[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE REGULATORY AND ENFORCEMENT PRIORITIES OF
THE EEOC: EXAMINING THE
CONCERNS OF STAKEHOLDERS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 10, 2014
__________
Serial No. 113-59
__________
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 C. ``Bobby'' Scott,
Joe Wilson, South Carolina Virginia
Virginia Foxx, North Carolina Ruben Hinojosa, Texas
Tom Price, Georgia Carolyn McCarthy, New York
Kenny Marchant, Texas John F. Tierney, Massachusetts
Duncan Hunter, California Rush Holt, New Jersey
David P. Roe, Tennessee Susan A. Davis, California
Glenn Thompson, Pennsylvania Raul M. Grijalva, Arizona
Tim Walberg, Michigan Timothy H. Bishop, New York
Matt Salmon, Arizona David Loebsack, Iowa
Brett Guthrie, Kentucky Joe Courtney, Connecticut
Scott DesJarlais, Tennessee Marcia L. Fudge, Ohio
Todd Rokita, Indiana Jared Polis, Colorado
Larry Bucshon, Indiana Gregorio Kilili Camacho Sablan,
Trey Gowdy, South Carolina Northern Mariana Islands
Lou Barletta, Pennsylvania Frederica S. Wilson, Florida
Joseph J. Heck, Nevada Suzanne Bonamici, Oregon
Mike Kelly, Pennsylvania Mark Pocan, Wisconsin
Susan W. Brooks, Indiana Mark Takano, California
Richard Hudson, North Carolina
Luke Messer, Indiana
Bradley Byrne, Alabama
Juliane Sullivan, Staff Director
Megan O'Reilly, 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 Raul M. Grijalva, Arizona
Scott DesJarlais, Tennessee Timothy H. Bishop, New York
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Larry Bucshon, Indiana Mark Pocan, Wisconsin
Richard Hudson, North Carolina Mark Takano, California
C O N T E N T S
----------
Page
Hearing held on June 10, 2014.................................... 1
Statement of Members:
Courtney, Hon. Joe, Ranking member, Subcommittee on Workforce
Protections................................................ 4
Prepared statement of.................................... 5
Walberg, Hon. Tim, Chairman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Statement of Witnesses:
Bone, Lucia, Partner, Founder, The Sue Weaver C.A.U.S.E.,
Flower Mound, TX........................................... 73
Prepared statement of.................................... 75
Ifill, Sherrilyn, President and Director-Counsel, NAACP Legal
Defense and Educational Fund, New York, NY................. 62
Prepared statement of.................................... 64
McCracken, Todd, President, Normal Small Business
Association, Washington, DC................................ 54
Prepared statement of.................................... 56
Olson, Camille, Partner, Seyfarth Shaw LLP, Chicago, IL...... 7
Prepared statement of.................................... 10
Additional Submissions:
Mr. Courtney:
Prepared statement of Equal Employment Opportunity
Commission............................................. 82
EEOC Sues Less, but Tactics Draw Flak.................... 217
LAW360 'EEOC Overreach' Analysis Distorted The Record.... 229
Ms Olson:
Prepared Statement of.................................... 236
Chairman Walberg:
Letter dated June 13, 2014, from Fishman, Nick, Executive
Vice President,Chief Marketing Officer, Employee Screen
IQ..................................................... 257
Letter dated June 24, 2014, from Gootkind, Judith, A.,
Chair, National Association of Professional Background
Screeners.............................................. 259
Letter dated June 18, 2014, from Lipnic, Victoria, A.,
Commissioner, U.S. Equal Employment Opportunity
Commissioner........................................... 265
Letter dated June 24, 2014, from Nichols, R., Leslie,
National Vice President, Child and Club Safety, Boys &
Girls Clubs of America................................. 271
THE REGULATORY AND
ENFORCEMENT PRIORITIES OF
THE EEOC: EXAMINING THE
CONCERNS OF STAKEHOLDERS
----------
Tuesday, June 10, 2014
House of Representatives,
Subcommittee on Workforce Protections,
Committee on Education and the Workforce,
Washington, D.C.
----------
The subcommittee met, pursuant to call, at 10:01 a.m., in
Room 2175, Rayburn House Office Building, Hon. Tim Walberg
[chairman of the subcommittee] presiding.
Present: Representatives Walberg, Kline, Rokita, Hudson,
Courtney, and Takano.
Staff present: Molly Conway, Professional Staff Member; Ed
Gilroy, Director of Workforce Policy; Christie Herman,
Professional Staff Member; Benjamin Hoog, Senior Legislative
Assistant; Marvin Kaplan, Workforce Policy Counsel; Nancy
Locke, Chief Clerk; James Martin, Professional Staff Member;
Zachary McHenry, Senior Staff Assistant; Daniel Murner, Press
Assistant; Brian Newell, Communications Director; Krisann
Pearce, General Counsel; Alissa Strawcutter, Deputy Clerk;
Loren Sweatt, Senior Policy Advisor; Tylease Alli, Minority
Clerk/Intern and Fellow Coordinator; Melissa Greenberg,
Minority Labor Policy Associate; Eunice Ikene, Minority Labor
Policy Associate; Brian Kennedy, Minority General Counsel;
Leticia Mederos, Minority Director of Labor Policy; Richard
Miller, Minority Senior Labor Policy Advisor; Megan O'Reilly,
Minority Staff Director; and Michael Zola, Minority Deputy
Staff Director.
Chairman Walberg. A quorum being present, the subcommittee
will come to order. Good morning. I would like to welcome our
guests and thank our witnesses for joining us today. We
appreciate the time you have spared to be with us this morning.
Today's hearing is part of our continued oversight of the Equal
Employment Opportunity Commission.
Last year, we convened a hearing to broadly examine the
Commission's regulatory and enforcement agenda. Members raised
concerns with a number of EEOC policies that many believe are
not in the best interest of workers and employers. For example,
under President Obama's watch, EEOC has made it more difficult
for employers to ensure the safety of their customers and
clients. So-called guidance issued in 2012 severely restricts
employer use of criminal background checks during the hiring
process.
All Americans expect employers to hire a safe and
responsible workforce, especially when workers are employed in
areas that require the public's trust, such as when they enter
private homes, transport children to school, or care for aging
relatives. Later, we will learn in disturbing detail why, in
certain occupations, the background check of prospective
employees is critical to public safety.
Ms. Bone, we are grateful that you have joined us this
morning to share your family's personal story. The death of
your sister, Sue, could have been prevented. We cannot fathom
the pain you and your family are forced to bear. There isn't a
member in Congress who wouldn't be outraged if his or her loved
ones suffered the same fate as your sister. But because of EEOC
overreach, there are now policies in place making it harder for
employers to do what is right. Some employers will simply avoid
the bureaucratic hassle of conducting background checks or risk
of being second-guessed by the federal government, which means
more Americans might be put in harm's way.
Adding insult to injury, EEOC denied the public an
opportunity to comment on its radical change in policy. And we
understand the commission is considering further guidance that
would hinder employers' ability to look at the credit histories
of prospective employees.
It is time for EEOC to stop this nonsense, withdraw its
flawed guidance, and ensure employers use the tools available
to protect the men and women they serve. Unfortunately,
misguided regulatory schemes weren't the only concerns raised
at our last EEOC hearing. We also discussed the commission's
failed approach to enforcement.
Instead of commission members working together to resolve
claims of discrimination raised by American workers, we have an
unaccountable general counsel pursuing cases of systemic
discrimination without any allegation of wrongdoing. The
results have been disappointing, to say the least. The 6th
Circuit Court of Appeals recently wrote, and I quote--``EEOC
brought this case on the basis of a homemade methodology
crafted by a witness with no particular expertise to craft it,
administered by persons with no particular expertise to
administer it, tested by no one, and accepted only by the
witness himself.''
Another federal court described an EEOC case as, and I
quote again--``theory in search of facts to support it.'' Other
courts have found EEOC legal complaints as frivolous,
unreasonable, and untenable. Last year, we raised these and
other concerns to Commission Chair Berrien and urged her to
change course. Unfortunately, our concerns continue to be
ignored. I am hopeful that through today's hearing and our
oversight of EEOC, the commission will adopt a more responsible
approach that better serves the needs of workers and employers.
We are here today because we want to ensure these vital
laws and the protections they provide American workers are
properly enforced. Every American deserves a fair shot at
finding a job, regardless of age, disability, sex, religion, or
race. When they are denied that fair shot, workers rely upon
EEOC to make it right and hold bad actors accountable. That is
the mission of this important agency, and it is our
responsibility to make sure EEOC is getting the job done.
Again, I want to thank our witnesses for joining us and for
contributing to this important effort this morning.
With that, I will now yield to senior Democrat of the
committee, my colleague, Representative Joe Courtney, for his
opening remarks.
[The statement of Chairman Walberg follows:]
Prepared Statement of Hon. Tim Walberg, Chairman, Subcommittee on
Workforce Protections
Good morning. I would like to welcome our guests and thank our
witnesses for joining us. We appreciate the time you've spared to be
with us this morning.
Today's hearing is part of our continued oversight of the Equal
Employment Opportunity Commission. Last year we convened a hearing to
broadly examine the commission's regulatory and enforcement agenda.
Members raised concerns with a number of EEOC policies that many
believe are not in the best interest of workers and employers.
For example, under President Obama's watch, EEOC has made it more
difficult for employers to ensure the safety of their customers and
clients. So-called guidance issued in 2012 severely restricts employer
use of criminal background checks during the hiring process. All
Americans expect employers to hire a safe and responsible workforce,
especially when workers are employed in areas that require the public's
trust, such as when they enter private homes, transport children to
school, or care for aging relatives.
Later we will learn in disturbing detail why in certain occupations
a background check of prospective employees is critical to public
safety. Mrs. Bone, we are grateful you've joined us this morning to
share your family's personal story. The death of your sister Sue could
have been prevented. We cannot fathom the pain you and your family are
forced to bear.
There isn't a member in Congress who wouldn't be outraged if his or
her loved one suffered the same fate as your sister. But because of
EEOC overreach, there are now policies in place making it harder for
employers to do what is right. Some employers will simply avoid the
bureaucratic hassle of conducting background checks or the risk of
being second-guessed by the federal government, which means more
Americans might be put in harm's way.
Adding insult to injury, EEOC denied the public an opportunity to
comment on its radical change in policy. And we understand the
commission is considering further guidance that would hinder employers'
ability to look at the credit histories of prospective employees. It is
time for EEOC to stop this nonsense, withdraw its flawed guidance, and
ensure employers use the tools available to protect the men and women
they serve.
Unfortunately, misguided regulatory schemes weren't the only
concerns raised at our last EEOC hearing. We also discussed the
commission's failed approach to enforcement. Instead of commission
members working together to resolve claims of discrimination raised by
American workers, we have an unaccountable general counsel pursuing
cases of systemic discrimination without any allegation of wrongdoing.
The results have been disappointing to say the least.
The Sixth Circuit Court of Appeals recently wrote, ``EEOC brought
this case on the basis of a homemade methodology, crafted by a witness
with no particular expertise to craft it, administered by persons with
no particular expertise to administer it, tested by no one, and
accepted only by the witness himself.'' Another federal court described
an EEOC case as a ``theory in search of facts to support it.'' Other
courts have found EEOC legal complaints as frivolous, unreasonable, and
untenable.
Last year, we raised these and other concerns to Commission Chair
Berrien and urged her to change course. Unfortunately, our concerns
continue to be ignored. I am hopeful that through today's hearing and
our oversight of EEOC, the commission will adopt a more responsible
approach that better serves the needs of workers and employers.
We are here today because we want to ensure these vital laws - and
the protections they provide American workers - are properly enforced.
Every American deserves a fair shot at finding a job - regardless of
age, disability, sex, religion, or race. When they are denied that fair
shot, workers rely upon EEOC to make it right and hold bad actors
accountable. That is the mission of this important agency, and it's our
responsibility to make sure EEOC is getting the job done.
Again, I want to thank our witnesses for joining us and for
contributing to this important effort. With that, I will now yield to
the senior Democrat of the subcommittee, my colleague Representative
Joe Courtney, for his opening remarks.
______
Mr. Courtney. Thank you, Mr. Chairman, for the opportunity
to address the committee. And, again, I want to begin by
thanking the witnesses for being here this morning.
Particularly, again, as the Chairman, Ms. Bone, for your
amazing courage to take a horrible tragedy and really try and
turn it into a positive outcome in terms of educating the
public and, certainly, people who are close to the workplace.
So thank you for being here today.
I have to say, though, I am a little disappointed, Mr.
Chairman, that, you know, in the name of oversight we are
holding a hearing today, you know--and we heard sort of some of
the opening flavor of this hearing, where the majority, for
some reason, didn't feel that it was appropriate to invite the
agency itself to come here and actually directly address the
questions that are being raised this morning. It is true we had
a hearing last year with the chairwoman who, again, had pretty
much taken over just recently.
If there are concerns that members want to raise I totally
support the fact that we should have these types of questions
exchanged. But the problem is, is if you don't have the agency
here to answer them, then I really am very puzzled at why we
think this is somehow going to benefit the process. We have
about 50 days left in this Congress which, again, is going to
go down in history as one of the least productive congresses
ever. The Do Nothing Congress of Harry Truman passed over 400
pieces of legislation. We barely got over the 100 mark in terms
of measures that are going to get passed.
And, again, I have no problem with spending the time here
this morning. But frankly, there are other issues which this
subcommittee should be taking up that directly fall under our
jurisdiction. Such as the fact that we have not raised the
minimum wage since 2007. We have over 190 House members that
have signed a discharge petition to just simply ask for a vote
in the House. We have not even had a hearing on this issue in
this subcommittee.
So yes, let's hold this hearing today. Let's flush out all
the issues. But let's talk about other issues that members--
your colleagues that are elected to represent their
constituents--have been desperately pleading to have
consideration. I see Ms. Olson here today from the U.S. Chamber
of Commerce. A week ago last Friday I addressed the eastern
Connecticut Chamber of Commerce, which is an affiliate of the
Chamber. We have large companies like General Dynamics and
Pfizer, small startups that are part of it. The number one
workforce issue that they asked me is why has the House not
taken up the bipartisan immigration reform issue.
Why are we still holding back the U.S. economy, which CBO
has told us will grow if we pass the bipartisan Senate bill,
cut the deficit, and solve tremendous workforce shortages in
areas of hospitality, agriculture, in terms of some high-tech
sectors of our economy; the pharmaceutical industry, which is,
you know, very prevalent in the state of Connecticut. Again,
192 members of the House have signed a discharge petition to
bring up that bill, and we have not even had a hearing on the
House in the last year-and-a-half; not one on that issue.
So yes, let's hold this hearing today. Let's talk about
these issues. But the fact of the matter is, is this majority
has cut off consideration of issues that directly affect
working people in working families in terms of raising their
wages for the first time in 7 years; helping employers deal
with workforce shortages that the Immigration Reform Bill would
directly address. And, again, the Chamber has been very strong
in terms of saying that we should do this for the benefit of
your members and for the country as a whole.
And as long as we are talking about background checks, I
come from Connecticut, okay? Which is where the Sandy Hook
shooting took place a year ago last December. We have a
background check system that law enforcement has told us is
broken in terms of people getting access to firearms who do
not--who should not get that access because they do have felony
records, they do have mental illness, they have conditions
which we should be strengthening and systems that we should be
strengthening to make sure that yes, we should have customers
safe but we also should have the public safe.
We should have schoolchildren safe in this country. And,
again, we have not had a single hearing in this Congress to
deal with background checks for an issue which 80 percent of
the public supports. So yes, let's have this hearing today and
we will flush out these issues and talk about it. But, again, I
would plead with the chairman that we should a) on this
committee, take up issues that your colleagues have asked for
consideration in terms of minimum wage.
That your leadership should take up immigration reform now
so that we can help grow this economy.
And for the sake of all victims of violence in this country
we should strengthen background checks for the purchase and
acquisition and ownership of dangerous firearms.
I yield back the balance of my time.
[The statement of Mr. Courtney follows:]
Prepared Statement of Hon. Joe Courtney, Senior Democratic Member,
Subcommittee on Workforce Protections
Good morning. I want to thank Chairman Walberg for calling today's
hearing to examine the important work of the Equal Employment
Opportunity Commission.
I also want to thank the witnesses for being here this morning to
testify on civil rights and the efforts of the EEOC.
As we go through the day's proceedings, I'd be remiss if I didn't
note that we just celebrated the 50th Anniversary of the Civil Rights
Act of 1964, which ushered in an era of significant opportunity and
change.
The following year, 1965, the EEOC opened its doors, charged with
the mission of ending employment discrimination through enforcement of
the nation's equal employment opportunity laws.
The work of the EEOC remains as critical today as it was five
decades ago, particularly when we look to the challenges facing the
unemployed in our nation.
The economy has improved drastically since the depths of the
recession. Last month, the overall unemployment rate stabilized at 6.3
percent. While this is still unacceptably high, the unemployment rate
for minorities is even more appalling: 11.5 percent of African
Americans and 7.7 percent of Hispanics in this country were out of work
as of May.
And we know, as labor economists and experts point to,
discrimination remains one of factors for the disparity.
For those who are skeptical about the mission of the EEOC, I would
remind them that the EEOC's work is essential and responds to a serious
problem in our country: workplace discrimination.
Every worker in this country--whether a job applicant or employee--
has the right to be treated fairly in the workplace and judged solely
upon his or her ability to do the job.
The foundation of our civil rights laws is to ensure that all
Americans have the opportunity to participate in and contribute to
society, while being able to provide for themselves and their families.
Unfortunately, far too often workers are not hired, paid less or
fired from their jobs because they are female, or pregnant, or African
American, or have a disability.
The EEOC plays a vital role in ensuring fairness and equal
opportunity in the workplace. It enforces some of the country's most
important federal laws, ones that prohibit discrimination 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 93,000 new charges of
discrimination were filed with the EEOC last year. Among those, the
EEOC received:
* over 67,000 Title VII charges, alleging some forms of
discrimination based on race, color, sex, religion, or national origin.
3,146 of those charges alleged color-based discrimination;
* over 300 Genetic Information Nondiscrimination Act (GINA)
charges; and
* 1,019 Equal Pay Act charges;
And to be clear, the EEOC works diligently to settle many of these
cases before they reach litigation. As I understand, litigation is
always viewed as a last resort and is brought in less than 1% of
charges with merit.
But litigation is sometimes necessary to ensuring compliance with
our anti-discrimination laws, and to stopping and discouraging unlawful
discriminatory practices.
Congress also has a responsibility to ensure that American workers,
should they become victims of workplace discrimination, have means of
seeking justice.
Here we are, six months away from the end of the 113th Congress,
and we have yet to act on any meaningful update to our civil rights
laws.
The fact is that, despite the progress we have made in the last 50
years, 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 and enjoys support from
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
immediate consideration.
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 other civil rights violations in the workplace.
These efforts should be the topic of this hearing. We should be
seeking opportunities to together to strengthen and update this
nation's civil rights laws.
Thank you Mr. Chairman. And thanks again to our witnesses for your
participation.
______
Chairman Walberg. I thank the gentleman. And your points
are duly noted. I would just add that this is a process. And as
I said in my opening statements, we are still waiting for some
of the action that we requested when we had the EEOC in front
of us that still have not been dealt with.
As far as a do-nothing Congress, I would hesitate to use
that term when, in fact, in a bipartisan way this House has
done an awful lot of work, hundreds of bills sent to the
Senate, many of which are bipartisan in effort and in vote.
So if we would amend that to be a bipartisan--or a do-
nothing Senate, I would approve of it even more so. But that
will be a debate for another day. 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 material referenced during the hearing to be
submitted in the official hearing record.
And now I have the privilege of introducing our panel that
have taken their time and submitted to our request to come
here. And we appreciate that. First, Ms. Camille Olson is a
partner at Seyfarth Shaw in Chicago, Illinois, my hometown, as
we discussed earlier. She will be testifying on behalf of the
U.S. Chamber of Commerce. Welcome.
Mr. Todd McCracken is the president of the National Small
Business Association in Washington, D.C. Thanks for being here.
Ms. Sherrilyn Ifill--did I get that right--Ifill is the
president and director of the NAACP legal defense and
educational fund in New York, New York. Welcome.
And finally, Ms. Lucia Bone is the founder of the Sue
Weaver C.A.U.S.E. in Flower Mound, Texas. Welcome.
Before I recognize each of you to provide your testimony,
most of you are aware that you will have a 5-minute time period
to give your testimony. Your full testimony, written, is
recorded and will be for our use. When you begin the light be
at the green. When you see it turn yellow, that means you have
approximately 1 minute left to conclude your comments. And I
would ask you to try to keep within that 5-minute time period.
The same will be for our committee, when we have the
opportunity to question you. We will have 5 minutes, as well.
So now let me recognize our first witness, Ms. Olson?
Microphone, is that on?
STATEMENT OF MS. CAMILLE OLSON, PARTNER, SEYFARTH SHAW LLP,
CHICAGO, ILLINOIS
Ms. Olson. Would you like me to start over? Thanks.
Good morning. Thank you, Chairman Walberg, Ranking Member
Courtney, and other committee members. I am testifying on
behalf of the U.S. Chamber of Commerce, the world's largest
business federation. I chair the chamber's Employment
Opportunity Policy Subcommittee, and I am also a partner with
the law firm of Seyfarth Shaw.
The Chamber is a long-standing supporter of reasonable and
necessary steps to achieve the goal of equal employment
opportunity for all. However, the Chamber has serious concerns
as to how federal nondiscrimination laws are currently being
administered and enforced by the EEOC.
Loosely defined and overly broad, grants of authority to
agency officers have resulted in an EEOC that prioritizes
expansive enforcement, aggressive litigation and punishment
over education, cooperation, and conciliation. The EEOC is
failing in its fundamental roles, failing to properly and
timely investigate charges, failing to conciliate in good faith
and failing to effectively litigate. As a consequence, the EEOC
is failing in its core mission: to effectively enforce Title
VII and other nondiscrimination laws.
First, EEOC has not fulfilled its mandate to properly
litigate and investigate charges. Investigation abuses include
those experienced by Chamber members as well as those relied
upon by courts to grant summary judgment in an employer's favor
in multi-plaintiff litigation initiated by the EEOC.
At EEOC meetings in 2012 and 2013, both plaintiff and
management attorneys confronted EEOC commissioners with
complaints that investigations were too long, inconsistent and
of questionable quality. To date, the EEOC has failed to
address those concerns by providing investigators with
timeliness standards for a definition of a quality, limited
investigation.
Second, too often the EEOC has prioritized litigation over
its statutory mandate to conciliate, refusing to engage in
meaningful conciliation negotiations and exchanges of
information during conciliation. EEOC now contends that
conciliation obligations are exempt from judicial review. EEOC
v. CRST is one stark example of the damage done by the EEOC's
misplaced priorities. The 8th Circuit Court of Appeals
dismissed an EEOC case involving over 150 women because the
EEOC's failure to conciliate and its, quote, unquote--
``stonewalling,'' sanctioning the EEOC $4.7 million.
Third, numerous EEOC cases have been initiated without
commission authorization. And many have been adjudged by
federal district courts across the United States to be
frivolous, unreasonable and without foundation. In the last two
years alone, the EEOC has been ordered to pay employers over
$5.6 million as a result of its litigation failures. A Michigan
federal court described the EEOC's actions as, quote--``lacking
foundation from the beginning.'' While a New York federal court
criticized the EEOC for its, quote--``sue first, prove later
approach.''
In EEOC litigation challenging an employer's use of
background checks, Ohio and Maryland federal courts
independently criticized the EEOC for using a, quote--
``homemade method of proof that the EEOC itself prohibits,''
noting that the EEOC was suing employers for the same type of
background checks that the EEOC itself uses.
The Maryland court characterized the EEOC's analysis as
containing a mind-boggling number of errors, laughable, skewed
and an egregious example of scientific dishonesty.
Of particular concern is the EEOC's extensive delegation of
authority to the general counsel in bringing litigation. Given
the significant expenditure of resources by all parties in
systemic and multi-plaintiff cases, and in light of the EEOC's
recent history of litigation failures, the Chamber urges that
all multi-plaintiff litigation be submitted to the
commissioners for approval prior to initiation.
The EEOC does not report the results of one of its most
important legal enforcement methods, the amicus curiae briefs
it files in cases raising novel or important issues of law. In
2013, the EEOC's positions were rejected in eight of the 10
substantive positions it advanced through its amicus briefs. In
four of these, the Supreme Court and courts of appeals also
rejected relevant provisions in the EEOC's underlying
enforcement guidance. In one case, the Supreme Court
characterized the EEOC's underlying enforcement guidance as,
quote--``a proposed standard of remarkable ambiguity,'' while
in another the Supreme Court rejected EEOC's enforcement
guidance, explaining it's positions were circular and
unpersuasive.
The EEOC's amicus litigation program was an overwhelming
failure, leaving employers searching as to where to find
accurate, reliable guidance on their obligations under federal
nondiscrimination laws. I have submitted for the record written
testimony, as well as the Chamber's recently published paper
that details the EEOC's unreasonable enforcement efforts and
misplaced priorities in all three phases of its statutory
mandate. For these reasons, the Chamber calls for increased
oversight by the commissioners and a refocusing of EEOC's
priorities toward its fundamental statutory responsibilities.
Thank you for the opportunity to share some of these
concerns with you today.
[The statement of Ms. Olson follows:]
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Chairman Walberg. Thank you.
Mr. McCracken, you are recognized for 5 minutes.
STATEMENT OF MR. TODD MCCRACKEN, PRESIDENT, NATIONAL SMALL
BUSINESS ASSOCIATION, WASHINGTON, D.C.
Mr. McCracken. Good morning, Mr. Chairman, members of the
Committee. My name is Todd McCracken. I am the president of the
National Small Business Association. Thank you for inviting us
here today to discuss some of the many federal enforcement
issues that confront our nation's small business community.
Today, I am going to focus my comments on criminal background
screening in general, and recent initiatives in this area by
the Equal Employment Opportunity Commission, in particular.
Employers want to provide a safe place for their employees
to work and to do their best to prevent workplace crime. They
want to ensure that the employees that they send to customers'
homes as technicians, repair people, or salespeople do not
inflict harm on their customers. They need to take steps to
prevent theft, fraud, and embezzlement. Criminal background
screening is an important tool--nearly the only tool for small
companies--that employers have to protect their customers,
their employees, and themselves from criminal behavior.
For its part, the federal government--in this case, the
EEOC--has an obligation to articulate rules that are
comprehensible and can actually be implemented. It is
fundamentally unfair and, in practice, counterproductive for
the rules to be so opaque that few small business practitioners
can understand them. Lack of crisp guidance leads to situations
where enforcement is starkly arbitrary, and the rules, since
they cannot be understood, are, effectively, ignored.
Today, small companies live with the threat that they may
be sued for negligent hiring if they hire an unsuitable
employee who subsequently commits a crime or tortious act in
the workplace or in a customer's home or workplace. The
complicated, confusing guidance discourages small businesses
from relying on checks and, in tandem with EEOC's stepped-up
enforcement in this area, means that small businesses face
greater legal exposure.
Small businesses are caught between competing government
priorities and perspectives among different federal agencies,
the courts and state and federal governments. The 2012 EEOC
guidance, for example, explicitly stated that the fact that a
small business was complying with the state legal requirement
to conduct a criminal background check or to bar a felon from a
particular position would not prevent an EEOC enforcement
action. With respect, it is ridiculous that a small business is
forced to choose between two conflicting government
requirements. If the EEOC has a problem with a state statute it
should challenge the statute, not launch enforcement action
against a business who complied with state law.
Unlike the federal government, small businesses have
limited resources and defending such lawsuits can devastate the
financial health of the business.
Neither the small business community nor the EEOC
countenances discrimination. Small businesses are conducting
background checks to help promote public safety, not for the
purposes of excluding minority employees. They are trying to
hire qualified employees. They are trying to prevent their
employees, their customers and, in the case of family-owned
businesses, their own families from becoming victims of crime.
They are trying to avoid liability for crimes committed by
employees, and they are trying to limit theft, fraud,
embezzlement, and other property crimes.
The vast majority of small firms are also trying to comply
with the law and with EEOC guidance. In the current situation,
they are unable to do so with any degree of confidence. I can
assure that it is a rare small business owner who is going to
be able to read, absorb and apply the 55-page, 167-footnote
enforcement guidance on a consideration of arrest and
conviction records in employment decision that are in Title VII
of the Civil Rights Act of 1964, issued by the EEOC on April
25, 2012. More importantly, we have had discussions with
sophisticated attorneys who grapple with these issues for a
living, including those who work for large law firms advising
large corporations.
They struggle with how to advise their clients, as well. If
they are at a loss, then small firms and their generalist
attorneys will fare no better.
Workplace violence is a significant problem. Workplace
theft and embezzlement are also major problems. Both can be
reduced through proper background screening. According to the
Bureau's justice statistics, approximately 572,000 non-fatal
violent crimes occurred against persons age 16 or older while
they were at work in 2009. Workplace violence accounted for 15
percent of non-fatal violent crime against persons age 16 or
older. In short, workplace violence remains a very serious
problem, even though it has declined over the last 15 years.
I would also like to make the point that it is not
fundamentally in an employer's interest to fail to hire an
otherwise qualified applicant because of a long-past minor
infraction. It is not in their interest, for example, to fail
to hire someone who got into an altercation years ago and has
otherwise had no problems with the law and has a good
employment record. Since employers have every interest in
keeping their pool of potential job candidates as large as
possible, it does not take a major enforcement effort to
achieve these results. We must find a way to provide clear
guidance to small companies so that they can protect their
employees, their customers and their workplaces without unduly
burdening them.
Thank you for inviting us to testify today, and we look
forward to continuing to work to address these important
issues.
[The statement of Mr. McCracken follows:]
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Chairman Walberg. Thank you.
Ms. Ifill, you are recognized for your 5 minutes. Thank
you.
STATEMENT OF MS. SHERRILYN IFILL, PRESIDENT AND DIRECTOR-
COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, NEW YORK,
NEW YORK
Ms. Ifill. Thank you. Good morning, Chairman Walberg,
Ranking Member Courtney, members of the subcommittee. Thank you
for the opportunity to testify this morning about the Equal
Employment Opportunity Commission.
Next month, we will celebrate the 50th anniversary of the
Civil Rights Act of 1964. Without question, that legislation is
one of the most important pieces of civil rights legislation
ever enacted by the United States Congress to ensure that our
country keeps its promise of equality and justice.
It is perhaps best known for Title VII, which outlawed
discrimination in employment on the basis of race, color,
religion, sex or national origin. The creation of the EEOC as
the agency charged with receiving, investigating and referring
complaints of employment discrimination for litigation was a
core aspect of the bipartisan compromise that resulted in Title
VII.
Since the enactment of Title VII, the Legal Defense Fund
has worked to enforce this landmark statute, challenging
discriminatory practices of both private and public employers,
and serving on the front lines of many great civil rights
battles seeking equal opportunity in employment for all. From
this vantage point, the Legal Defense Fund has had the unique
opportunity to observe the work of the EEOC and to assess its
effectiveness. There is no question that the EEOC has been
incredibly successful in redressing various forms of employment
discrimination. The commission has been a driving force in
dismantling segregated workplaces, removing unnecessary and
discriminatory employment barriers and obstacles, and ensuring
that the promise of equality at work could be realized for
millions of Americans.
Despite the tremendous progress we have made in ensuring
equal opportunity in the workplace, sadly our work in
eliminating discrimination is far from over. And the EEOC plays
a critical role in the ongoing work of eradicating employment
discrimination. One need only look to recent EEOC court
victories to understand that even the most pernicious forms of
racism on the job unfortunately still exist. In 2012, a Texas
jury awarded punitive damages to three African-American
manufacturing employees subjected to racially offensive slurs
and a noose in the workplace, including the use of the N word
by a top plant official who responded to complaints about the
noose with the comment, ``You people are too sensitive.''
Last year, a North Carolina jury unanimously found that
African-American truck drivers who were called the N word,
monkey and boy, and threatened with nooses by a manager and
coworker, were harassed and retaliated against because of their
race.
And earlier this year, the EEOC secured relief for an
African-American technician in Arkansas who was subjected to
racially offensive language and visited at home, in it middle
of the night, by two white coworkers threatening to kill him if
he complained about further racial harassment.
In fiscal year 2013 alone, the EEOC received nearly 94,000
charges of discrimination. Of those charges, 33,068 involved
allegations of racial discrimination. Over 27,000 involved
allegations of sex discrimination, over 25,000 of disability
status. And over 21,000 involved allegations of age
discrimination. And we know that the number of filed charges
does not come close to fully representing the millions of
Americans who still endure unlawful discrimination and
mistreatment in the workplace. The recent downturn in the
economy has only served as another painful reminder of the
continued existence of employment discrimination in the
workplace.
While nationwide the unemployment rate is around 6 percent,
for Latino Americans the rate is 8 percent and for African-
Americans, 12.2 percent. Given the scope of the problem, we
commend the EEOC's decision to continue to prioritize the
initiative revitalized under President George W. Bush's
administration of focusing the commission's resources on
redressing systemic discrimination.
We also applaud the EEOC's recent actions around the misuse
of criminal background checks in employment. We believe it
highlights the ways in which the commission is working to
address and remedy discriminatory barriers that have disparate
impacts on protected classes.
It is important to remember that the EEOC guidelines do not
prohibit or discourage the use of background checks. Instead,
they provide guidance to employers. All of us stand united in
our commitment to a safe work environment. We stand in sympathy
with the family of Susan Weaver, whose tragic death resulted
from the failure to properly use criminal background checks.
The EEOC's guidance is designed to help employers in the proper
use of this important information, and to explain to employers
how they can use this and keep their workplace safe.
The guidance is not only commendable, it is consistent with
the growing national and bipartisan consensus that we need to
rethink our criminal reentry systems in order to ensure that
millions of Americans who have a criminal record, but who have
paid their debt to society and do not pose a danger and are
qualified for work, are not unjustly denied the opportunity to
reintegrate back into society. The eve of the 50th anniversary
of the Civil Rights Act of 1964 provides a timely opportunity
to pause and consider the work of the EEOC.
That work is far from over. As Naomi Earp, who served as
the chair under President George W. Bush remarked, ``new times
demand new strategies to stay ahead of the curve; these old
evils are still around in new forms, and the commission intends
to act vigorously to eradicate them.'' We agree with that
statement.
Thank you for the opportunity to testify today, and I would
be happy to answer your questions.
[The statement of Ms. Ifill follows:]
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Chairman Walberg. Thank you, Ms. Ifill.
Ms. Bone, you are now recognized.
STATEMENT OF MS. LUCIA BONE, FOUNDER, THE SUE WEAVER
C.A.U.S.E., FLOWER MOUND, TEXAS
Ms. Bone. Good morning, Chairman Walberg and Ranking Member
Courtney and other members of the subcommittee. It is a great
privilege for me to appear before the House Subcommittee on
Workforce Protections in honor and in memory of my sister, Sue
Weaver, and for the other victims whose tragic deaths could
have been prevented had an employer done a proper criminal
background check before hiring those individuals.
My name is Lucia Bone, and I am the founder of the Sue
Weaver C.A.U.S.E., Consumer Awareness of Unsafe Service
Employment. In 2004, we were founded, and C.A.U.S.E. is a non-
profit organization proactively keeping you and your families
safe by promoting the importance of proper annual criminal
background checks on anyone hired to work in our homes or with
vulnerable populations. C.A.U.S.E. does not actually conduct
criminal background checks. We are an honorary member of the
National Association of Professional Background Screeners.
At one time or another, we all need to invite strangers
into our home for maintenance or delivery. Most of us trust the
companies that we hire to send safe workers into our home. But
how do we know if that trust is well-placed? My sister, Sue
Weaver, thought it was. She was wrong. My sister hired a
reputable Florida department store to have her air ducts
cleaned. No criminal background checks were done on the workers
they sent into customers' homes.
The work was subcontracted out, and two convicted felons
were sent into Sue's home to do the service work: a single
woman, home alone, two convicted felons. Six months later, one
of the workers returned. He was a twice-convicted sex offender
on parole. He raped Sue, he murdered her, he set her body and
her home on fire in an effort to destroy the DNA evidence. Had
a criminal background check been done, the employer would have
known that these men were not suitable to be working in
customers' homes due to their criminal history, and my sister
might still be alive today.
Since Sue's death in 2001, I have campaigned tirelessly to
educate and bring awareness to the importance of proper
background investigations and the importance of knowing whom
you hire. Not only do background checks make good business
sense, they save lives. It is absurd that a person with
multiple convictions for violent sexual assault should be
engaged as a home repairman, yet it happens over and over
again. Everyone has the right to work, but not every job is
right for everyone.
Criminal background investigations provide employers an
invaluable tool to help them place employees in job-appropriate
positions, better protecting coworkers and customers.
Background checks prevent tragedies.
In the last decade, we have witnessed a dramatic upsurge in
laws mandating background checks in many areas, often to better
screen those working with children or vulnerable populations.
Unfortunately, we must ask ourselves if the EEOC's focus isn't
on helping ex-offenders seeking employment without regard to
consumer safety. Everyone deserves a second chance, but not at
the expense of innocents such as my sister.
Employers need to know who they are hiring, and background
checks are an appropriate risk-mitigation tool that helps them
do so. I am gravely disappointed that no victims were
represented at the July 2011 meeting of the EEOC that preceded
the issuance of the guidance. The Commission did not consider
the victims' side, but solely focused their attention on the
plight of the ex-offenders.
Background checks were singled out as the leading cause of
why minority ex-offenders fail to find jobs. They ignored other
challenges, such as drug and alcohol addictions, lack of
education or vocational training and lack of family structure,
and ignored the consumer safety and risk mitigation benefits of
background screening.
I am not an expert in the workings of Congress and
regulatory agencies, but common sense leads me to believe that
the EEOC needs to suspend implementation of its guidance and
hold the type of transparent, inclusive proceeding that it
should have conducted in the first place. This time, they need
to listen to victims and their families, and victims' rights
organizations, and those representing the vulnerable
populations. All views need to be heard and considered before a
new policy goes into effect.
When weighing the risks and benefits of the proposed policy
guidance, they must balance the safety of the public and the
innocent consumers against the employment concerns of ex-
offenders. While, sadly, it is too late for my sister, it is
not too late for all the others who might become victims. By
discouraging background checks used to qualify individuals that
work near our families, we are knowingly risking the safety of
ourselves and our loved ones.
Under the guidance, it is more difficult for employers to
make informed hiring decisions, placing employees and consumers
in unsuitable situations and jeopardizing the safety of our
families, our homes and our workplace.
Thank you.
[The statement of Ms. Bone follows:]
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Chairman Walberg. I thank you for your testimony. I thank
each of you for the testimony.
And now I recognize, to open our questioning, the Chairman
of our full Committee, Education and the Workforce, the
gentleman from Minnesota, Mr. Kline.
Mr. Kline. Thank you, Mr. Chairman. And thank the witnesses
for being here today. Really expert testimony from all of you.
I want to--I think we could all agree, in fact I am sure of
it, on both sides of the aisle, that it is important, when we
look at nondiscrimination issues and Title VII, that we do so
mindful of what it was supposed to do.
What I see here, listening to Mr. McCracken's testimony, is
a situation where we are making things more and more
complicated and, therefore, harder to actually comply with the
intent of the law. So in looking at the criminal background
checks guidance--I think, Mr. McCracken, you indicate it is 55
pages long, and my notes say 157 footnotes, I think you said
167--that is a lot, in a time when we see uncertainty and a
blizzard of rulemaking descending on businesses, large and
small.
We have small businesses--for example, trying to figure out
whether they have got 50 employees or 49 employees, or whether
they are working 30 hours or 29 or 39 hours a week--how are
they gonna comply with the Affordable Care Act? And now they
have got guidance from the EEOC that is 55 pages long and has
157 footnotes. It seems to me that would be pretty difficult to
comply with if you are a small business owner. Would it not,
Mr. McCracken?
Mr. McCracken. I would say yes, because the companies that
I am most--we are most concerned about are those, as you
suggest, 50 or so and less, where they don't have a dedicated
HR person on staff. A lot of these issues are handled directly
by the small business owner him-or herself. And we also have to
realize that it is particularly in smaller workplaces employees
often handle a wide variety of tasks, and jobs can change
rather quickly. And so doing the individualized assessments is
even more complex and difficult in a small business setting
than it is in a large employer setting. And coupled with that,
they have far less available expertise with which to accomplish
that.
Mr. Kline. Right. So they are going to have difficulty
complying with this if they don't have the resources to hire an
attorney. Is there any safe harbor in here?
Mr. McCracken. Not that I am aware of, no.
Mr. Kline. I mean, I suppose they could just not do
background checks. But then they would be in violation of other
statute. So under that circumstance, it seems to me that this
would add to uncertainty on the part of employers and would
make it less likely that they would make new hires. And at a
time when we are looking at a workforce participation rate that
is as low as we have seen in decades, another factor making it
more difficult for employers to make decisions to hire is
exactly the wrong thing that we need right now.
But it looks to me as though this guidance is going to do
just that. And so whether you are a potential new hire that is
a minority or not a minority, protected class or not, less
likely to have an opportunity to be hired under this guidance.
Is that the way I--that is the way I understand your testimony.
I am just trying to--
Mr. McCracken. I think that is a good analysis. Another
point that I would bring up that hasn't been specifically
mentioned is, it also creates incentives for companies of all
sizes to subcontract out many of these functions so they don't
do the hiring themselves. And to the extent those companies, or
small businesses with fewer than 50 employees, these laws don't
apply. So there is a significant--the more complex you make
these things, the more difficult they are for employers of all
sizes, the more the very underpinnings of the goals of the
rules are undercutting themselves.
Mr. Kline. So it has the perverse effect of actually
putting up employment barriers, which we were trying in the
first place to eliminate employer barriers, employment
barriers, barriers to employment by the original act.
All right, Mr. Chairman, I yield back. Thank you.
Chairman Walberg. I thank the gentleman.
I now recognize the ranking member, Mr. Courtney.
Mr. Courtney. Thank you, Mr. Chairman. And, again,
unfortunately because the agency was not invited today so that
we could actually have a real dialogue and, you know, I
actually think that would be a way to sort of shed light in
terms of trying to get to real oversight, you know, we are
going to have to sort of rely on sort of indirect, third-party
contributions to sort of, at least partially, recreate some
balance in the record here.
And so, Mr. Chairman, first of all I would like to enter
into the record a statement by David Lopez, who is general
counsel for the EEOC, who makes a few points, which he did just
recently again, in response to some of the claims that we have
heard here this morning. Number one, he sets the record
straight in terms of the percentage of litigation that actually
has materialized in 2013. And, again, Ms. Ifill sort of alluded
to that in terms of some of the statistics that she cited. But
it is about 0.5 percent, less than a percent, of cases that
actually went to litigation.
In addition, he cited some other court rulings, Mach Mining
and others, who were at odds with the case that was cited
earlier here. Again, there is clearly a conflict between the
two circuits about the--you know, the handling of the
conciliation process by the agency, which is a good thing.
Again, I practiced law for 27 years, and understood well that,
you know, judges, like everybody else, can sometimes disagree
in terms of interpreting statutes. And, again, I think, you
know, having that discussion here today is fine.
Again, it is too bad that the party to the litigation is
not present in terms of being able to just, you know,
articulate their point of view on this. But again, we were
deprived of that by the way in which this hearing was
organized. So, again, I would like to have Mr. Lopez's
statement entered into the record. Which, again, I think sheds
some facts for the record in response to some of the claims
that were being made here.
[The information follows:]
[Additional Submissions by Mr. Courtney follow:]
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Chairman Walberg. Without objection, the item will be
entered.
Mr. Courtney. In addition, I would like to enter the Wall
Street Journal article of February 9. The title is ``EEOC Sues
Less, but Tactics Draw Flack.'' Again, which shows kind of the
discussion here today. Which is that, clearly, the numbers show
that, you know, the notion that there is like this avalanche of
litigation out there in fact just is not sustained by a true
analysis of 2013 data. But there is--the tactics are being
criticized, and that is certainly what is happening here today.
But again, I think this article shows some balance which,
again, the fact that we don't have the agency, the party
defendant to some of the claims that are being made present
here today, unfortunately we have to rely on a third party. So
again, I would ask that the Wall Street Journal article--
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Chairman Walberg. Without objection--
Mr. Courtney.--the record.
Chairman Walberg.--it will be entered.
Mr. Courtney. Now, Ms. Ifill, you described, again, the
fact that prejudice and discrimination still exists in this
country, sadly. And, frankly, we have had some sad examples of
that in the media, with Mr. Sterling out in California, the
Nevada rancher. But again, there, in fact, are many, many
instances where EEOC's role, even 50 years later, is still, you
know, very important to the great strength of this country,
which is the diversity of its population.
But one thing I also think is important to note is that,
you know, this agency is not growing like Topsy. In terms of
the staffing of the agency, it is actually smaller than it--
today than it was even in a short time ago. And I was wondering
if, again, you could sort of confirm that in terms of your
experience with the department.
Ms. Ifill. Yes, indeed, that is correct. And as I alluded
to in my testimony, the complaints that are being received by
the EEOC remain still, sadly, at a very high level. And so the
agency is really charged with figuring out how to address the
thousands of complaints that they receive with, in fact, a very
limited staff.
You know that the statute requires the EEOC to engage in
conciliation first, which they do. And you also probably know
that, certainly, the figures that we have been able to identify
demonstrate that the vast majority of cases in which the EEOC
participates are resolved through conciliation or through
settlement, and a very small fraction actually involve cases
that go to trial or are litigated.
And so the EEOC, at least from our view, is doing precisely
what the statute required it to do. Which is to, the first line
of attack, attempt to resolve problems of discrimination in the
workplace without litigation. With regard to that litigation
record, well, I am a little cautious about cherry-picking
through a record to determine whether, in fact, the EEOC is
unsuccessful, as has been suggested by some of the testimony
here. In fact, if you look at the last year and the cases that
have gone to trial, the EEOC has won nine of 10 jury trials. I
can tell you, as the leader of a civil rights organization, it
is not an easy thing to win a jury trial in an employment
discrimination case. But the EEOC has won nine of the 10 of
them.
If I might, I wanted to say something about just the
comment that was made earlier about background checks. Am I out
of time?
Chairman Walberg. Let's reserve. The time is up. I thank
the gentleman. I now recognize myself for 5 minutes of
questioning.
Going back to the issue, Mr. McCracken, of a safe harbor.
EEOC's enforcement guidance says that if a state law requiring
a criminal background check is inconsistent with the guidance,
complying with the state law will not shield an employer from
Title VII liability. Nor will complying with the guidance
necessarily protect an employer from tort liability for
negligently hiring a person who goes on to commit a crime
against the customer, as in the case of Ms. Weaver. In your
opinion, what would be an appropriate safe harbor in
relationship to these guidances?
Mr. McCracken. Well, we certainly think that it would be
appropriate when there is a direct conflict between different
levels of government in terms of a requirement on a company
that there be a safe harbor until those various levels of
government can work out their dispute. But it--we don't think
it should be worked out by putting, essentially, small
companies in a vise and hearing different things from different
parts of the government.
So I--we think that it would be appropriate for the EEOC to
create an exception or a carve-out in that particular
circumstance. And then proceed to work out the disagreement
with the state or the city or whomever else has that
requirement.
Chairman Walberg. Okay. But there isn't that possibility
now, as you under--
Mr. McCracken. That is not my understanding.
Chairman Walberg. There is no flexibility there.
Ms. Olson, you are shaking your head.
Ms. Olson. That is correct. The EEOC has made that very
clear. In fact, there is a lawsuit that has been brought by the
state of Texas in connection with that specific issue. And the
EEOC's response to the state of Texas' concern regarding
conflicts between state law and the EEOC guidance has been you
can't sue based on the guidance; it doesn't have the force of
law. Leaving employers in a quandary of being potentially
subject to significant litigation, as we have discussed today,
where the EEOC is actually pushing enforcement of the theories
and the guidance and yet, at the same time, potentially being
subject to state litigation and litigation by private parties
if it doesn't do the background checking that is required under
state law.
Chairman Walberg. So the costliness of that to the employer
encourages them to just back away.
Ms. Olson. Right.
Chairman Walberg. Let me go on, Ms. Olson. Beginning in
1996, the EEOC delegated litigation authority decisions to its
office of general counsel. We expressed concern and questions
about that when we had the EEOC in front of us last year. In
2012, EEOC reinforced a delegation of litigation decisions to
the general counsel, with three exceptions. These three
exceptions are not always clear, and still allow the general
counsel considerable discretion as to which cases to bring
before the commission for a vote. Do you believe this
delegation of litigation authority affords the general counsel
too much discretion, and why?
Ms. Olson. I do believe it does. The extent of delegation
to the general counsel, and then the further delegation by the
general counsel to the district offices, represents a retreat
from the responsibilities that both the commissioners, as well
as the general counsel were confirmed to carry out.
In this context, there is no question that litigation is
policy. The policy of the EEOC is more often than not
established by the cases it brings. We have heard, today,
testimony universally from witnesses that litigation is
important; an important policy issue, as well as an important
enforcement issue, for the EEOC.
These are the decisions that are properly within the
purview of the confirmed commissioners, not bureaucrats that
are spread throughout 15 different offices. And if you look at
the history of the EEOC during the years 2000 to 2005, EEOC
commissioners confirmed, or initiated and authorized,
litigation in approximately 75 to 80 cases per year. If you
look back to the years 2010, 2011 and 2012 the record makes
clear they have--in those three years combined only authorized
litigation in 15 cases.
Chairman Walberg. So hence, possibly, the Wall Street
Journal article, which gives a, I would say, clear
misrepresentation of the purpose of the EEOC and how it is
being carried out, and doesn't note that it has become more
bureaucratic with the office of general counsel doing the
litigation. Am I correct?
Ms. Olson. Another great example are the two recent cases
that were brought by the EEOC with respect to criminal
background checks: the BMW case and the Dollar General case. In
both those cases, those employers are being sued on an alleged
theory that there is a disparate impact because the employers
did not do individualized assessments and are being criticized
for not having done individualized assessments in those cases.
And yet Commissioner Berrien, on behalf of the EEOC, has said
individualized assessments are not required. A complete
disconnect between policy and litigation.
Chairman Walberg. Okay, thank you. My time has expired.
I recognize Mr. Takano for your 5 minutes.
Mr. Takano. Thank you, Mr. Chairman.
Ms. Ifill, would you like to--I would like to give you some
time to comment on the background check response.
Ms. Ifill. Thank you, very much. I wanted to respond
because I want to make clear that neither criminal background
checks nor guidance or standards that relate to how to properly
use criminal background checks are entirely new. The guidance
that was developed and promulgated by the EEOC actually is
based on law that comes out of federal courts dating back to
1975. The guidance that the EEOC offers as it relates to
criminal records and criminal background checks, as I said
earlier, neither discourages or suggests that background checks
of this sort should not be used.
Instead, what it does is it provides precisely what the
word says, ``guidance'' to assist, support and help employers
figure out how to properly use that information. It draws a
distinction between, for example, records of arrest and records
of conviction. It suggests that when there is a conviction on
the record the employer should engage in what is being called
an ``individualized assessment,'' which sounds incredibly
onerous but, in fact, actually consists of three common sense
factors.
That finding a conviction on record, the employer should
ask three questions. One, what was the nature and gravity of
the offense or conduct for which the conviction was received.
Two, what is the amount of time that has passed since the
offense or conduct and/or completion of the sentence. And
three, what is the nature of the job held or sought.
In the circumstance we heard described earlier with the
tragic death of Susan Weaver, for example, knowing that the job
requires people to enter a home would be a relevant factor. The
fact that there was a conviction on the record for a violent
crime would be a relevant factor. The time distance between the
crime and the employment would be a relevant factor.
Earlier, Mr. McCracken suggested that it is not logical for
employers to exclude employees based on these records if, in
fact, the crime is not relevant. But it does happen. We
represent a woman named Barbara Harrison. Right now in Texas, a
58-year-old grandmother who applied to be a school crossing
guard, when her background check was done, a charge came up
from 40 years earlier of a fight she had with another girl when
she was 18 years old. And despite the fact that Ms. Harrison
has worked for the city of Dallas for 28 years, the job offer
that had been extended to her to serve as a school crossing
guard was withdrawn.
And the guidance is meant to help employers make
distinctions between those kinds of situations and the
situations that appropriately require the exclusion of a
potential employee.
Mr. Takano. Thank you, Ms. Ifill. The example just brought
up sort of resonates with some of the findings I have had
traveling through my district, speaking to both employers and
frustrated prospective employees. That sort of disparity
between--I mean, that is also a common sense instance. I mean,
Ms. Bone, you talk about representing common sense, and I
recognize the common sense that your represent. But I think we
could agree that a situation of a 40-year-old offense, I mean,
much time has passed. I mean, these are reasonable guidelines
and standards.
Are we--you know, Ms. Ifill, I have become aware that many
states, at least 12 states, have adopted much of--in their laws
governing this topic of background checks, the guidelines of
the EEOC. And so the conflict between states and federal
government that Mr. McCracken talks about is the trend seems to
be moving toward adopting what you have just, let's say, are
common sense guidelines. Can you comment on that?
Ms. Ifill. Twelve states and 60 jurisdictions have adopted
ban the box rules, the idea being to move the issue of
background checks further in the process of employment. We all
know that this country is hurting. That workers, potential
workers, are hurting. And the effort here is to ensure that
those who deserve a fair chance at a job have an opportunity to
get that job without being excluded based on records that are
irrelevant to the job, charges that are too old and that do not
pose or demonstrate that the employee poses a danger.
And so many states have recognized this. And increasingly,
businesses are recognizing this as well. Target, as you may
know, has decided to ban the box. That is, the box that asks
about criminal records early in the application process, and
instead moves it to later where the employer has an opportunity
to engage in the kind of assessment that the EEOC guidelines
suggest.
Mr. Takano. Thank you.
I believe my time is up, Mr. Chairman.
Chairman Walberg. Thank you.
I recognize now the gentleman from North Carolina, Mr.
Hudson.
Mr. Hudson. Thank you, sir. And I want to thank the
witnesses for being here today. This is a very illustrative
debate on this issue. And particularly, Ms. Bone, I appreciate
you and want--I was moved by your testimony, and I want to
offer my condolences on behalf of your sister. And thank you
for the work you are doing. I think it is important.
My question to you today, some have argued that the EEOC in
its guidance gave short shrift to the reasons behind why
background checks are necessary for informing hiring decisions.
And also their importance in public safety--this--and, you
know, do you--I guess my question to you is, do you think the
EEOC failed to strike a balance between its aims to help
protect, you know, ex-offenders, but also is striking that
balance on behalf of public safety? And what recommendations
would you make in terms of trying to find a better balance?
Ms. Bone. I do believe that they did not listen to the
victims' side on several occasions. Not only did I write to the
EEOC sharing Sue's story, but I was at the hearing. There was
absolutely no representation at all from any of the victims'
sides. I think they took the rights of the perpetrators way
over the rights of the victims. And although I did say in my
testimony that I do believe that everyone does have the right
to work and there is a job for everyone, I do not think that
the perpetrators' rights should go before the victims' rights.
I would very much like to see them suspend this guidance
and have an open hearing that weighs both sides and that all
parties are well-represented. And that they need to stop
demonizing background checks and strike a balance so that it is
fair to all parties.
Mr. Hudson. I appreciate that, and I think that is a good
recommendation. You know, I am just struck--I am just trying to
grapple with why the guidance is devoid of any real discussion
of the importance of background checks. Particularly when the
EEOC, other government agencies, rely on background checks in
their hiring, and a lot of our local and state counterparts. So
I agree with you, and appreciate your assessment on that.
I would now like to jump over to Ms. Olson, if you don't
mind. You mentioned in your testimony a couple court cases. One
where EEOC had to pay $4.7 million in attorneys' fees, another
$752,000 in attorneys' fees. Is it of concern that courts have
repeatedly found these claims frivolous? Should taxpayers be
concerned, and I guess my ultimate question here, do these
court orders indicate EEOC legal theories and systemic cases
are off the mark?
Ms. Olson. It does. It indicates that the theories that are
being brought are not well grounded in either the facts or in
the law. There is no question about it. You have got to
remember, it is very rare for a court to actually sanction a
litigant that loses a case. So the fact that you see millions
of dollars here--and the opportunity costs in terms of these
are generally big systemic or multi-plaintiff cases that are
being brought on dubious legal theories, attempting to stretch
the contours of the--or the statutes that the EEOC is
administering.
As opposed to the type of cases that Ms. Ifill is
describing, where there are individuals who have charges that
are pending for multiple years that haven't been investigated
and haven't been included. Charges where there may be
discrimination, those individual cases that aren't being
pursued. Imagine how many individual cases could be litigated
by the EEOC for the $5 million to $6 million that the EEOC has
had to pay over to employers. And this really doesn't account
for the cases that the EEOC has lost, that the courts did not
apply sanctions in terms of a repaying of the employers'
attorneys' fees and cost.
Mr. Hudson. Appreciate that. It seems in these cases--many
of these cases brought by EEOC under disparate impact theory,
in which a facially neutral policies challenges have a
disproportionate impact on a protected class of applicants or
employees, and is not of business necessity. Is there a common
theme to these losses? Do these losses--these cases indicate
that EEOC needs to reassess the kinds of disparate impact cases
it brings?
Ms. Olson. Yes. The common theme, if you look at--and there
have only been three cases brought by the EEOC that have been
decided with respect to background checks: Peoplemark, Kaplan
and Freeman. The EEOC--this is not cherrypicking--has lost all
three cases. And why? Because the cases were not well grounded
in facts, yet alone the law. If you look at the additional
testimony that is being submitted by the EEOC general counsel,
he describes the fact that, in fact, the legal theories were
not even tested.
Those courts found that the EEOC was not even able to state
a prima facie case of discrimination. That is the law and that
is the facts, and the EEOC is failing on both.
Mr. Hudson. Thank you, Mr. Chairman. I see my time has
expired.
Chairman Walberg. I thank the gentleman. And I thank the
witnesses for being here today. And, again, this is just part
of the process. But these are questions that are important for
the lifeblood of our country, not simply its economy, not
simply its business opportunities, but for individuals
themselves. And we need information that we can work from. So
thank you for being here.
I now recognize the ranking member, Mr. Courtney, for any
closing remarks that he might have.
Mr. Courtney. Thank you, Mr. Chairman. And at the outset, I
wanted to make sure, let it be noted, that Chairman Walberg
actually gave some mild criticism to the Wall Street Journal,
which is quite a--and the roof didn't fall in. So, you know, it
was quite a moment to witness.
And, again, I want to thank all the witnesses for their
testimony here today. And again, I think, you know, there are
some--as I said at the outset, I mean, I think there are some
important questions that we discussed here. Some of which,
again, is reflected in divided opinions of the circuit courts.
And that, you know, is kind of interesting to hear about. And
again, this question of whether or not the--this new program
and guidance is being, you know, appropriately implemented.
Again, I think is something that is of great public
interest. And Ms. Bone, your testimony today I think really
helped us frame this the right way. What I--again, am still
mystified is that why, you know, if we are trying to learn
about what is going on in the courts or how this guidance is
being implemented, why the agency is not participating in this
hearing is still something that puzzles me. If they had been
here, as I said, we would have at least had some, I think
helpful debate about their track record in terms of litigation
and the process that they use to authorize it.
I think the statement we have submitted is an attempt to at
least partially address that point. I think we also would have
heard about some of the outreach that is going on with business
in terms of the implementation of the guidance. Again, there
have been, I think, a bona fide effort to do frequently asked
questions. Much more intelligible than the regs that were
issued. And I completely agree that sometimes the stuff that
comes out of the Federal Register for the average business who
is just trying to, you know, make a living and sell their
product or their service, you know, that is very difficult.
But again, the agency actually has tried to translate that
into the English language, and actually have held outreach
sessions. And I think there is some indication, in terms of
what the agency has been able to tabulate, that there actually
has been some take-up in a positive way.
But again, the--a record has been made here today. And the
EEOC staff is in the room. And I am sure they are making good
notes. And hopefully, we will have an opportunity to get, you
know, some more feedback from the department in terms of steps
they are taking to make sure that, you know, these--this
program is being implemented in a thoughtful, common-sense,
balanced way.
And Mr. Lopez, in this comments that I submitted for the
record, made it clear that, yes, when a court rules against you
and imposes penalties, that is not--that is something they are
paying attention to. That is the whole intent of it in terms of
when courts do that. However, you can't deny what Ms. Ifill
said--that--when your batting average is nine out of 10 for
jury trials, there aren't many trial lawyers that can really
claim that kind of success rate.
And so, again, it is a gray area in many of these questions
that are here today. And it was somewhat helpful to get the--
you know, very helpful in terms of what the witnesses
testified. But again, I don't think it had the right balance,
to be perfectly honest. And I think that is unfortunate. But
again, hopefully, you know, the subcommittee will use this
information in a positive way so that I think we get to the
place where everybody wants to be. Again, the witnesses have
said they agree with the mission of the agency, which is to
eradicate discrimination in this country once and for all.
And also to protect people. But we also--it is a balancing
act. And that is really the never-ending struggle that we have
to go through. But I do think if there was enough overlap, if
you really read everybody's testimony closely, to see that, you
know, there really is more common ground than, I think,
division that is here in this room. And, hopefully, in that
spirit we can, again, get to the place that we all want to be.
Which is a society free of discrimination, but that also
provides for the public safety of its citizens.
And with that, I yield back.
Chairman Walberg. I thank the gentleman. And I would concur
that I think there is plenty of agreement in this room. It is
the process by which we set priorities that move forward. And
that is the issue. Priorities that go as far as just simple
misunderstanding, confusion, or disagreement to priorities that
deal specifically with life and death itself. And that is, of
course, our purpose in doing oversight in this Subcommittee.
It will never be perfect, as long as humans are involved
with all the processes. But we want to move forward. Certainly
every American deserves a fair shot at finding a job, every
American. Every American, regardless of age, disability, sex,
religion or race--every American deserves a fair shot at
finding a job.
And that should be the preeminent responsibility of the
EEOC. But there are concerns. When we read--let me just read
them again. The 6th Circuit Court of Appeals recently wrote, as
I said in my opening statement and I quoted--``EEOC brought
this case on the basis of homemade methodology, crafted by
witnesses''--these are strong words--``crafted by a witness
with no particular expertise to craft it, administered by
persons with no particular expertise to administer it, tested
by no one and accepted only by the witness himself.''
Another case stated that the EEOC case was a theory in
search of facts to support it. Doing their basic job is--I
don't think there is much disagreement here. But when we see
them fishing for opportunities to make a case, that is a
concern to us. Humanity and its amazing diversity offers
challenges that seem to mandate the acquiring of good counsel.
So to hear, subsequent to our hearings when we had Ms.
Berrien in the room by herself to testify, and subsequently
under our questioning and requests--to see those really not
dealt with in that ensuing time to the present is a concern.
To hear that the public, and specifically victims and their
families and those with concern, were not brought into the room
to give valid testimony, to give valid counsel, to give valid
direction on what is necessary to make this EEOC work well for
employer and employee alike, that is a concern. And to have
guidance that is confusing and out of the realm of reality and
what people deal with on both sides of the ledger in the real
world is a concern to us. And so this will continue to be a
process.
This is just the second. And it does give us an indication
of what could be done if we make this a priority. To do the
oversight that is necessary, but to do it in a helpful,
positive, constructive way to move ourselves forward.
I would also make mention, as my good friend and colleague
brought up the third or fourth time, as well, that we should
have had Ms. Berrien in the room again, or EEOC represented
again. Well, there was the opportunity for the minority to
request her to testify here. This, again, in our mind was an
opportunity to talk to the assertions that she had made
earlier.
And I hope that this panel has given that opportunity, and
we will see, as we move forward, how the EEOC addresses our
concerns and addresses the concerns expressed in this
Subcommittee hearing today.
Having said that, there being no further business for this
Subcommittee the Committee stands adjourned.
[Additional Submissions by Mr. Courtney follow:]
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[Additional Submissions by Olson follow:]
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[Additional Submissions by Mr. Walberg follow:]
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[Whereupon, at 11:13 a.m., the subcommittee was adjourned.]