[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

                               __________

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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--
    [The information follows:]
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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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    [Whereupon, at 11:13 a.m., the subcommittee was adjourned.]