offices, and who will join the executive committee.

    31. Is the EEOC currently pursuing directed investigations of 
mutually agreed upon retirement policies for partners that were not 
commenced following a charge filed by a partner? If so, what factors 
did the EEOC consider in deciding to prioritize those investigations 
over the tens of thousands of backlogged cases involving employee 
complaints?

    Response: There are currently two pending directed investigations 
of alleged violations of the Age Discrimination in Employment Act 
(ADEA) based upon policies which mandate retirement at a specified age 
for person employed in various positions, including as partners.

    32. The EEOC's Strategic Enforcement Plan lists six enforcement 
priorities. Do you intend to make mutually agreed upon retirement 
policies in legal and accounting professional partnerships a focus of 
the EEOC's enforcement efforts? If so, which of the six enforcement 
priorities identified in the Strategic Enforcement Plan make mutually 
agreed upon retirement policies for partners an EEOC priority?

    Response: Retirement policies are not a priority issue under the 
EEOC's Strategic Enforcement Plan. Whether individuals are employees 
under the federal civil rights laws is an important issue of access to 
justice that is a priority (#5) for the agency under the Strategic 
Enforcement Plan.
    While the establishment of priorities in the SEP is designed to 
provide focused attention and resources in order to have greater 
impact, the SEP does not preclude the agency from addressing other 
issues of discrimination.
   questions regarding the eeoc's interaction with the department of 
     labor's office of federal contract compliance programs (ofccp)

    34. Did the EEOC comment on the OFCCP's rescission of the agency's 
2006 Compensation Standards and the issuance of OFCCP Directive 307? 
Why not? The EEOC agreed with the 2006 Compensation Standards. Has the 
EEOC's position changed?

    Response: The EEOC reviewed OFCCP's notice of proposed rescission 
of the 2006 compensation standards in January 2011 after it was 
published in the Federal Register; reviewed a draft notice of final 
rescission in January 2012 pursuant to EO 12067; and reviewed draft 
notices of final rescission in November and December of 2012 as part of 
the Office of Management and Budget's EO 12866 interagency review 
process. The EEOC commented on the notice of rescission in November 
2012. The EEOC did not review Directive 307 and therefore did not 
comment on it.
    The substance of the EEOC's interagency comments and conversations 
is protected from disclosure by the deliberative process privilege.
    The EEOC's position in 2006 that the OFCCP's compensation standards 
were consistent with Title VII has not changed. However, the EEOC also 
does not disagree with the OFCCP's decision to rescind the standards 
and to adopt new standards that are also consistent with Title VII and 
that give the agency more flexibility to enforce EO 11246 in a manner 
consistent with Title VII.

    35. As you know, Executive Order (EO) 12067 requires the EEOC to 
ensure coordination of federal equal employment opportunity enforcement 
efforts. In particular, EO 12067 requires the EEOC ``to develop uniform 
standards, guidelines, and policies defining the nature of employment 
discrimination'' and ``develop uniform standards and procedures for 
investigations and compliance reviews.'' Did the EEOC review OFCCP's 
notice of rescission of the 2006 Compensation Standards and the 
issuance of Directive 307 under EO 12067? Did the EEOC provide any 
feedback to OFCCP about the approach contained in Directive 307? Please 
provide any and all correspondence between the EEOC and OFCCP on this 
subject.

    Response: As stated in the answer to Question 34 above, EEOC did 
review OFCCP's notice of rescission and provided feedback to OFCCP. The 
EEOC did not review Directive 307 and therefore did not comment on it. 
Attached are copies of nonprivileged correspondence between OFCCP and 
EEOC on this subject.

    36. Under the EEOC's Compensation Manual, published in 2000, the 
EEOC instructs investigators to ``determine the similarity of the jobs 
by ascertaining whether the jobs generally involve similar tasks, 
require similar skill, effort, and responsibility, working conditions, 
and are similarly complex or difficult.'' The EEOC's Compensation 
Manual continues, ``[t]he actual content of the jobs must be similar 
enough that one would expect those who hold the jobs to be paid at the 
same rate or level.'' Does the EEOC interpret OFCCP Directive 307 to be 
altogether consistent with these instructions?

    Response: There is no conflict between the EEOC Compliance Manual 
language quoted above, which appears in the Guidance section about 
disparate treatment, and the relevant language in OFCCP Directive 307. 
In particular, Directive 307 states at pp. 12-13: ``For purposes of 
evaluating compensation differences, employees are similarly situated 
where it is reasonable to expect they should be receiving equivalent 
compensation absent discrimination. Relevant factors in determining 
similarity may include tasks performed, skills, effort, level of 
responsibility, working conditions, job difficulty, minimum 
qualifications, and other objective factors.'' In addition, the EEOC's 
Compliance Manual's disparate treatment subsection also states that the 
method suggested for conducting a comparative compensation analysis is 
not intended as an exclusive method, and subsequent subsections detail 
other methods for determining whether compensation discrimination or 
discrimination in practices that affect compensation have occurred--
topics that are also addressed in Directive 307.

    37. As you know, in August, 2012, the National Research Council of 
the National Academies of Sciences (NAS) released a report entitled, 
``Collecting Compensation Data from Employers.'' This report was 
commissioned by the EEOC. The report contained two primary 
recommendations:
    Recommendation 1: In conjunction with the Office of Federal 
Contract Compliance Programs of the U.S. Department of Labor and the 
Civil Rights Division of the U.S. Department of Justice, the U.S. Equal 
Employment Opportunity Commission should prepare a comprehensive plan 
for use of earnings data before initiating any data collection.
    Recommendation 2: After the U.S. Equal Employment Opportunity 
Commission, the Office of Federal Contract Compliance Programs, and the 
U.S. Department of Justice complete the comprehensive plan for use of 
earnings data, the agencies should initiate a pilot study to test the 
collection instrument and the plan for the use of the data. The pilot 
study should be conducted by an independent contractor charged with 
measuring the resulting data quality, fitness for use in the 
comprehensive plan, cost and respondent burden.
    a. What is the status of the EEOC's implementation of these 
recommendations? Has the EEOC and OFCCP developed a comprehensive plan? 
If so, please provide a copy of the comprehensive plan. If not, why 
not, and when will it be completed?
    b. Has an independent contractor been selected for a pilot project?
    c. How will the EEOC ensure coordination with OFCCP with regard to 
these recommendations?
    d. Has the EEOC had any discussions with OFCCP about the comments 
OFCCP received in response to the Advance Notice of Proposed Rulemaking 
on a Comprehensive Data Collection Tool, 76 Fed. Reg. 49398 (Aug. 10, 
2011)?
    e. Will EEOC commit to using its authority under EO 12067 to 
require OFCCP to adhere to the NAS recommendations before issuing any 
proposed regulations on collecting compensation data?

    Response: a. EEOC is thoroughly considering the NAS Study 
recommendations and will take them into account before proceeding with 
new collections of compensation data. As part of the review and 
consideration of the NAS Study recommendations, EEOC staff has 
discussed the recommendations with representatives of the U.S.D.O.J. 
Civil Rights Division and OFCCP, as well as agency stakeholders such as 
the National Industry Liaison Group.
    b. EEOC has neither sought nor selected an independent contractor 
for a pilot project.
    c. See responses to a and b, above.
    d. EEOC has reviewed comments received by OFCCP in response to its 
ANPRM. We have not had formal discussions with OFCCP about those 
comments.
    e. Pursuant to E.O. 12067, EEOC will, as it has to date, 
communicate with OFCCP and continue to work closely with the OFCCP 
concerning the collection of compensation data.
                            rep. hudson qfrs
    1. There is a case in which an employee filed a gender 
discrimination case against her employer. When the employer tried to 
meet with the EEOC representative and the employee for consultation, 
the employer instead found the EEOC representative acting as a 
prosecuting attorney for the employee instead of a negotiator between 
the parties. The employer was not notified prior to the meeting of the 
terms of these discussions, and whether or not the EEOC representative 
would be used in a mediating role or prosecuting role, leaving the 
impression these meetings were informal negotiations.
    a. To what extent does the EEOC give a notice of the terms to all 
parties involved prior to in person consultations?
    b. In other cases is it protocol for an EEOC representative to play 
negotiator/mediator and prosecutor during an investigation?
    c. If employers are not notified of the status of the consultation 
meeting, what are their administrative rights to have counsel present 
and/or delay the meeting until counsel is present?

    Response: a. It is unclear from the questions at what stage of the 
EEOC investigation the consultation meeting occurred. Generally, 
employers and employees may meet in a mediation, which is a 
confidential process separate from the investigation. (See answer 25). 
Parties to an EEOC mediation generally do not, in advance of the 
mediation session, share positions or terms to which they would agree. 
There is considerable sharing of terms of settlement during the 
mediation.
    They may also meet during conciliation, which only occurs after the 
investigation if the agency has made a determination that there is 
reasonable cause to believe discrimination has occurred. (See answer 
20.) In conciliation, EEOC invites both parties to meet, either in 
person or over the phone. EEOC generally conducts conciliation in one 
of two ways, i.e., the EEOC office shares the details of the proposed 
conciliation terms in advance in a letter, or plans to share the terms 
during the conciliation conference so they can be explained and 
questions answered.
    b. During an investigation of a charge, the EEOC acts as a neutral 
fact-finder and gathers and evaluates evidence. The investigator may 
also seek to resolve the charge through a settlement agreement prior to 
a determination on the merits of the charge. At the end of the 
investigation, the EEOC makes a determination on whether the evidence 
establishes that there is ``reasonable cause'' to believe that 
discrimination occurred. If the evidence establishes a violation, the 
investigator now shifts roles. As required by the statutory 
conciliation process, the investigator must represent the EEOC's 
interest in obtaining an appropriate remedy for the discrimination 
found.
    c. Employers are notified of the status and scheduling of a 
conciliation conference and have the right to have counsel present. 
Scheduling of the conference is done at a mutually agreeable time. The 
EEOC's Compliance Manual provides that conciliation with respondents 
should generally occur face-to-face, or by phone if this cannot be 
arranged or if the proposed agreement is straightforward and brief. It 
also provides that whenever possible, conciliation should occur with 
respondent officials who have authority to enter into an agreement.

    2. As you know, the EEOC's Chicago District Office is currently 
investigating PricewaterhouseCoopers regarding their partnership 
agreement and mandatory retirement age. The six-factor partnership test 
adopted by the Supreme Court in Clackamas would presume the partners at 
PricewaterhouseCoopers are not subject to the ADEA.
    a. Should the EEOC decide to pursue litigation of this case, do you 
believe it would involve a major expenditure of resources or have a 
high likelihood for public controversy?
    b. Given the Strategic Enforcement Plan's objective of retaining 
the decision to commence litigation over cases that (1) will involve a 
major expenditure of resources; (2) present issues in a developing area 
of law; or (3) cases with a high likelihood for public controversy, 
would you expect the commission, and not the general counsel, to vote 
on whether to commence litigation against PricewaterhouseCoopers?

    Response: The Supreme Court's decision in Clackamas 
Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 446 (2003) 
held that ``there are partnerships that include hundreds of members, 
some of whom may well qualify as `employees.' '' The Court endorsed the 
multi-factor, fact-based approach set forth in EEOC's Compliance Manual 
as the correct approach to determining whether a person impacted by a 
mandatory retirement policy should or should not be considered an 
employee. See also Responses 28-29 above.
    The General Counsel sought Commission approval for litigation 
against PriceWaterhouseCoopers based upon the findings of the Chicago 
District Office's direct investigation of the firm's mandatory 
retirement policy for partners. The Commission voted to disapprove the 
recommended litigation.
                                 ______
                                 
    [Addendum to EEOC's response to questions submitted 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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    [Whereupon, at 11:10 a.m., the subcommittee was adjourned.]

                                 
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