[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
H.R. 4959, EEOC TRANSPARENCY AND
ACCOUNTABILITY ACT, H.R. 5422,
LITIGATION OVERSIGHT ACT OF 2014,
AND H.R. 5423, CERTAINTY IN
ENFORCEMENT ACT OF 2014
=======================================================================
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, SEPTEMBER 17, 2014
__________
Serial No. 113-67
__________
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,
Lou Barletta, Pennsylvania Northern Mariana Islands
Joseph J. Heck, Nevada Frederica S. Wilson, Florida
Mike Kelly, Pennsylvania Suzanne Bonamici, Oregon
Susan W. Brooks, Indiana Mark Pocan, Wisconsin
Richard Hudson, North Carolina Mark Takano, California
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 September 17, 2014............................... 1
Statement of Members:
Courtney, Hon. Joe, Ranking Member, Subcommittee on Workforce
Protections................................................ 8
Prepared statement of.................................... 10
Walberg, Hon. Tim, Chairman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 7
Statement of Witnesses:
Clements, Lynn, A. Director, Regulatory Affairs, Berkshire
Associates, Inc., Columbia, MD............................. 12
Prepared statement of.................................... 14
Dreiband, Eric, S., Partner, Jones Day, Washington, DC....... 42
Prepared statement of.................................... 44
Foreman, Michael, L., Director, Civil Rights Appellate
Clinic, Pennsylvania State University, Dickinson, The
Dickinson School of Law, State College, Pa................. 28
Prepared statement of.................................... 30
Lloyd, William, F., General Counsel, Deloitte LLP, New York,
NY......................................................... 21
Prepared statement of.................................... 23
Additional Submissions:
Mr. Courtney:
Appendix A: Report, Public Outreach and Education Efforts
Concerning EEOC Guidance on Arrest on Convictions
Records................................................ 75
Appendix B: The Unvarnished Truth: 2014 Top Trends in
Employment Background Checks........................... 92
Letter dated Oct. 9, 2014 from Cox, Todd, A., Director,
Office of Communications and Legislative Affairs, Equal
Employment Opportunity Commission...................... 120
Fudge, Hon. Marcia, L., a Representative in Congress from the
State of Ohio:
Prepared statement of.................................... 139
Chairman Walberg:
Letter dated Sept. 16, 2014 from Hartman Sims, Celia,
Vice President, Government Relations, Knowledge
Universe............................................... 4
Letter dated Sept. 16, 2014 from Lucas, M. A., Executive
Director, Early Care and Education Consortium.......... 6
Letter dated Sept. 17, 2014 from nineteen stakeholders... 59
Letter dated Sept. 25, 2014 from Dombi, William, A., Vice
President for Law, National Association for Home Care &
Hospice................................................ 142
Letter dated Oct. 1, 2014 from Johnson, Randel, K.,
Senior Vice President, Labor, Immigration and Employee
Benefits............................................... 150
Letter dated Oct. 22, 2014 from Heriot, Gail, Member,
United States Commission on Civil Rights............... 156
H.R. 4959: EEOC TRANSPARENCY AND
ACCOUNTABILITY ACT; H.R. 5422: LITIGATION
OVERSIGHT ACT OF 2014; AND H.R. 5423
CERTAINTY IN ENFORCEMENT ACT OF 2014
----------
Wednesday, September 17, 2014
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and the Workforce
Washington, D.C.
----------
The subcommittee met, pursuant to call, at 10:03 a.m., in
Room 2175, Rayburn House Office Building, Hon. Tim Walberg
[Chairman of the subcommittee] presiding.
Present: Representatives Walberg, Kline, Rokita, Hudson,
Courtney, Fudge, Pocan, and Takano.
Staff present: Molly Conway, Professional Staff Member; Ed
Gilroy, Director of Workforce Policy; Callie Harman, Staff
Assistant; Christie Herman, Professional Staff Member; Nancy
Locke, Chief Clerk; James Martin, Professional Staff Member;
Daniel Murner, Deputy Press Secretary; Brian Newell,
Communications Director; Krisann Pearce, General Counsel;
Lauren Reddington, Deputy Press Secretary; Molly McLaughlin
Salmi, Deputy Director of Workforce Policy; Alissa Strawcutter,
Deputy Clerk; Juliane Sullivan, Staff Director; Loren Sweatt,
Senior Policy Advisor; Alexa Turner, Legislative Assistant;
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; and Leticia Mederos, Minority Director of
Labor Policy.
Chairman Walberg. A quorum being present, the Subcommittee
on Workforce Protections will come to order. Good morning. Let
me begin by welcoming our guests and thanking our witnesses for
joining us today. We will discuss a number of legislative
proposals that would bring greater transparency and
accountability, I trust, to the Equal Employment Opportunity
Commission (EEOC).
We are here because every member of this Committee
recognizes the EEOC as a vitally important agency. It has a
responsibility to protect the right of all workers to a fair
shot at employment opportunities and a workplace free of
discrimination. That is what America is about. This is a
fundamental human right each and every one of us holds dear. No
one should be denied a job, have their wages cut, or passed
over for a promotion because of their race, their gender,
religion, or disability. We are here because we want the EEOC
to do its job and, more importantly, to do its job effectively.
That is why, in recent months, we have made oversight of
EEOC a priority. Because we know men and women are being
discriminated against. We know bad actors would rather put
their own hateful prejudice before the talent and the
experience of each individual worker. It isn't right, and it is
EEOC's mission to help stop that from happening. Unfortunately,
in recent years the EEOC has shifted its focus away from that
vital mission. Instead, it has spent a great deal of time and
resources advancing a deeply flawed enforcement and regulatory
agenda.
Employers have fallen under EEOC's intense scrutiny without
any allegation of employment discrimination. Charges are being
filed in federal court with little to no evidence of
wrongdoing. Federal judges have harshly and appropriately
criticized the agency for its shoddy legal work. Each day, the
agency harasses employers without cause, and every case tossed
out of court for legal malpractice is another lost opportunity
to help victims of employment discrimination. It means the
veteran, the injured and disabled, while serving our country,
will continue waiting for his or her day in court. It means the
single mom who worked long and hard to earn a promotion will
continue waiting for her day in court.
More than 70,000 individual complaints are sitting in front
of the Commission. The backlog represents thousands of private
sector workers who believe their rights were violated and who
are waiting anxiously for the Commission to do its job. As the
old saying goes, justice delayed is justice denied. It is time
to stop denying these men and women the justice they deserve.
Not only is the EEOC dropping the ball with its misguided
enforcement priorities, it is also pursuing a regulatory scheme
that is making it more difficult for employers to protect
employees and consumers.
In recent years, states and localities have adopted
policies to protect Americans in vulnerable situations that
come in contact with workers, such as at home and in the
classroom. The EEOC has eviscerated these efforts. Quite
simply, the agency's edict restricting the use of criminal
background checks is putting people in harm's way, including
women and children. It is time the agency changed course, and
that is precisely what the legislation before us is intended to
do. Among other provisions, the proposals will help shine more
sunlight on EEOC activities, compel the agency to work with
employers in good faith to resolve complaints, force the
commissioners to do their job and oversee the agency's
enforcement actions, and provide a safe harbor to employers
complying with federal, state and local mandates, such as laws
requiring criminal background checks during the hiring process.
These are common sense reforms and should enjoy
overwhelming bipartisan support. By supporting the legislation,
you are supporting transparency at a vitally important federal
agency. By supporting the legislation, you are supporting the
ability of states to promote a safe and responsible workforce.
By supporting the legislation, you are supporting an effort to
get this agency back on track to better protect the rights of
America's workers. I urge my colleagues to support a more
effective, accountable, Equal Employment Opportunity Commission
by supporting this legislation.
I would like to thank my colleague, Representative Hudson,
for his leadership on this important issue. Again, we are
grateful to our witnesses for joining us, and I look forward to
our discussion.
Before I recognize the senior Democrat of the Committee, I
would like to ask for unanimous consent to include in the
record letters from interested stakeholders supporting the
bills we are discussing today, including letters from
KinderCare learning centers and the Early Care and Education
Consortium in support of H.R. 5423, the Certainty in
Enforcement Act of 2014.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Walberg. With that, I will now yield to my friend
and 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. Let me begin by welcoming our guests and thanking our
witnesses for joining us. Today we will discuss a number of legislative
proposals that would bring greater transparency and accountability to
the Equal Employment Opportunity Commission.
We are here because every member of the committee recognizes the
EEOC is a vitally important agency. It has a responsibility to protect
the right of all workers to a fair shot at employment opportunities and
a workplace free of discrimination. This is a fundamental human right
each and every one of us holds dear. No one should be denied a job,
have their wages cut, or be passed over for a promotion because of
their race, gender, religion, or disability.
We are here because we want the EEOC to do its job, and more
importantly, to do its job effectively. That is why in recent months we
have made oversight of EEOC a priority, because we know men and women
are being discriminated against; we know bad actors would rather put
their own hateful prejudice before the talent and experience of each
individual worker. It isn't right and it is EEOC's mission to help stop
it from happening.
Unfortunately, in recent years, the EEOC has shifted its focus away
from that vital mission. Instead, it has spent a great deal of time and
resources advancing a deeply flawed enforcement and regulatory agenda.
Employers have fallen under EEOC's intense scrutiny without any
allegation of employment discrimination. Charges are being filed in
federal court with little to no evidence of wrongdoing. Federal judges
have harshly and appropriately criticized the agency for its shoddy
legal work.
Each day the agency harasses employers without cause and every case
tossed out of court for legal malpractice is another lost opportunity
to help victims of employment discrimination. It means the veteran,
injured and disabled while serving our country, will continue waiting
for his day in court. It means the single mom, who worked long and hard
to earn a promotion, will continue waiting for her day in court.
More than 70,000 individual complaints are sitting in front of the
commission. The backlog represents thousands of private-sector workers
who believe their rights were violated and who are waiting anxiously
for the commission to do its job. As the old saying goes, ``justice
delayed is justice denied.'' It's time to stop denying these men and
women the justice they deserve.
Not only is the EEOC dropping the ball with its misguided
enforcement priorities, it is also pursuing a regulatory scheme that is
making it more difficult for employers to protect employees and
consumers. In recent years, states and localities have adopted policies
to protect Americans in vulnerable situations who come in contact with
workers, such as at home and in the classroom. The EEOC has eviscerated
these efforts. Quite simply, the agency's edict restricting the use of
criminal background checks is putting people in harm's way, including
women and children.
It's time the agency changed course and that's precisely what the
legislation before us is intended to do. Among other provisions, the
proposals will help shine more sunlight on EEOC activities, compel the
agency to work with employers in good faith to resolve complaints,
force the commissioners to do their jobs and oversee the agency's
enforcement actions, and provide a safe harbor to employers complying
with federal, state, and local mandates, such as laws requiring
criminal background checks during the hiring process.
These are commonsense reforms that should enjoy overwhelming
bipartisan support. By supporting the legislation, you are supporting
transparency at a vitally important federal agency. By supporting the
legislation, you are supporting the ability of states to promote a safe
and responsible workforce. By supporting the legislation, you are
supporting an effort to get this agency back on track to better protect
the rights of America's workers.
I urge my colleagues to support a more effective, accountable Equal
Employment Opportunity Commission by supporting the legislation. I
would like to thank my colleague, Representative Hudson, for his
leadership on this important issue. Again, we are grateful to our
witnesses for joining us and I look forward to our discussion.
Before I recognize the senior Democrat of the subcommittee, I would
like to ask for unanimous consent to include in the record letters from
interested stakeholders supporting the bills we are discussing today,
including letters from KinderCare Learning Centers and the Early Care
and Education Consortium in support of H.R. 5423, the Certainty in
Enforcement Act of 2014.
With that, I will now yield to my colleague, Representative Joe
Courtney, for his opening remarks.
______
Mr. Courtney. Thank you, Chairman Walberg, and thank you to
all the witnesses for finding time to join us here today. And
again, at the outset just so I don't forget, I would just ask
unanimous consent to submit a statement from Congresswoman
Marcia Fudge, who is over at the Agriculture Committee. They
are having a hearing today that conflicts with her attendance,
but she was very adamant she wanted to make sure her passionate
comments are entered for the record.
[The statement of Ms. Fudge follows:]
Fudge, Hon. Marcia, L., a Representative in Congress from the State of
Ohio
Chairman Walberg, Ranking Member Courtney, and members of the
Committee:
I appreciate the opportunity to submit this statement for the
record to express my opposition to this package of bills offered by the
majority. These bills are aimed squarely at stifling the work of the
Equal Employment Opportunity Commission (EEOC).
Fifty years ago we passed the Civil Rights Act of 1964, which
established the EEOC. When employees believe they have been
discriminated against at work, they rely on this Commission to
investigate the merits of each allegation to the fullest extent.
Although litigation is a critical component to the success of the
EEOC's mission to stop and remedy unlawful employment discrimination,
it is the last stage in a process that includes multiple attempts to
resolve an allegation of discrimination. In fact, the EEOC has been
able to consistently obtain monetary and nonmonetary relief for victims
in 90% of its cases.
The package of bills proposed by the majority each place grave
limitations on the ability of the EEOC to achieve its goals. While the
intent of these bills is to prevent the EEOC from ``overreach'', the
end result will simply make it harder for the agency to fulfill its
statutory duties through administratively burdensome and duplicative
information gathering. Of the most egregious bills offered, however, is
H.R. 5423, The Certainty in Enforcement Act of 2014.
If enacted H.R. 5423 would amend Section 703 of the Civil Rights
Act, going far beyond background checks and criminal background checks,
to allow states and localities to exploit requirements currently
protected under the Voter Rights Act. In effect, states and localities
would be exempt from Title VII employment discrimination liability.
This is clearly a step backward in our civil rights laws.
Tasked with enforcing the federal laws which combat illegal
discrimination against an employee on the basis of race, color,
religion, sex, national origin, age, disability or genetic information,
the EEOC has drastically expanded the diversity of America's workforce.
It is my hope that as the Committee hears from today's witnesses, my
colleagues will recognize the harm these bills will have on employers
and businesses across the country.
______
Chairman Walberg. Hearing no objection, and appreciating
these comments, they will be entered.
Mr. Courtney. Thank you, Mr. Chairman. Mr. Chairman, this
summer we celebrated the 50th anniversary of the 1964 Civil
Rights Act, one of the most significant steps in the fight for
equality in this nation's history. Title VII of this landmark
law outlaws workplace discrimination on the basis of race,
color, religion, sex, or national origin. These provisions help
ensure that American workers are judged on the work they do,
not on who they are, where they are from or what they look
like. Yet even with all the progress we have made in the last
50 years, there is much more work to be done.
Too many Americans suffer from discrimination by their
employer even today. For example, just last year there were
nearly 100,000 new charges of discrimination filed with the
EEOC, including 1,019 Equal Pay Act charges and over 67,000
Title VII charges. I was hopeful when the subcommittee began to
examine the work of EEOC last year we would look at ways to
join together to strengthen our civil rights laws and build
upon the critical improvements made through measures like the
Americans With Disabilities Act amendments and the Genetic
Information Nondiscrimination Act. Instead, I would argue, we
are wasting time here with a set of misguided bills that impede
the operations of the EEOC and attempt to gut Title VII,
turning the clock back on civil rights protections enacted more
than 50 years ago.
These bills would decimate the EEOC's ability to safeguard
American workers from discrimination, violate long-standing
rules regarding attorney/client confidentiality and do a great
disservice to the nation. We just heard opening comments
talking about how justice delayed is justice denied. If you
look at what these bills do, and I am 27 years as a litigator
before I came to Congress, in the name of transparency it would
cripple the ability of a client of the Commission to deal with
their attorney in terms of engaging in any kinds of
administrative action or litigation strategy. It would, in the
name of oversight, basically force the Commission to
micromanage every decision in terms of commencing litigation.
How that, on earth, would end delayed process makes any sense,
again, I think just common sense tells you that would add
additional steps and delay in terms of the agency being able to
execute its duty.
And lastly, 5423--which basically turns the federal
supremacy clause on its head and puts state laws as a
preemptive safe harbor for employers--in my opinion, on the
50th anniversary of the Civil Rights Act, is grotesque. I mean,
this is allowing a race to the bottom in terms of states who
don't--haven't stepped up and enacted laws to protect people
from racial discrimination, from gender discrimination. And
those states exist out there. And to basically empower them to
override the national commitment that we made 50 years ago to
uphold equal treatment under the law for people who are simply
trying to get ahead in their--in life--as employees. It is just
unbelievable to me.
The process that we are engaged in here today, sadly, is
par for the course in terms of the way this subcommittee has
operated. Our side got notice of this hearing eight days ago.
The 14-day courtesy rule for the Commission, which is well
understood--you know, we know that for the last three and a
half years--was deftly avoided by the majority. We get one
witness that we can invite to testify, and I thank Mr. Foreman
for being here to, again, in an unbalanced lineup, defend a
position which I think, you know, we will hear loud and clear
here today. But, you know, what is missing here today is the
agency.
And all we had to do was, frankly, pick up the phone and
call our side with enough notice and we could have accommodated
that. And actually had a real dialogue today to talk about what
is actually happening out there with the department. What I
think we are gonna hear is that despite all the claims of, you
know, overzealous litigation and ineffective outcomes, we are
going to see an agency which did great work in 2013 in terms of
recovering damages for workers who were discriminated against.
That the number and percentage of cases that went all the way
to litigation is less than 1 percent. So, frankly, we are
chasing a problem which I am--certainly, from the standpoint of
Congress doesn't exist.
If there are individual cases out there where people are
unhappy with the agency, I think all of us are more than happy
to accept those calls, accept that mail, intervene with the
Secretary. You know, the Chairman knows we have had two
instances this year where we have been successful in terms of
getting the Secretary to pull back cases of overzealous
enforcement of various laws. So it is not like we are dealing
with an agency that refuses to respond or listen to reasonable
points of view in terms of criticisms of the way they operate.
So, you know, I mean, we have 72 hours left before--
everybody in this building knows we are going home until after
the election. So we are bringing up legislation which, you
know, it is just not the appropriate response to any of the,
maybe, concerns that people are expressing here today to
actually talk about passing a bill which would short-circuit a
case that is pending before the Supreme Court. I mean, it is
just--it is embarrassing, from my standpoint. This is not what
Congress should be focused on right now in terms of people
across this country who are struggling in terms of advancing
themselves. And clearly, the middle class and working families
are struggling in terms of a tough economy but, frankly, we
should be knocking down the last remaining barriers to people
that they face in terms of racial discrimination, gender
discrimination, age discrimination.
That should be the focus of this subcommittee. So, again,
we look forward to the witnesses' testimony. And, again, we
hope, at some point, you know, we are gonna sort of realize
that we are just sort of grinding our gears here with these
types of hearings. And, hopefully, we can try and come up with
a new model, if not in the lame duck session, with the next
Congress so that we can, as a nation, take that 50th
anniversary and celebrate it the right way--which is to advance
equal treatment under the law under Title VII in the Civil
Rights Act.
I yield back.
[The statement of Mr. Courtney follows:]
Prepared Statement of Hon. Joe Courtney, Senior Democratic Member,
Subcommittee on Workforce Protections
Good morning. Thank you Mr. Chairman. And thank you to the
witnesses for being here.
This summer we celebrated the 50th anniversary of the 1964 Civil
Rights Act, one of the most significant steps in the fight for equality
in this nation's history.
Title VII of this landmark law outlaws workplace discrimination on
the basis of race, color, religion, sex, or national origin. These
provisions help ensure that American workers are judged on the work
they do - not on who they are, where they are from, or what they look
like.
Yet, even with all the progress we've made in the past 50 years,
there is more work to be done as too many Americans suffer from
discrimination by their employer even today. For example, just last
year there were nearly 100,000 new charges of discrimination filed with
the Equal Employment Opportunity Commission (EEOC)--including 1,019
Equal Pay Act charges and over 67,000 Title VII charges.
I was hopeful that when the subcommittee began to examine the work
of the EEOC last year, we would look at ways to join together to
strengthen our civil rights laws and build upon the critical
improvements made through measures like the Americans with Disabilities
Act Amendments and the Genetic Information Nondiscrimination Act.
Instead, we are wasting valuable time with a set of misguided bills
that impede the operations of the EEOC, and attempt to gut Title VII,
turning back the clock on civil rights protections enacted more than 50
years ago. These bills would decimate the EEOC's ability to safeguard
American workers from discrimination, violate longstanding rules
regarding attorney-client confidentiality, and do a great disservice to
the nation.
We should instead be finding opportunities to work together to
bolster this nation's civil rights laws, focusing on legislation that
combats prejudice and works to ensure that no person faces
discrimination in the classroom or workplace because of their sexual
orientation or gender identity. The Fair Employment Protection Act,
Paycheck Fairness Act and Employment Non Discrimination Act would all
help to strengthen our civil rights laws and should be the focus of
this hearing.
Thank you Mr. Chairman, and thanks again to our witnesses for your
participation. I yield back the balance of my time.
______
Chairman Walberg. I thank the gentleman, and I detect a
disagreement between you and me on this issue. But on
Constitution Day, we are doing our constitutional
responsibility. We have not been given a vacation yet. And I
think that it is good that we are here and it is good to have
disagreements. And we hopefully can work to satisfactory
conclusions. And that means we continually work.
It is now my pleasure to introduce our panel of
distinguished witnesses. First, Ms. Lynn Clements is director
of regulatory affairs at Berkshire Associates of Columbia,
Maryland. Prior to joining Berkshire Associates, she served in
several positions at the Department of Labor and the Equal
Employment Opportunity Commission, including as acting
director, deputy director of the policy division for the Office
of Federal Contract Compliance Programs. Welcome.
Mr. William Lloyd serves as general counsel for Deloitte
LLP in New York, New York. As general counsel, Mr. Lloyd is
responsible for managing the organization's legal affairs,
including governance, employment litigation, and regulatory
matters. Thank you for being here.
Mr. Michael Foreman is clinical professor of law and
director of the Civil Rights Appellate Clinic at Penn State
University's Dickinson School of Law in Carlisle, Pennsylvania.
Mr. Foreman focuses on appellate representation in civil rights
issues and employment discrimination. He has previously served
as acting deputy general counsel for the U.S. Commission on
Civil Rights. Welcome.
Mr. Eric Dreiband is a partner at Jones Day law firm in
Washington, D.C. From 2003 to 2005, he served as the general
counsel of the Equal Employment Opportunity Commission. Prior
to his EEOC service, Mr. Dreiband served as deputy
administrator of the U.S. Department of Labor's Wage and Hour
Division. Welcome.
Thank you all for being here. Before I recognize each of
you to provide your testimony, let me briefly explain our
lighting system, which I think is familiar to you. If you have
been on the highway, you have had red, green, and yellow
lights. Green gives you your four minutes to speak, yellow
gives a warning that a minute is left, and red we hope that you
wrap up your remarks as quickly and concisely as possible. I
will hold our Committee members to the same in asking questions
of you, following your statements. Again, we will each be given
five minutes to ask the questions of you, following your five
minutes of testimony.
And so now let me begin my recognizing Ms. Clements for
your five minutes.
Press the button on your microphone, please, there.
STATEMENT OF MS. LYNN A. CLEMENTS, DIRECTOR, REGULATORY
AFFAIRS, BERKSHIRE ASSOCIATES, INC., COLUMBIA, MD
Ms. Clements. Good morning, Mr. Chairman and members of the
subcommittee. My name is Lynn Clements. I am the director of
regulatory affairs at Berkshire Associates, a certified small
business enterprise that helps other small businesses comply
with their equal employment opportunity and affirmative action
obligations. I very much appreciate the opportunity to share my
perspectives with you today, and ask that my written testimony
also be entered into the record.
For almost half of my career, I served as a staff member at
the EEOC and the Office of Federal Contract Compliance
Programs, where I joined a dedicated group of career staff who
tirelessly work to open the door of opportunity. I have a deep
respect for my former colleagues, these agencies, and their
mission. It is my experience that employers are similarly
dedicated to creating fair and inclusive workplaces and to
complying with the multitude of laws that they must follow.
This is increasingly a difficult task.
On an almost daily basis, I help employers answer real-life
questions about their employment decisions and hiring
practices. I have a better appreciation now for how difficult
it is for an employer, especially a small employer, to
understand and comply with the lengthy documents, policy
documents, and rules that we publish as regulators. My
experiences have shown me that an enforcement agency can only
be truly effective when it is respected by the public it serves
and regulates. A robust and thoughtful, deliberative process
and neutral fact-finding are critical to earning that respect.
Unfortunately, as an outsider now looking in, I believe that
the EEOC has strayed from several of its original good
government mandates.
Increasingly, I have found that the agency does not always
investigate or conciliate in good faith, even though such
efforts are statutorily required. I have worked with employers
both large and small who have endured individual charge
investigations spanning several years; surprise notice of a
charge by hand delivery, with a request for immediate access by
an army of investigators, much like an FBI raid; requests for
extensive information, immediately followed by a
predetermination settlement offer that sends a very clear
message pay up or endure a burdensome investigation; and
findings of class discrimination without a class investigation.
Most employers and, indeed, most employees are surprised to
learn that the commissioners do not deliberate on the filing of
most lawsuits. Understandably, the public expects that the full
force of the federal government will only be brought to bear
after careful deliberation.
In the case of the EEOC, Congress determined that the
deliberative process should be handled by a group of five
officials with diverse backgrounds, experiences, and
perspectives. When I was at the Commission, it generally filed
about 400 lawsuits each year. Due to the delegation of
authority to its general counsel, also presidentially
appointed, the commissioners generally reviewed between 50 and
75 of these litigation proposals.
I understand, however, that the current Commission only
reviews a handful of cases; as few as 15 in almost a recent
three year period. In the business world, a similar delegation
of authority would really be the equivalent of unveiling a new
product without the CEO ever even knowing about it. Quite
simply, placing the imprimatur of the whole Commission on a
proposed legal theory garners a level of respect by the
regulated community that is simply not possible when decisions
are made by a single general counsel or regional attorney, no
matter their skill.
Perhaps most troubling is the impact on policymaking. Make
no mistake about it, the agency is making policy when it
decides to litigate. Thus, the process by which the EEOC
arrives at those decisions is just as important as whether the
agency ultimately prevails. The Commission's efforts in one
particular area are instructive. In April of 2012, the
Commission issued policy guidance regarding an employer's use
of arrest and conviction records. Although this policy guidance
was voted on, it was not subject to public comment.
Unfortunately, the Commission failed to provide a clear path
for employers, particularly those who must weigh the competing
interests of the Commission's position and other state and
local laws aimed at public safety.
What this means is that those hard decisions will now be
made through litigation by the Commission, some of which may
never be reviewed by the Commissioners before it is voted on.
Ensuring equal opportunity is an important federal goal. How
this work is accomplished matters, and shining more sunlight on
the agency will help it grow and succeed at its mission of
ensuring equal employment opportunity.
Thank you.
[The statement of Ms. Clements follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Walberg. Thank you.
Mr. Lloyd, we recognize your five minutes.
STATEMENT OF MR. WILLIAM F. LLOYD, GENERAL COUNSEL, DELOITTE
LLP, NEW YORK, NY
Mr. Lloyd. Thank you. Chairman Walberg, Ranking Member
Courtney, members of the Committee--
Chairman Walberg. I am not sure your mic is on there.
Mr. Lloyd. There we go. Sorry, I am a novice.
Chairman Walberg, Ranking Member Courtney, members of the
Committee, thank you for inviting me to testify today. I am
Bill Lloyd, the general counsel of Deloitte LLP. I am grateful
for the invitation to testify because today's hearing is
focused on a number of bills that I believe would improve the
processes within, and the accountability of, the EEOC.
Deloitte is one of the world's largest professional
services firms, providing audit, tax, and advisory services to
individuals, businesses of all sizes, and to federal, state and
local governments and community organizations. We have roughly
65,000 people in Deloitte, and about 4 percent of those are the
owners of the business: partners. I want to make it clear that
Deloitte strongly supports the goals of eliminating workplace
discrimination and fostering true equality of opportunity. We
also strongly support the EEOC's mission and we appreciate the
dedication of its staff. Deloitte is proud that we have
consistently been recognized as a leader in inclusion and in
developing highly successful women and minorities in our large
firm.
Although we are strong supporters of the EEOC's mission,
our recent experience with the EEOC suggests that its processes
and transparency could use some improvement. We need to ensure
that the EEOC enforces its important mandate in ways that are
consistent with what Congress contemplated in the respective
statutes that the EEOC is tasked to enforce. And we need to
ensure that important decisions about EEOC enforcement policy
and allocation of scarce resources are made by the
commissioners who are appointed by the President and confirmed
by the Senate.
The EEOC staff has recently challenged the fundamental
structure of Deloitte's business, our decision to organize as a
limited liability partnership. The staff has alleged that
Deloitte is not a true partnership and, therefore our
retirement policy for partners violates the Age Discrimination
in Employment Act. The impact of the EEOC's legal theory raises
significant economic and policy questions for Deloitte and all
limited liability partnerships across the country, which will
negatively impact many businesses. Congress did not grant
jurisdiction to the EEOC to act on behalf of owners of
businesses. Yet that is exactly what the EEOC is doing.
Deloitte is a true partnership, and our partnership
agreements and governance processes reflect that. State
professional regulations require that we conduct our business
as a partnership. Deloitte's partners voluntarily enter the
partnership agreeing to retire at age 62, and each partner is
highly compensated both during the period of partnership and
after retirement. In fact, many partners choose to retire
before age 62. Thus, the EEOC is seemingly advocating on behalf
of this group of people in lieu of seeking out true victims of
discrimination, the very people about whom Mr. Courtney spoke.
For every case of questionable validity that the EEOC
brings, it requires that the agency forego many worthy cases of
discrimination on behalf of individuals who have fewer
resources to pursue grievances and genuinely need the
protection of regulators in the government.
I am also concerned by the Commission's extensive
delegation of authority to the general counsel to initiate
litigation. I am not a labor attorney, and I was very surprised
to learn that the commissioners do not review the overwhelming
majority of cases filed by the EEOC. After all, Title VII
permits only the five-member commission to bring a civil
action.
But my understanding is that, in practice, the general
counsel determines whether any particular case is subject to
review by the Commission. This practice, in my view, should
concern all legislators and taxpayers. In the matter involving
Deloitte, the EEOC has been conducting a directed investigation
since 2010. We are concerned that if conciliation fails the
general counsel will file a lawsuit under the delegation of
authority without consideration and a vote of the
commissioners, even though a similar matter involving a similar
partnership came before the commissioners last year, and the
commissioners elected not to file litigation.
This is not only a matter of great public controversy but,
given the powers and rights of Deloitte's partners, it is a
novel interpretation of law that the Commission itself clearly
should consider and approve before any litigation is commenced.
We are not aware of any retired partner who has complained
to the EEOC about age discrimination at Deloitte. And
ironically, Deloitte's retiring partners are overwhelmingly
white males, while newly-admitted partners over the past decade
have been significantly more diverse. Eliminating the
retirement age would ultimately limit the partnerships
available to an increasingly diverse population of our
employees.
I thank the Committee for the opportunity to share our
perspective, and I will be happy to answer any questions. Thank
you.
[The statement of Mr. Lloyd follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Walberg. Thank you.
Mr. Foreman, we will recognize you now for your five
minutes.
STATEMENT OF MR. MICHAEL L. FOREMAN, DIRECTOR, CIVIL RIGHTS
APPELLATE CLINIC, PENNSYLVANIA STATE UNIVERSITY, DICKINSON
SCHOOL OF LAW, STATE COLLEGE, PA
Mr. Foreman. Thank you, Chairman Walberg, Ranking Member
Courtney, and members of the Committee for the ability to
testify on these pieces of legislation. I am sure there are
good purposes behind them but, as my testimony reflects, they
are premature, they are unnecessary. I think more importantly,
they distort the function of what Title VII was passed to do
and it will thwart any type of effective enforcement of the
federal laws.
Now, I know two of my colleagues that are testifying today,
and they both worked at EEOC. And they know first-hand the
ugliness of employment discrimination, and they know first-hand
that you need to have an effective enforcement agency to fight
that evil. They know that. We may not agree on much, but I
think we will agree on that point. Now, Mr. Dreiband said it
best. Notwithstanding EEOC's achievement, we have much work
ahead of us. Unlawful discrimination anywhere remains a threat
everywhere. Accordingly, we will continue to strive to obtain
meaningful relief for victims of discrimination and achieve
equality in the workplace.
They are his words when he was general counsel of the EEOC,
not mine. They were true then and they are true not--now. And
these bills would strip EEOC's enforcement ability. For
example, the Oversight Act would require a vote of
commissioners, a disclosure publicly of that vote, and that
vote would be posted within 30 days of starting of litigation.
Now some may say, well, why is that a problem? Because much of
that information is already available. Well, the reason it is a
problem because that would create an affirmative defense for
every employer in this country.
What if EEOC does not post? What if someone challenges the
vote? That is subject to discovery. That is not hysteria. That
is exactly what is happening in the Mach Mining case. The
employer community is arguing that is an affirmative defense.
And what is the remedy? The remedy is the case gets dismissed
and the innocent victims never see the light of day. And that
is what is troubling about those type of bills.
The Transparency Act would take resources--the limited
resources--the EEOC has, and turn them into a data reporting
and website management. There are so limited resources to fight
employment discrimination, they should be directed toward
fighting discrimination.
As Congressman Courtney pointed out, there are obvious
constitutional problems with exempting state and local
governments from Title VII. I give the example, in my written
materials, that it would basically overrule a case like Griggs
v. Duke Power--as it applies to state and local governments. It
is something we should not be doing at this time.
These are basically a remedy in search of a problem. There
is no pattern of EEOC abuse. If you look at the number of cases
EEOC litigates, they are doing a wonderful job. Their
enforcement record should be applauded and more enforcement
agencies should work like they do.
There are a few limited cases where they are sanctioned.
And that shows that there is a process in place. EEOC is
required to play by the same rules of all parties. And if they
act improperly in a limited number of cases, rule 11 exists and
there is a provision of Title VII that holds them accountable.
And they can be sanctioned. So that shows the system works. We
do not need to add another level of sanctions to EEOC thwarting
their ability to do their effective job.
And then finally, several of the, quote--``key parts'' of
this legislation are before the courts now. Mach Mining has
precisely the issue of what does the EEOC need to do in their
conciliation efforts and what happens if they do not do it.
That case has been briefed. My colleague, Mr. Dreiband, filed a
brief this week in support of the business community. The court
system has it, the Supreme Court will answer that question, and
we will know what that means under Title VII. There should not
be anticipatory legislation to deal with that.
Similarly, there is litigation in Texas that was filed
challenging EEOC's promulgation of the criminal enforcement
guidance. Let the judicial system work, and there will be a
determination of whether EEOC had that authority and what that
means. Don't short-circuit the process. And I would just end,
if I could, The Wall Street Journal, in their summary of sort
of this issue, made the quote about EEOC, ``It is just not
saber rattling anymore. The EEOC has shown that it means
business.'' Isn't that the EEOC that Title VII expected? And
isn't that the EEOC that every one of us wants--one that
enforces the law? And these bills would hamper that ability.
Thank you for your time, and I am available to take any
questions.
[The statement of Mr. Foreman follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Walberg. Mr. Foreman, thank you.
Mr. Dreiband, we recognize you for your five minutes.
STATEMENT OF MR. ERIC S. DREIBAND, PARTNER, JONES DAY,
WASHINGTON, D.C.
Mr. Dreiband. Good morning, Chairman Walberg, Ranking
Member Courtney, and members of the subcommittee. Thank you for
inviting me to testify today. My name is Eric Dreiband, and I
am a partner at the law firm of Jones Day here in Washington,
D.C. Mr. Chairman, as you noted, I previously served as the
general counsel of the United States Equal Employment
Opportunity Commission. And in that role, I was privileged to
work with Lynn Clements and many other talented and dedicated
EEOC officials. It is with this background that I appear today
at your invitation to speak about three bills that are pending
before this subcommittee.
First, I will start by discussing the Litigation Oversight
Act of 2014. This bill would ensure that the EEOC cannot bring
major or controversial litigation without a full up or down
vote by a majority of the EEOC's five-member bipartisan
Commission. Congress has vested the EEOC's attorneys with the
authority to appear for, and represent, the Commission in any
case in court, but to do so only at the direction of the
Commission. As a result, the Commission has historically
considered, deliberated about, and voted on whether to file
lawsuits recommended by the Commission's general counsel.
In recent years, however, the number and percentage of
litigation matters presented to the commissioners has
diminished significantly. According to one current EEOC
commissioner, the Commission voted on three of 122 lawsuits
filed during an entire year. These numbers give the impression
of a commission made up of potted plants and disinterested
bystanders.
The available evidence suggests that the current strategy
is not as effective as past practices. For example, the amount
of money recovered by the EEOC's litigation program in the last
two fiscal years is lower than at any point since the EEOC
started reporting this data. Moreover, the EEOC has recently
suffered several embarrassing losses. Several courts have
dismissed all, or significant parts of, several EEOC lawsuits.
Other courts have sanctioned the EEOC, and the taxpayers
are on the hook for the cost of these cases and for paying
sanctions. And these kinds of embarrassing losses and sanctions
damage the commission's credibility. The Litigation Oversight
Act may help restore the commission's oversight of the agency's
litigation program.
The second bill before this subcommittee, the EEOC
Transparency and Accountability Act, would provide for judicial
review of the EEOC's pre-suite conciliation efforts. The civil
rights laws generally authorize the EEOC to file a lawsuit only
after it has been unable to secure a pre-suit conciliation
agreement from a potential defendant. In December of 2013, a
U.S. court of appeals in Chicago became the first court to hold
that EEOC's compliance with this congressionally-mandated
obligation is subject to virtually no judicial review, and the
Supreme Court is now considering the issue.
The EEOC Transparency and Accountability Act would settle
the issue by statute. The bill would require the EEOC to engage
in bona fide conciliation, including by identifying its claims
and any putative victims thereof before EEOC files a lawsuit.
These provisions may preempt the sue first, ask questions later
mentality that has troubled several federal judges and led to
humiliating dismissals of several EEOC lawsuits.
The third bill pending before this subcommittee is the
Certainty in Enforcement Act of 2014. This bill would provide
that an employer does not violate the Civil Rights Act if it
complies with another federal, state or local law in particular
areas.
Some laws restrict employers from hiring persons with
criminal convictions, and the EEOC recently issued enforcement
guidance to suggest that such blanket hiring restrictions may
violate the Civil Rights Act. The Certainty in Enforcement Act
may provide a useful fix to this conflict in times--in many
times, employers feel like they are caught between choosing to
comply with one law and risk violating the Civil Rights Act.
Nonetheless, for purposes of greater clarity, the
subcommittee might consider a few amendments to the bill as it
is presently drafted. First, you may consider limiting the
bills to laws that require employers to conduct criminal
background checks or credit history checks. This seems to be
the primary concern of the bill.
Second, you might also consider limiting the bill to allow
employers to follow laws that are targeted to hiring practice
in certain safety-sensitive areas like health care and child
care, where people are serving very vulnerable individuals like
children and the sick and injured. Third, adding the language
that specifically addresses disparate impact liability--that
is, so-called unintended discrimination--may help clarify that
the Certainty in Enforcement Act is in no way intended to
sanction intentional discrimination.
Thank you for the opportunity to testify here today, and I
look forward to your questions.
[The statement of Mr. Dreiband follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Walberg. Thank you, and thanks to each of the
witnesses for your statements. And we look forward to those
being broadened under questioning. Before I move to recognize
my colleagues for questions, 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 such statements and other extraneous material referenced
during the hearing to be submitted for the official hearing
record.
I would also like to ask for unanimous consent to include
in the record a letter of support signed by 19 stakeholders for
all three bills we are discussing today, including professional
organizations, health care organizes, construction, food
service, you name it.
[The information follows:]
[Additional submission by Chairman Walberg follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Walberg. So without objection, hearing none, they
will be included in the record.
I will now recognize the Chairman of the full Committee,
Education and Workforce, the gentleman from Minnesota, Chairman
Kline.
Mr. Kline. Thank you, Mr. Chairman. Thanks very much to the
witnesses for being here today for your testimony.
Ms. Clements, let me start with you because I want to get
at this issue of preemption, federal law, state law, and all
that sort of thing that was raised by the Ranking Member and
others. The EEOC's criminal background checks guidance states
that the fact a criminal background check was conducted in
compliance with a state or local jurisdiction requirement does
not shield the employer from liability. That is your testimony,
and what we are talking about here. And yet there are numerous
federal, state, and local laws requiring the use of criminal
background checks.
For example, the Senate passed in March, and the House
passed this week, the Child Care and Development Block Grant
Act, which requires states to have policies and practices in
place requiring background checks for child care providers and
prohibiting employment in federally-funded child care programs
of those convicted of violent or sexual crimes. So in this
case, we passed, and we hope the President will sign and all
that, a law that requires states to have such practices and
policies in place. So how is a child care provider, or another
small business, supposed to choose between following state law
and subjecting itself to EEOC prosecution?
It just seems like that is really between a rock and a hard
place. I want to give you the opportunity to expand on that for
just a minute.
Ms. Clements. I absolutely agree with you. It is those
types of examples that really illustrate the difficult position
that the EEOC's enforcement guidance put employers in. It is a
Hobson's choice, with no good answer at this point. And really,
I would ask what exactly is an employer supposed to do if they
conduct the individualized assessment that is contemplated by
the EEOC's guidance and determine that the state or local
requirement is not job-related? They still have to follow it.
And if the EEOC's answer is that this will never happen, that
these types of requirements will always be job-related, then
they should have said so in the guidance so that employers
could avoid--especially small employers--could avoid this
costly individualized assessment.
I don't think these difficult decisions should be made on
the backs of private employers. They are simply trying to
follow the law. They don't make the law.
Mr. Kline. Thank you.
Mr. Lloyd, according to your testimony, in its reasonable
cause determination the EEOC demanded elimination of the
retirement provision, extension of offers to reinstate retired
partners, and the creation of a compensation fund for those
retirees forced to retire early. Could--we just probably have a
couple of minutes here on the clock. Could you sort of briefly
describe Deloitte's business model and what the effect of this
would be on that? And just--I am very concerned when you get
something like the EEOC dictating what your business model
should be. But explain why this is a problem.
Mr. Lloyd. Thank you, Chairman Kline. It is a big problem
for us. As I said, we have an ownership structure, partners who
are about 4 percent of our total population. And I could go
into great detail about why they are real partners. And we are
required to have that model. Not necessarily 4 percent, but to
be a partnership under various state regulations relating to
certified public accountants and the way they can organize.
Beyond that, the retirement system we have in place helps
ensure that we have appropriate succession planning, that we
can plan for the future. Because under many statutes, such as
Sarbanes-Oxley in the audit practice for example, we have to
rotate people into the positions of leading the audits for
independence purposes.
And thus, it is very important to us that we have virtual
certainty about how long people can serve in the role as
partner, these leadership positions of all sorts within the
firm, and plan so that we have orderly transitions and we groom
people to move into those positions to comply with the
regulations that we are subject to.
Mr. Kline. Okay, I am about to run out of time here, Mr.
Chairman.
I will yield back. Thank you.
Chairman Walberg. I thank the gentleman, and I recognize
the Ranking Member of this Committee, the gentleman from
Connecticut, Mr. Courtney.
Mr. Courtney. Thank you, Mr. Chairman.
Mr. Foreman, just to sort of focus for a second on the
background check guidance activity by the Commission. Again,
just for the record--and I am pretty sure you have followed
this pretty closely--but the Commission, as a whole, did
actually act on this. This was not something, again, that
delegated staff created in terms of that guidance. Isn't that
correct?
Mr. Foreman. Yes, that is correct.
Mr. Courtney. Yes, and it was a bipartisan vote of the
Commission. And again, it was trying to get at what is a real-
life impact out there, which is that criminal background checks
if not used, you know, sensibly, can have the net effect of
harming or excluding people from employment who--particularly
the African-American and Latinos. And, again, that is something
that the Commission studied before it moved forward. Isn't that
correct?
Mr. Foreman. Yes, absolutely. The data on that point is not
in dispute that if you implement either arrest records or
criminal background histories, and screen based upon that, you
are going to screen out statistically significant parts of
minority populations. I mean, the data is uncontroverble on
that.
Mr. Courtney. But it also made clear that employers are not
required to just ignore it entirely. I mean, there was clear
latitude that, you know, that sort of guidance allows for
common sense decision-making by employers. So that the nature
and gravity of prior criminal conduct, the time that has
elapsed, the nature of the job, and how--I mean, it all
provides safe harbor for employers who--you know, again, if
they have got somebody they know is a violent offender that
they should not be in a, you know, child care center or a
health care facility or, frankly, almost any employment
setting.
I mean, isn't that correct? I mean, they recognize common
sense opportunities for employers not to be helpless with
information they know about individuals.
Mr. Foreman. And absolutely in the guidance did not plow
any new ground. I mean, if I could just take a moment, it
actually started based upon a case called Green v. Missouri
Railroad, where they said you can take these into
consideration, but there needs to be an individual
determination. Does this really impact the persons to do the
job? EEOC then issued guidance that was approved by, then--now
associate justice Clarence Thomas, saying yes, that makes
perfect sense. The case went to the Third Circuit, El v. Septa.
And the Third Circuit said we would like more guidance from
EEOC on this so that we could actually defer.
And then EEOC does hearings and develops very detailed
guidance, but has its foundation in Green and what Associate
Justice Clarence Thomas said was good policy, and is simply out
there now so that employers know what the rules are.
Mr. Courtney. So, again, all I would just say is that, you
know, if there are issues that, you know, you feel are still a
problem out there, Ms. Clemens--I mean, frankly, you know, that
is something that I think that all of us up here are more than
happy to present to the Commission and support in terms of them
to reexamine or reevaluate how it is being implemented. But
5423 is a blunt instrument which even Mr. Dreiband's testimony
acknowledged, you know, kind of sets in motion a mechanism
which sweeps up a much more damaging path as far as the--what
it could do to individuals, who have nothing to do with the
issue of criminal background checks.
My few remaining seconds here. Mr. Foreman, can you talk
about the claim of litigation crisis again in terms of what the
real numbers are out there? I mean, we heard sue first, ask
questions later. I mean, again, what I am seeing is really
almost the opposite in terms of how much actually goes to
court.
Mr. Foreman. Well, again, the data is out there that EEOC
has done a tremendous job in recouping damages and filing all
suits. There are several cases that repeatedly get played back
as EEOC gone awry. And one thing I think this Committee really
needs to understand, if you talk about Kaplan, if you talk
about People Mart, I think Crist is one of those also. That all
of these bills would not have changed the outcome in those
cases at all. Why do I say that? Because Kaplan and Peoplemark
were approved by the commissioners. So it went through the
process and they approved that litigation.
And in Crist, I think also went through the system, but I
am not 100 percent sure on that. And as the conciliation
failure, EEOC's position is they engaged in good faith
reasonable negotiation and so it would not have changed the
outcome at all. But what it would do is provide another layer
of litigation and another cost, and prevent innocent victims of
discrimination from ever getting in the court if there is some
procedural dismissal on the case.
Thank you.
Chairman Walberg. I thank the gentleman. I recognize myself
now for my five minutes of questioning.
Mr. Dreiband, thank you for your comments. Thank you for
your suggestions, as well. That is what a subcommittee process
is for. And our full Committee chair will appreciate us doing
deliberative work here. But early this year I met with General
Counsel Lopez, and followed up with a request for documents
regarding EEOC's litigation policies. I had EEOC provide me
with all the class action and systemic complaints filed between
2009 and 2014. In that, I discovered that only 8 percent of
these cases were pursued through Commission approval.
Can you explain to the Committee how a Commission that has
designed to implement the nondiscrimination policies of EEOC is
barely involved in multiple plaintiff litigation?
Mr. Dreiband. Well, it has certainly been a change since my
time at the Commission. I think that the current approach has
essentially been to delegate, in practice and in fact, nearly
all authority to the general counsel to make a decision about
whether or not to go forward with a lawsuit. That is not how
the Commission operated when I served at EEOC. As Ms. Clements
noted, I sent dozens if not hundreds of cases to the Commission
for a vote. And I found that by doing that, it enabled us to
speak with one voice, to send a message to actual or putative
defendants, that the Commission's litigation was backed by the
full Commission. And I think the results speak for themselves.
I am flattered that Mr. Foreman saw fit to quote my remarks
at one time when I served as general counsel. But when I
served, with full support of the Commission, we recovered more
money for victims of discrimination through our litigation
program than ever in the history of the EEOC. And what we have
seen in the last couple of fiscal years is that both filings
are down, as well as recovery through the litigation program,
and down significantly to the lowest levels since the
Commission started reporting this data.
So, you know, the Commission is currently free to operate
how it wants to. The bills would require more involvement by
the Commission. And I suppose my question would be, for anybody
who opposes more Commission oversight in deliberation about
Commission litigation recommendations exactly what they think
these commissioners should do. I mean, the chair of the
Commission has the operational authority of the EEOC by
statute, but the other four commissioners have no operational
authority at all. They don't supervise investigations, they
don't direct litigation. All they do is vote on policy matters
presented to them by the chair on litigation matters presented
by the general counsel or, on occasion, subpoena enforcement
actions. And that is it.
Chairman Walberg. So, would you think that this potential--
this policy, as it is being carried out right now--speaking as
a former general counsel, creates the possibility of abuse of
power by the general counsel in this whole process?
Mr. Dreiband. Well, I think that the current general
counsel is a friend and former colleague of mine. And I think
he is well-intentioned and doing the best job he can do. I
don't--but I don't think, though, that having oversight by the
commissioners does anything other than strengthen the
litigation program by the Commission. It sends a message to the
public, to potential defendants, that the Commission stands
behind the decision to commit resources and to file the
lawsuit. And simply creates a review of potential litigation,
including some of these embarrassing losses that the Commission
has suffered lately that may or may not have occurred, of
course, as Mr. Foreman pointed out.
But in the same way that the grand jury reviews an
indictment presented by the prosecutor, the Commission has
served that function very well, certainly during my tenure and
at various other times in the history of the agency.
Chairman Walberg. Thank you. Let me move over.
Mr. Lloyd, recently EEOC investigated
PriceWaterhouseCoopers for including a mandatory retirement age
in its partnership agreements, sounding familiar to your
situation. The EEOC general counsel submitted that case to the
Commission, but the Commission by a three-to-two vote did not
approve litigation. Why is EEOC investigating Deloitte for the
same type of partnership agreement that PriceWaterhouseCoopers
has, when the Commission already decided the issue did not
merit litigation?
Mr. Lloyd. Mr. Chairman, I have to say I have no idea. I am
sorry that I can't answer that question.
Chairman Walberg. I figured that would be your first
response. But are legal issues any different in the two cases?
Mr. Lloyd. No, the legal issues are no different. If
anything, our partnership agreement provides for more
participation by partners than PriceWaterhouse's does. But
essentially, we are in the same business, we have the same
business model, we have the same partnership structure
generally. Our age is 62 for mandatory retirement, their age is
60. So in that sense, there is a slight difference. But we have
not been given, thus far, any notification of the basis of the
staff's determination that we violate the Age Discrimination
Act other than they believe any mandatory retirement policy
based on age is inappropriate.
Chairman Walberg. So then do you believe the Commission's
rejection of the PriceWaterhouseCoopers case set a precedent
the agency should follow unless it provides a compelling
explanation of why it is abruptly reversing course?
Mr. Lloyd. I do believe that, yes, sir.
Chairman Walberg. And that is the challenge that you have,
then, in dealing with something that is now seemingly a
precedent-setter. But going over what they have already said.
Mr. Lloyd. It is. And, you know, one thing that we very
much would like is an opportunity to discuss with the
commissioners themselves the reasons why they did not elect to
proceed against PriceWaterhouse and the reasons why they should
not elect to proceed against Deloitte.
Chairman Walberg. Okay, thank you. My time is up.
I now represent--I now ask the representative--where has he
gone? Oh, there he is, right here. Representative Takano, who
has stepped into the Ranking Member's position here, for your
five minutes of questioning.
Mr. Takano. Thank you, Mr. Chairman.
Mr. Foreman, could you comment on this colloquy on the role
of the Commission and Deloitte's interest in having it's
interests reviewed by the entire Commission? And maybe just
comment on what you think the role of the Commission ought to
be.
Mr. Foreman. Yes. And I will give my disclaimer that I am
not an expert on the facts of the specific case. But what I
think this represents, and what we have heard today, is that
everybody supports the discrimination laws except when they are
aimed at their client. And then they come before you and say it
is not fair that we are being targeted. And why do I say that?
And Chairman Walberg, you used the term ``precedent-setting.''
Here is the reason I say that. That case is based on a
precedent that was set by EEOC years ago, where they sued a law
firm--Sidley & Austin--arguing that their partners were
employees.
That was litigated--a litigation that was approved and
brought by my colleague, General Counsel--then-General Counsel
Dreiband, and approved by the Commission. So they had a policy
of doing exactly what they are doing with PriceWaterhouse. So
there is not some change of the rules. They are taking existing
precedent and challenging it. And at some point, the courts and
the Supreme Court will say are these individuals employees for
purposes of coverage, or are these employees partners?
Mr. Takano. Well, I want to shift topics a little bit. The
majority seems to be using the EEOC's recent guidance on
background checks as justification for acting on H.R. 5423. It
is my understanding that the EEOC guidance allowed for
flexibility based on the nature of the employment. I know that
we had some of this discussion with Mr. Courtney, but can you
elaborate on that? The scope of H.R. 5423 seems to go well
beyond the issue of background checks. What kinds of
repercussions could a bill of this breadth have on the EEOC?
Mr. Foreman. Again, and it was talked about earlier, if you
apply that bill as written it applies to intentional
discrimination, disparate impact discrimination. A state or
local government could pass a law that says women could not do
X. It would be exempted by--under that bill. Now, there is a
recognition that maybe it should be limited to criminal history
backgrounds, but even that presents a problem because you are
elevating local and state law over federal law. Title VII was
written to do exactly the opposite.
Mr. Takano. So as you covered in some of your testimony, I
am still curious about 5423, some of the problems it would
cause. In your opinion, if we went back to the quote, unquote--
``states rights schema'' to root out discrimination in the job,
what are some of the challenges that workers would face? And
you named a lot of them just now.
I am just curious. Mr. Lloyd, given Deloitte Touche's
commitment to the mission of the Commission, is H.R. 5423
something that you could support, knowing what you know now?
Mr. Lloyd. Sir, I think that we support all the bills that
are proposed. I think some of them could be improved, as Mr.
Dreiband suggested. But there are--there is guidance issued by
the EEOC that is problematic in practice. And we think that
things can be improved. The processes and guidance from the
EEOC can be improved, sir.
Mr. Takano. One last question. H.R. 4959 would mandate,
quote--``good faith efforts to endeavor'' to resolve charges
by, quote--``bona fide conciliation.'' In doing so, it would at
least, in part, deal with issues set forth by the Seventh
Circuit in EEOC v. Mach Mining, which is pending before the
Supreme Court. Should Congress be getting involved in this
issue? I think you already answered that, Mr. Foreman.
Mr. Foreman. My view is absolutely not. That we have a
Supreme Court, we have exactly that issue there. The business
community is making their arguments. The United States
government will be making their arguments. And probably by June
we will have a decision on what that conciliation provision
means in Title VII. Why change it now?
Mr. Takano. And what exactly do good faith and bona fide
mean, as used in this legislation?
Mr. Foreman. Well, that is part of the underlying
litigation. Why the Seventh Circuit said that you cannot
utilize that as an affirmative defense. Because, one, EEOC has
absolute discretion as to whether it fulfills--the settlement
fulfills the duty of Title VII. So is one more offer required,
is one more dollar required? And if EEOC says no, we are gonna
fail conciliation, is that bad faith conciliation? And the
court says you cannot adopt a workable standard, and that is
the reason we can't make an affirmative defense as this bill
would attempt to do and as the employers are arguing in Mach
Mining.
Mr. Takano. All right, thank you, sir.
My time has run out.
Chairman Walberg. I thank the gentleman.
I now recognize my colleague from Indiana, Mr. Rokita.
Mr. Rokita. I thank the chair, and I thank the witnesses
for their testimony. I always learn a lot at these hearings,
and I think that is what they are about. And perhaps unlike
some others that were here earlier, I try not to prejudge them.
But having said that, I do want to start off by offering some
time to Mr. Lloyd. In Indiana, we have a saying that it is a
pretty thin pancake that don't have two sides. And I think the
actual quote is ``don't'' instead of ``doesn't.'' But if you
had anything else to add to the recent comments of Mr. Foreman,
you are welcome to say them now, for a couple seconds.
Mr. Lloyd. Thank you. I actually know the facts of the
Sidley matter better than Mr. Foreman because I was partner at
Sidley & Austin and on the executive committee at the time the
EEOC brought that litigation. And I think Mr. Dreiband made an
error in suing Sidley. But in any event, I can tell you that on
the one hand we have the Sidley matter--where the Commission
approved, going forward, and I understand why. And we have the
PWC matter, where based on very different facts the Commission
made the decision not to go forward. And our facts are very
similar to the PWC situation, and very dissimilar from the
Sidley situation.
And I would like the opportunity, as I would have, for
example, at the SEC if the staff made a recommendation to
proceed, to submit, in one form or another--and maybe even
visit with--to the commissioners the facts so that they can
make an informed decision about whether it makes sense as a
policy matter, as a matter of whether this is a novel issue of
law, and as a resource allocation matter. I mean, who are we
going to protect here by initiating this litigation and tying
up our staff time on this? And I can tell you, we take votes.
Sidley partners did not vote, for example. That is a very
important difference.
And my guess is that if at Sidley we would have had votes
taken by the partners on a routine basis for such things as
electing leadership that the EEOC, at the time, would have made
a different decision and would not have authorized proceeding
against Sidley.
Mr. Rokita. Thank you, Mr. Lloyd.
Mr. Lloyd. Thank you.
Mr. Rokita. And this is to you and Mr. Dreiband. In my
prior public service, I was Indiana secretary of state. In that
great job, I had the opportunity to oversee several boards,
appoint several boards, create into statute boards. Some
boards, you know, were politically divided equally: two
Republicans, two Democrats. That usually ended in a disaster.
But some were all my appointments, as a person being directly
elected by the people. And then some had different varied
degrees of political appointments. But they weren't necessarily
partisan. It was just a way to decide things and to reflect the
will of the people through their elected representatives.
It seems to me, in hearing this discussion, that if you are
having unelected attorneys, bureaucrats-- whatever word you
want to use-- make these decisions, you are kind of tipping the
scale of what the statute might have intended and the
legislature might have intended in terms of the political
appointments and how these decisions were supposed to be,
really, made. Can you comment on that briefly, Mr. Lloyd? And
then Mr. Dreiband, same question?
Mr. Lloyd. Yes, I would be happy to respond. I agree
wholeheartedly. And it has nothing to do with the competence of
the attorney or the good faith of the attorney. Speaking as a
general counsel myself, you know, I many times have oversight
that sometimes I wish I didn't have. But I have found that,
over time, that oversight and getting differing opinions from
people who are experienced and have different insight--come
from different backgrounds, have different points of view--is
extremely valuable. I learn things, I then make different
decisions on occasion from what I would normally do.
Mr. Rokita. And then Mr. Dreiband, in the time I have
remaining. Thank you, Mr. Lloyd.
Mr. Dreiband. Sure. Any law enforcement agency, no matter
who they are, can become prone to overzealousness and excess.
That is true of prosecutors, that is true of police
departments. And, at times, it is true even of the EEOC. To
deal with this issue, Congress created the Commission; a
bipartisan Commission of five people, appointed by the
President, confirmed by the United States Senate, to serve
staggered five year terms. No more than three of those five
members can be of the same political party. As a result, the
Commission, in the statute itself, is responsible for
authorizing attorneys appointed by Title VII of the Civil
Rights Act to appear in court at the direction of the
Commission.
Congress did not intend, and there is nothing in the--any
statute to suggest that Congress did intend, for the Commission
to delegate all of its authority about litigation entirely to
other people in the agency. And that appears, in practice, to
what has happened at the EEOC. In the same way as I said
earlier that grand juries provide a check on prosecutors, even
the most well intentioned prosecutors, the Commission can
serve, and has historically served, that same function at the
EEOC.
Mr. Rokita. Thank you, Mr. Dreiband.
Seeing my time has expired, Mr. Chairman, I am yielding
back. But I also would like to note for the record that the
Ranking Member indicated that the hearing was only noticed for
eight days. That is actually a day long--extra day than what
the rules actually require. And I would hope that the Ranking
Member, with 25 years of law practice, would have read our
rules.
Chairman Walberg. I appreciate the former secretary of
state's attention to detail. And yes, it was eight days, while
we were only required seven days.
I now have pleasure of recognizing the gentleman from
Virginia, Representative Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Foreman, we have talked about the background checks.
The case I remember from--was the Griggs case, where they
required high school diplomas, which had nothing to do with
your ability to do the job. And it had a disparate impact in
the community without having any relationship to the jobs. Now,
this background check thing comes into practice with what is
called that box you have to check. And there is a campaign to
ban the box because when you check the box your application
summarily goes into the trash.
Now, we have heard of situations where you--it would be
illegal to hire people who have been convicted of violent
crimes or sexual--or people who have--sexual abuse. Would it be
improper to have a box on the application that states violent
crime or sexual abuse as opposed to a box that generally any
felony or any arrest or anything else that would be generally
applicable? It seems to me that the general box, any felony,
would be over-broad and would include a lot of people that
would not be prohibited from being employed. And you would have
the--you are back to the disparate impact without any job
relation. Is that true, Mr. Foreman?
Mr. Foreman. I mean, that would be one way to attempt to
address it. I mean, you are absolutely right on banning the
box. I mean, what happens is, many employers will adopt a
policy that says have you ever been arrested or convicted of a
crime. If the answer is yes, you are out of the screening
process and there is no individualized assessment. And part of
what EEOC's guidance is trying to do is say let's look at the
person. Is this person rehabilitated? Is it proper--can this
person do the job? Is it reasonably related to the job? That is
really all the guidance is trying to do.
In going back, as you said, to Griggs v. Duke Power, that
was a GED that screened out minority employees. And the court
there found that it was discriminatory, developed a disparate
impact analysis, and we discovered there are other things that
do that. And that is what the criminal guidance is supposed to
do. The problem with the proposed bill, then, it then takes and
exempts state and local governments from basically the
requirements of Title VII. When it was passed, that was vital
to Title VII. So let's not understate what the proposed bills
are doing. You are rewriting one of the most historic civil
rights statutes of our history in a way that doesn't add any
benefit.
Mr. Scott. Mr. Foreman, can you state the present law on
discrimination cases as they relate to sex discrimination, what
you can recover, as opposed to other forms of discrimination--
race, religion, national origin? Are there differences in what
you can recover?
Mr. Foreman. Well, they are absolutely different in terms
of what EEOC can recover as opposed to an individual who may
bring a claim under--and I don't want to get bogged down in
terminology, but 42-USC-Section 1981 there are uncapped
damages. You--the jury will award whatever the damages are that
were the cause of the discrimination. Whereas under Title VII,
they are capped according to the size of the employer.
Mr. Scott. Well, is it different in Title VII from other
forms of race discrimination? They are uncapped under 1981, but
not uncapped in others?
Mr. Foreman. Well, 1981 only applies to race
discrimination-based claims. So if you bring a race-based claim
under Title VII in an employment context you are capped. But
you are also capped in sex discrimination, any of the protected
coverages under Title VII. Did that answer your question?
Mr. Scott. I think--yes. Well, does the--we have the Fair
Pay Act for sex discrimination cases. Can you say what they
would do to improve the situation, the Equal Pay Act?
Mr. Foreman. Well, the Equal Pay Act has a different
regimen that does not have the same level of damages. I mean,
the reality is that the discrimination law should provide
whatever damages the person suffered, whether it is sex-based
discrimination, race-based discrimination. And I think the Fair
Pay Act is attempting to get at that to say if you are--if you
prove that you are a victim of intentional discrimination, then
you should be entitled to whatever economic damages that
discrimination caused you.
Chairman Walberg. The gentleman's time has expired. Thank
you.
And now I recognize the sponsor of H.R. 4959, my colleague
from North Carolina, Mr. Hudson.
Mr. Hudson. Thank you, Mr. Chairman.
Mr. Lloyd, I have read your testimony and I have to tell
you I am really deeply concerned that at a time when--with
limited resources EEOC has, what, some 77,000 pending claims
they are looking at, that they have just--that they have made a
decision to go after your firm and the mandatory retirement
age, when no one has filed any sort of complaint or there have
been damages. This is a decision made by a group of partners
who manage this firm. And the irony of it is, if the firm
decided to comply with the lawyers at the EEOC's request it
would require a vote of the partners to make the change.
Frankly, it is outrageous to me.
But my question to you is, do you believe that if the EEOC
continues to pursue this line, this matter, that it would
involve a major expenditure of resources by the EEOC and/or
trigger the public controversy test requiring a vote of the
Commission?
Mr. Lloyd. Well, I strongly believe that it would meet
those tests, as well as the tests that this would be a novel
application of the law for reasons we discussed. It would
require extensive expenditure of resources by the EEOC. Not
court costs and things like that. But when you think of
valuable staff time, this would be major litigation. We would
defend ourselves vigorously because we think they are wrong as
a matter of law and as a matter of fact. And so the EEOC staff
devoted to that litigation would be fairly extensive. And those
people would not be able to pursue those 100,000 claims, or
charges, that they get of individuals who need real protection.
I mean, we are talking about, at Deloitte, people who are
real partners but, beyond that, very highly compensated. And we
have done a study in response to this that shows that our
partners who have retired, been required to retire in the last
five years, have been overwhelmingly--as I said in my
testimony--white males. And yet our population coming along
through the staff and eligible to be admitted to the
partnership is much more diverse. And over the last five years,
while our white males have been retiring, 88 percent of our
retiring partners have been white males over that last five
years and only 12 percent women and minorities.
On the other hand, the newly-admitted partners during that
same period of time have been 41 percent women and minorities
and 59 percent white males. And so the operation of the
mandatory retirement system has actually caused our partnership
to become more diverse, and it clearly will in the future.
Our population of people below the partner level is
incredibly diverse, and they are wonderful performers and they
are going to advance to partnership. But if we were not able to
have this mandatory retirement provision that we do have, age
62, then--we have a limited number of partnerships--and so the
opportunities for the women and minorities would be limited.
Not foreclosed, but they would be limited. And, to me, that is
a perverse result when you think of all of the objectives of
the statutes that the EEOC is tasked to enforce, and objectives
that we believe in quite strongly. I mean, we do our own
internal disparate impact analyses, and we make sure that we
are doing the best job we possibly can to provide equal
opportunities and development opportunities for our women and
minorities. And this would hinder that.
Mr. Hudson. I appreciate that. And, Mr. Chairman, I do
believe the cost involved, as well as the public controversy
test certainly comes in play here. And I would hope that the
EEOC, if they choose to pursue this, will move to a vote of the
Commission. Because I think that is what the statute requires.
Changing direction here quickly, Mr. Dreiband, my bill,
H.R. 4959, has a provision clarifying the EEOC's conciliation
efforts must be in good faith and are subject to judicial
review. Professor Foreman's testimony criticizes this provision
as undermining the separation of powers because the Supreme
Court has granted review on this very issue in the EEOC v. Mach
Mining. Do you believe it is appropriate for Congress to
clarify what the duty of the conciliation entails?
Mr. Dreiband. Well, I don't see anything wrong with
Congress clarifying the matter if Congress decides to do that.
Congress is an independent branch of the United States
government, and it is not in any way limited by the fact that a
lawsuit is pending before any particular court, including the
Supreme Court of the United States.
Mr. Hudson. Appreciate that. Trying to use my time as
efficiently as I can.
Ms. Clements, thank you for you testimony. I have read
that, as well. You described instances of what could be
characterized as abusive investigatory tactics at EEOC. You
also described situations where EEOC would make a
predetermination settlement demand, and when the employer
declined the EEOC would quickly drop some of the charges. The
EEOC Transparency and Accountability Act, which I have
introduced, clarifies the EEOC must conciliate in good faith
and provide specific information to the employer about the
factual basis of the allegations and the effect on employees,
and the EEOC's conciliation efforts are subject to court
review. How would these provisions alleviate the problems you
have seen at EEOC investigations and mandatory conciliations?
Chairman Walberg. Seeing that time has expired, and yet
being a sponsor of the piece of legislation I will ask you to
respond as quickly as possible, and the rest could be put in
writing.
Ms. Clements. I think it is important for the Committee and
the EEOC to recognize that employers, when faced with
appropriate information from the Commission, are more than
willing to come to the table and try to fix problems that the
Commission sees. What is happening now is that employers don't
have enough information to really evaluate the strength of the
EEOC's findings. And it makes it difficult for employers to
pursue negotiations in good faith. And so one of the things
that I think your bill would help is provide that information
so that both parties can come to the table in good faith with
the same information about the employment practices that are at
issue.
Mr. Hudson. Great. I thank the Chairman for his magnanimity
and discretion there. Thank you.
Chairman Walberg. How is that defined in North Carolina? I
am not sure about Michigan either, so thank you. I thank the
gentleman. And thanks to the panel. We appreciate your very
considered testimony, answers to question, ideas. And that,
again, is the purpose of this subcommittee.
And now I would ask my Ranking Member to conclude with his
concluding remarks.
Mr. Courtney. Thank you, Mr. Chairman. Again, thank you to
all the witnesses for the time you devoted here this morning.
Again, I understand that while I was over at the Agriculture
Committee someone raised a question about whether or not I was
challenging whether the Committee had followed the rules. That
was not my point earlier. There is no question seven days is
the rule. The issue, really, is that this is, I think, our
third hearing or possibly our fourth hearing on EEOC over the
last two years or so. Once the chair was the witness, but since
then the scheduling of the hearing process has basically
effectively excluded the Commission from participating in a--in
what I think would be a helpful dialogue in terms of trying to
express frustrations that members may have, constituents may
have.
Because in my opinion, you know, a legislative response,
which is really, you know, what is on the agenda here today--is
a fool's errand. I mean, the chances of any of these bills
getting enacted in the 113th Congress are about as remote as
the Red Sox getting into the playoffs. And if any of you follow
the standings, they have been mathematically eliminated. So
that is impossible. And so, you know, we have this exercise for
whatever purpose. And, again, it is gonna accomplish nothing in
terms of changing the law. And what I think would be a better
use of time would be to actually engage with the Commission and
the department.
We have tangible results in the last nine months since
Secretary Perez has taken over, where he has listened to
bipartisan concerns that members have raised with the
department in terms of department operations. And he has
responded to those with real tangible results.
And, again, I think, you know, having legislation which was
just filed, you know, in certainly the last case, you know,
within just a week ago, and expect that to somehow advance the
ball here in terms of, you know, really trying to improve the
agency's performance, again I just think is--with the
productivity of this Congress in terms of the amount of
legislation that has actually been enacted, you know, just not,
in my opinion, the most effective use of time.
And so, again, the 50th anniversary of the Civil Rights Act
is something that we observed as a nation this year. I think,
again, Mr. Foreman, helped try and sort of rebalance the record
here today into showing that there still are people who suffer
from racial and civil rights violations in this country. The
EEOC has a very necessary role in our economy, in our country.
And what, I think, hopefully this committee will do is come up
with strategies that, in my opinion, does not trample on the
mission of Title VII and the Civil Rights Act but, in fact, in
a measured, balanced way move our country forward. Which is
really the best way to celebrate the 50th anniversary of the
Civil Rights Act.
And with that, I yield back.
Chairman Walberg. I thank the gentleman, and I take his
points. We are also celebrating Constitution Day today. That is
an important document as well that I think gives an awful lot
of direction for what we are to do in Congress. You mentioned
Boston, I will mention the Tigers right now. And we are hopeful
that they have a better opportunity of being in the World
Series. But that is not certain. It could change this weekend.
There are 384--at least 384 bills that sit over in the
Senate right now that have been passed after significant
effort, after this body has spoken. Much of that wealth of
legislation is bipartisan, to some degree. It sits over in the
Senate without any action. We don't reasonably expect them to
take action on it, sadly. But we certainly expect us--and as we
have opportunity we expect us--to take action here, and address
issues that have perked to the top with great concern. And that
has been the case. We have had the EEOC over here. We have
had--I have had the EEOC in my office. We have sent letters. We
continue to have concerns that are expressed.
The overriding intent of Congress in putting the EEOC into
operation was to clearly give the opportunity to make sure that
unnecessary--well, let me change that. That--I was going to say
unnecessary time was not spent. But I am going to say that all
necessary time would be spent on making sure that
discrimination did not happen, that people were afforded--
regardless of who they are, what they believe, the color of
their skin, their gender, their disabilities, were not
discriminated against. And that complaints were brought before
a Commission. And we established a Commission to be a
Commission with some latitude to decide how they function, to
some degree. But a Commission to clearly make decisions that
had impact upon equal rights and opportunity and the way
businesses functioned.
And so I guess today is, I hope, not an exercise in
futility, but a laying down and establishing a claim by
Congress on its concern that issues of concern be addressed.
And if there are better ways of dealing--and enhancing this
legislation that has been put forward, we are certainly willing
to look at it. But when you have 70,000 complainants expecting
some response by a Commission that is a backlog right now, and
you have other complaint--other cases that are being initiated
without complaint--I think that is a problem we ought to ask
questions, at the very least, about. And that the EEOC ought to
know that there are members of Congress on this subcommittee,
on the full Committee and in Congress at large that want those
issues of concern addressed and not just carrying on the same
old, same old.
When you have actions without employee complaint, when you
have uncertainty, inconsistency being brought into the mindset
of businesses, employers, and employees attempting to
understand the system, we ought to address that concern. At
least ask questions. And hopefully the EEOC is listening. They
certainly have an opportunity to respond--and I am sure they
are listening--respond in letter to us expressing concerns,
expressing ideas; some that have been addressed today here
already by our witness panel of suggestions on how legislation
could be addressed to go forward.
The hearing at least, as I said, lays a claim to carrying
on our concern. Whether it is successfully concluded with this
session of Congress, or whether it establishes a base to pursue
more aggressively to conclusion in the next Congress, I think
that is an important opportunity and responsibility of this
subcommittee. Having said all of that, we will look forward to
the response, as well as carrying on further.
I again want to thank the panel for being here. I thank my
committee members for their attention today.
And there being no further business, the subcommittee
stands adjoined.
[Additional submission by Mr. Courtney follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
[Whereupon, at 11:32 a.m., the subcommittee was adjourned.]
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