[Senate Hearing 113-858]
[From the U.S. Government Publishing Office]
S. Hrg. 113-858
NOMINATIONS OF P. DAVID LOPEZ TO SERVE AS GENERAL COUNSEL AND CHARLOTTE
BURROWS TO SERVE AS A MEMBER OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
ON
NOMINATIONS OF P. DAVID LOPEZ, OF ARIZONA, TO BE GENERAL COUNSEL, AND
CHARLOTTE A. BURROWS, OF THE DISTRICT OF
COLUMBIA, TO BE A MEMBER, BOTH OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
__________
NOVEMBER 13, 2014
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina RAND PAUL, Kentucky
AL FRANKEN, Minnesota ORRIN G. HATCH, Utah
MICHAEL F. BENNET, Colorado PAT ROBERTS, Kansas
SHELDON WHITEHOUSE, Rhode Island LISA MURKOWSKI, Alaska
TAMMY BALDWIN, Wisconsin MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut TIM SCOTT, South Carolina
ELIZABETH WARREN, Massachusetts
Derek Miller, Staff Director
Lauren McFerran, Deputy Staff Director and Chief Counsel
David P. Cleary, Republican Staff Director
(ii)
C O N T E N T S
__________
STATEMENTS
THURSDAY, NOVEMBER 13, 2014
Page
Committee Members
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Alexander, Hon. Lamar, a U.S. Senator from the State of
Tennessee, opening statement................................... 2
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina. 15
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 18
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky....... 19
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 22
Witnesses
Burrows, Charlotte A., Washington, DC............................ 4
Prepared statement........................................... 6
Lopez, P. David, Arlington, VA................................... 7
Prepared statement........................................... 9
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
.............................................................
Response by Charlotte A. Burrows to questions of Senator
Alexander.................................................. 28
Response by P. David Lopez to questions of:
Senator Alexander........................................ 30
Senator Isakson.......................................... 33
Senator Paul............................................. 34
(iii)
NOMINATIONS OF P. DAVID LOPEZ TO SERVE AS GENERAL COUNSEL AND CHARLOTTE
BURROWS TO SERVE AS A MEMBER OF THE EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION
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THURSDAY, NOVEMBER 13, 2014
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 3:30 p.m., in
room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
Present: Senators Harkin, Alexander, Franken, Murphy, Paul,
Hatch, and Scott.
Opening Statement of Senator Harkin
The Chairman. First of all, I apologize for being late--
just a vote and some other action. We welcome everyone here.
Today, our committee will hold a nomination hearing for
Charlotte Burrows to be a commissioner on the Equal Employment
Opportunity Commission and David Lopez to be the EEOC General
Counsel.
Throughout my career, I have been guided by the vision of
an America that is compassionate, just, and inclusive, a
society where the government provides a ladder, or sometimes a
ramp, of opportunity that will give all people equal access to
the American dream. But that ladder cannot function properly if
there are barriers of discrimination that unfairly limit
opportunities for some Americans to fully participate in the
social, political, and economic life of our country.
Over the last 45 years, we have made great strides toward
eliminating discrimination in the workplace. The Civil Rights
Act of 1964 prohibited discrimination on the basis of race,
sex, national origin, and religion. The Age Discrimination in
Employment Act, in 1967, prohibited discrimination on the basis
of age. The Americans with Disabilities Act, in 1990, and the
ADA Act Amendments of 2008 prohibited discrimination on the
basis of disability.
These important guarantees, however, are not self-
enforcing. They're only as strong as the agency charged with
enforcing them, and that's the EEOC. The EEOC's mission is
simple: to promote equality of opportunity in the workplace and
enforce Federal laws prohibiting employment discrimination.
While much progress has been made in recent decades,
discrimination in the workplace continues to be all too common.
Too many employment decisions are based on insidious
stereotypes and prejudices rather than an employee's talent,
ability, and qualifications. Too many hardworking Americans
face the harsh reality of getting a pink slip or not being
hired at all because of race, sex, national origin, religion,
age, disability, or some other irrelevant factor.
The problem is especially pronounced for individuals with
disabilities. Less than 30 percent of working-age Americans
with disabilities participate in the workforce Think about
that. People are always talking about the unemployment rate is
now 5.8 percent. Among African Americans, it's about twice
that. And people bemoan that and say, ``We've just got to
reduce unemployment.''
Think about this. Over 60 percent of people with
disabilities who can work and want to work are not employed.
Think about that as a figure for unemployment--two-thirds.
Households with an adult member with a disability earn 38.4
percent less than households without an adult member with a
disability. So it's income discrimination, too. These facts
make it clear that people with disabilities are still
encountering road blocks, and that the ADA's goal of economic
self-sufficiency is far from being achieved.
While I am optimistic that our amendments to the
Rehabilitation Act, contained in the Workforce Innovation and
Opportunity Act of 2014--by the way, I might just say that we
wouldn't have gotten there without the great help, assistance,
and support, advice, and consultation of our Ranking Member,
Senator Alexander. We worked 5 years on that bill, and we
finally got it through.
But contained within that are some parts that will help us
make great progress in the future for people with disabilities.
The EEOC will always have an important role to play in
combating discrimination and supporting employment
opportunities both for individuals with disabilities and, of
course, all Americans.
Unfortunately, today's EEOC faces enormous challenges. The
Agency has a substantial backlog of almost 71,000 cases, and it
takes an average of 267 days to process a discrimination claim.
And as we know, all too often, justice delayed is justice
denied.
American workers deserve better, especially in these times
of economic turmoil, when discrimination often increases and
workers who are victims of discrimination face even greater
challenges. Now more than ever, we need strong leadership at
the EEOC. Both of our nominees are extremely well qualified and
have a commitment to public service. They possess the
extraordinary skills and experience that will help them advance
the EEOC's mission and ensure proper enforcement of some of our
most important laws.
I look forward to working with Senator Alexander to move
these nominees quickly so they can get to work ensuring
fairness and equal opportunity for every American worker.
With that, I recognize our Ranking Member, Senator
Alexander.
Opening Statement of Senator Alexander
Senator Alexander. Thank you, Mr. Chairman, and welcome to
the committee.
In 1963, I stood with a lot of other people on the National
Mall and heard Dr. King's speech in August of that year, ``I
Have a Dream.'' This Agency was the result of the Civil Rights
Act of 1964 that came the next year, and it's very important in
our American life. The EEOC receives complaints of
discrimination and is charged with investigating those
complaints to determine whether or not they have merit, and
then attempting to resolve them informally through conciliation
and mediation. That's the charge.
I have two primary concerns with the EEOC. First, I believe
the EEOC has placed too much emphasis on litigating high
profile lawsuits and too little emphasis on dealing with the
complaints that have been filed, creating a huge backlog of
complaints about discrimination. Second, I don't believe that
the Commission has been as transparent as it ought to be in
terms of the guidance it issues and its activities. Let me
explain a little about that, and then I'll ask questions about
that.
The litigation strategy the EEOC is using today is time-
consuming, costly, and ought to be the last resort. Last year,
more than 93,000 charges of discrimination were filed with the
EEOC. About 3,000 of those came from Tennessee. EEOC reports
that 70,000 of the 93,000 charges are unresolved and still
pending.
A backlog of charges pending is nothing new for the EEOC.
So why not spend the time and money you're spending on these
high profile lawsuits instead on resolving actual complaints
that are filed and are part of the backlog. This desire to win
big lawsuits has backfired. Numerous Federal courts have
criticized the EEOC's litigation practices. An example is the
Kaplan Higher Education Corporation suit. EEOC brought a case
and received a sharp rejection by a unanimous three-judge panel
in the 6th Circuit Court of Appeals. The Wall Street Journal
named it the ``Opinion of the Year.''
Here's what the court wrote,
``EEOC brought this case on the basis of a homemade
methodology, crafted by a witness with no particular
expertise to craft it, administered by persons with no
particular expertise to administer it, tested by no
one, and accepted only by the witness himself.''
That's embarrassing, to bring a case like that and have a court
unanimously say that.
The court also criticized EEOC for bringing a case against
Kaplan for using the same type of background check that the
EEOC itself uses. EEOC has been ordered to pay attorney's fees
in 10 different cases. In six cases, fees were awarded under a
rare provision in Title VII of the Civil Rights Act, which is
reserved for cases that are, ``frivolous, unreasonable, and
without foundation,'' or ``continued to be litigated'' after
those circumstances became present. That's embarrassing, too.
This costs taxpayers money. It hurts the victims of
workplace discrimination. I believe the Commission has
exercised too little restraint over the General Counsel. I
believe the EEOC should immediately reconsider the strong
emphasis on lawsuits which are not based on any complaint and
do not even have a victim plaintiff.
In recent years, the general counsel has pursued a number
of cases without complaints, such as age discrimination cases
against large accounting firms whose partners have voluntarily
adopted a mandatory retirement age. It's hard to imagine why
you would spend time on that when you have a 70,000 backlog of
actual cases of discrimination that are unresolved.
I am also concerned about the lack of transparency in
guidance. What I mean is whether you allow the public to
comment on the proposed guidance.
Finally--and I'll ask a question about this--in the
Affordable Care Act, there wasn't much bipartisan about it. But
one bipartisan idea was to encourage wellness. We heard
testimony in both the Democratic caucus and the Republican
caucus from Safeway and other companies that encourage healthy
behaviors in their companies by saying you'll have cheaper
insurance if you lead a healthy lifestyle.
The Obama administration had regulations from Treasury,
Labor, and HHS that were working just fine until administration
officials rewrote them and made it more complicated to have
wellness plans. The EEOC has not yet issued regulations about
what its attitude will be, yet it's suing companies who are
trying to follow the spirit, I think, of the Affordable Care
Act on wellness. So I want to ask about that when my time
comes.
Thank you, Mr. Chairman.
The Chairman. Thank you very much, Senator Alexander.
We have two excellent nominees with us today. First, we
have Charlotte Burrows, nominee to be a commissioner on the
EEOC. Ms. Burrows currently serves as Associate Deputy Attorney
General at the Department of Justice. Prior to that, she served
as General Counsel for civil and constitutional rights to
Senator Edward Kennedy on the Senate Committee on Health,
Education, Labor, and Pensions--I've heard of that committee--
and also the Judiciary Committee.
She also worked in the Civil Rights Division as a trial
attorney, and clerk for Hon. Timothy K. Lewis for the U.S.
Court of Appeals for the 3rd Circuit. She received an A.B. from
Princeton University and J.D. from Yale Law School.
Next is Mr. David Lopez, who is nominated for a second term
as General Counsel of the EEOC. Mr. Lopez has been General
Counsel since 2010. Prior to that, he served at the EEOC in
various capacities for two decades. Mr. Lopez received a B.S.
from Arizona State University and a J.D. from Harvard Law
School.
We welcome you both here. Both of your testimoneys will be
made a part of the record in their entirety, and if you can sum
up your testimony in 5 minutes or so, then we'll get to some
questions.
Ms. Burrows, would you please start? Welcome.
STATEMENT OF CHARLOTTE A. BURROWS, WASHINGTON, DC
Ms. Burrows. Certainly, Senator. Good afternoon and thank
you.
And thank you also, Ranking Member Alexander, for your time
here today.
It's an honor to be here in this committee that meant so
much to my former boss, Senator Kennedy. I would like to thank
the President for this nomination and to express my deep and
abiding appreciation for the support of my family, friends, and
colleagues, some of whom are here today. With indulgence, I
would like to introduce a few of them.
My father, Dr. Rodney Burrows, who as a former veteran and
a former political science professor, instilled in me a respect
both for our American democracy and for this committee, this
body. I would also like to introduce my uncle, John C. Honor,
and my aunt, Vivian Honor, my cousins, Jennifer and John Honor,
III, and John's wife, JeVon Honor. My thanks as well to my
brother, Bruce Burrows, and my sister, Dr. Stephanie Burrows,
for their support and good wishes.
The Chairman. That's quite a family. Welcome. I'm glad
you're all here. Thank you.
Ms. Burrows. And my husband, Tilman Wuerschmidt, and my
son, Cy Alan Wuerschmidt, as well as Toni, my sister-in-law,
and Ben and Beyorn Burrows.
In the 50 years since the Equal Employment Opportunity
Commission was established, America has made great progress
toward achieving the goal of equal employment opportunity.
Women are not only entering the workforce in greater numbers,
but increasingly are doing so in positions of leadership.
Thanks in large part to the landmark Americans with
Disabilities Act, which Chairman Harkin was so instrumental in
passing, new doors of opportunity are open to persons with
disabilities. More workers than perhaps ever before can be
confident that they are judged by their merit and not by their
race, color, national origin, sex, religion, disability, or
some other irrelevant factor like genetic information.
Despite that progress, unfortunately, we have yet to fully
eliminate prejudice and discrimination from the workplace, and
the EEOC's mission remains critical. For workers and their
families, effective enforcement of our Nation's civil rights
laws is vital to ensuring they have an equal opportunity to
work hard, succeed, and provide for their children.
Our Nation is strongest when everyone is included and
everyone has a chance to contribute. Only when we completely
eliminate discrimination from the workplace will our economy
have the full benefit of the many diverse talents of American
workers.
Quality enforcement is also important for our Nation's
businesses, the vast majority of which not only comply with the
law, but are at the forefront of ensuring fairness in the
workplace. Employers have a great deal of experience about what
works to achieve equal job opportunity, and I view the business
community as a critical partner in the Commission's work. If
confirmed, I look forward to working with all members of the
Commission and all interested parties, including this
committee, on our common goal of equal employment opportunity.
In my current role as Associate Deputy Attorney General,
part of my job has been to address employment issues both in
terms of the Federal Government's role in protecting workers
and also its status as one of America's largest employers. As
such, I must often coordinate with and sometimes mediate
between Department litigators who bring plaintiff-side job
discrimination cases and those who defend Federal agencies when
they are sued as employers. That role has given me insight into
the needs and perspectives of both employers and workers and
has strengthened my conviction that there is almost always room
for common ground between the two.
Mr. Chairman, I am honored to be considered for this
position and for the opportunity to assist in the Commission's
critical work. For nearly my entire professional career, I have
either worked with the EEOC or sought to enforce or improve the
statutes it administers as a career Justice Department
litigator in both Republican and Democratic administrations, as
a Senate staffer, and in my current role in the Deputy Attorney
General's Office at the Department of Justice.
I also have been privileged to work with many of you or
your staffs to further the cause of equal employment
opportunity. If confirmed, I hope to continue that important
work.
I thank the committee for your time and look forward to
your questions.
[The prepared statement of Ms. Burrows follows:]
Prepared Statement of Charlotte A. Burrows
Good afternoon, Chairman Harkin, Ranking Member Alexander, and
distinguished members of the committee. It is an honor to appear before
this committee, which meant so much to my former boss, Senator Kennedy.
I would like to thank the President for this nomination and to
express my deep and abiding appreciation for the confidence and support
of my family. Some of them are here today, including my father, Dr.
Rodney Burrows, who as both a veteran and a former political science
professor, helped instill in me respect for our American democracy and
the importance of this body. I would also like to introduce my uncle,
John C. Honor, Jr., and my aunt, Vivian Honor. My thanks as well to my
brother, Bruce Burrows, and my sister, Dr. Stephanie Burrows, for their
support and good wishes. The experience of growing up as the middle
child between two very different, opinionated and incredibly
intelligent siblings helped me to see others' perspectives, to
negotiate, and to look for opportunities for compromise--skills that
will be useful if I am fortunate enough to be confirmed. I'd also like
to introduce my husband, Tilman Wuerschmidt and my son, Cy Alan
Wuerschmidt, and to thank them--although words can in no way fully
express the debt I owe--for their love, patience, support and many
sacrifices throughout my career in public service.
In the 50 years since the Equal Employment Opportunity Commission
was established, America has made great progress toward achieving the
goal of equal employment opportunity. Women are not only entering the
workforce in greater numbers, but increasingly are doing so in
positions of leadership. Thanks in large part to the landmark Americans
with Disabilities Act, which Chairman Harkin was instrumental in
passing, new doors of opportunity are open to persons with
disabilities. More workers than perhaps ever before can be confident
that they will be judged on their qualifications and performance, not
their race, color, national origin, sex, religion, disability, age or
genetic information.
Despite that progress, unfortunately, as a society, we have yet to
completely eliminate prejudice and discrimination from the work place,
and the EEOC's mission remains critical. For workers and their
families, effective enforcement of our Nation's civil rights laws is
vital to ensuring they have an equal opportunity to work hard, succeed,
and provide for their children. Our Nation is strongest when everyone
is included, and everyone has a chance to contribute. Until we
completely eliminate the barriers of discrimination from the workplace,
our economy will continue to be deprived of the full benefit of the
many, diverse talents of American workers.
Quality enforcement is also important for our Nation's businesses,
the vast majority of which not only comply with the law, but have been
at the forefront of ensuring fairness in the workplace. Employers have
a great deal of expertise about what works to achieve equal job
opportunity, and I view the business community as a critical partner in
the Commission's work.
If confirmed, I look forward to working with all members of the
Commission and all interested parties, including this committee, on our
common goal of equal employment opportunity. In my current role as
Associate Deputy Attorney General, part of my job has been to address
employment issues both in terms of the Federal Government's role in
protecting workers and its status as one of America's largest
employers. As such, I must often coordinate with--and sometimes mediate
between--Department litigators who bring plaintiff-side job
discrimination cases, and those who defend Federal agencies when they
are sued as employers. That role has given me insight into the needs
and perspectives of both employers and workers, and strengthened my
conviction that there is almost always room for common ground between
the two.
Mr. Chairman, I am honored to be considered for this position and
for the opportunity to assist the Commission in its critical mission.
For nearly my entire professional career, I have either worked with the
EEOC or sought to enforce or improve the statutes it administers--as a
career Justice Department litigator in both Republican and Democratic
administrations, as a Senate staffer, and in my current role in the
Deputy Attorney General's Office at the Department of Justice.
I also have been privileged to work with many of you or your staffs
to further the cause of equal opportunity. If confirmed, I hope to
continue that important work.
I thank the committee for your time and look forward to your
questions.
The Chairman. Thank you very much, Ms. Burrows. Welcome
back to your home base here in this hearing room.
Ms. Burrows. Thank you.
The Chairman. Next is Mr. David Lopez.
Mr. Lopez, first of all, before you speak, I want to thank
you. You and I have had dealings in the past.
Mr. Lopez, along with his attorneys in Houston, TX.
Mr. Lopez. Yes.
The Chairman [continuing]. Brought a case--and, again, this
was not a case where someone had made a complaint. These were
individuals with disabilities, intellectual disabilities, who
had been hired by a service in Texas and shipped up to Iowa to
work in a poultry processing plant. Some of them had worked
there for as much as 20 years, if I'm not mistaken, right
alongside people without disabilities, people who were making
$8, $9, $10 an hour, and they were making 50 cents an hour and
were housed in horrible conditions with nothing to show for it.
That case was brought, and if I'm not mistaken, it's still
the largest judgment ever obtained by the Federal Government
against an entity.
I want to thank you for your leadership on that. I think
what that case showed the Nation was that discrimination
against people with disabilities is embedded around this
country, and it showed that even in this day and age, there are
unscrupulous people who will take advantage of the poor and
disabled and put them in these kinds of working conditions. As
I said, it wasn't that someone filed a complaint. It was
through investigations that this was found.
I want to put that on the record. I remember that case very
well because it happened in Iowa, and it really, I think,
opened a lot of eyes as to what was happening to people with
disabilities in our workplaces.
I thank you for your leadership on that, Mr. Lopez. Again,
your statement will be made a part of the record, and if you
could please take 5 minutes and sum it up, I'd appreciate it.
STATEMENT OF P. DAVID LOPEZ, ARLINGTON, VA
Mr. Lopez. Thank you, Chairman Harkin. Chairman Harkin,
Ranking Member Alexander, members of the committee, first of
all, I am honored and humbled to have been re-nominated by
President Obama for the position of General Counsel.
I would like to start out by introducing my family, Maria
Leyva, my wife of nearly 25 years, my sons, Javier, Julian, and
Luis. Javier is working today. They are quite simply my heart
and the reason I get up in the morning.
As Chairman Harkin stated in his introduction, I am a
longtime public servant. I joined the Federal Government in
1991, first at the U.S. Department of Justice Civil Rights
Division, and then at the Equal Employment Opportunity
Commission. Over more than two decades of public service, I
have proudly been part of this country's longstanding bi-
partisan commitment to ensuring equal employment opportunity.
When President Obama nominated me in 2009 to be EEOC's
General Counsel, I observed firsthand that civil rights are not
a partisan issue, but an American promise. This year we have
celebrated the 50th anniversary of the Civil Rights Act of
1964, including Title VII, a law that has enabled countless
individuals to unleash their potential and productivity, and
it's fitting that we're here in the Dirksen Building.
The EEOC is a small agency with a big mission: to eradicate
employment discrimination. It is truly a little agency that
could.
As general counsel, I run the Commission's litigation
program, overseeing the agency's 15 Regional Attorneys and a
staff of more than 325 lawyers and legal professionals across
the country. As I state in my written testimony, I have
developed compelling critical cases which we successfully
resolved at more than a 90 percent rate, and when unable to
resolve, went frequently in front of juries.
We have filed litigation consistent with the guidelines set
forth by the Commission to govern the delegation of litigation
authority, and I hope to have fostered a culture of
inclusiveness and transparency, encouraging our litigators
nationwide to operate more collaboratively with each other,
other internal partners, as well as with the bar and management
groups.
In significant part due to our trial and appellant
successes, I was honored to be named by the National Law
Journal earlier this year as one of America's 50 outstanding
general counsel. I was one of only a small number of public
attorneys to have received this award. The National Law Journal
recognized me for the dedicated and talented work of my staff
across the country and the successful litigation program by any
metric.
In accepting this award, I am keenly mindful of the
profound impact our work has and our decisions have on
companies and workers across the country. These lawsuits often
stop longstanding discriminatory practices and provide relief
to the victims of discrimination.
You mentioned, Senator, our landmark $240 million trial
verdict in Davenport, IA, on behalf of 32 intellectually
disabled workers. These workers had been brought to Iowa to
work at a turkey evisceration plant. During their employment,
they were housed in an old schoolhouse where they were denied
access to medical care. They were subject to verbal abuse and
sometimes physical abuse. The jury sent the strong verdict that
this type of conduct is unacceptable in this country or
anywhere in the world.
This victory was personally gratifying for me. As general
counsel, I have made robust enforcement of the Americans with
Disabilities Act a top priority. And, indeed, I have submitted
a list of cases that we brought. We brought and successfully
resolved numerous cases on behalf of individuals with cancer,
diabetes, epilepsy, and other conditions difficult to cover
prior to the enactment of this Act. We have also successfully
brought and resolved our first cases under the Genetic
Information Nondiscrimination Act.
In addition to this area of our responsibility, we have a
powerful story to tell in many areas. This includes combating
sex discrimination in traditionally male professions, combating
egregious racial harassment, blatant pregnancy discrimination,
and persistent religious discrimination. We have been
successful in the courts in securing victories and setting
forth important legal principles.
While it's my job as general counsel to be the Agency's
chief litigator, and the statute provides me with the authority
to conduct litigation, let me be clear. I believe litigation
should be the enforcement tool of last resort. I strongly
support the agency's efforts to eradicate discrimination
through policy guidance, voluntary compliance, and public
outreach.
Let me close with some words about our incredible career
staff. This past spring, the New York Times ran a story about
the men who worked at Henry's Turkey and how they had been all
but forgotten for years. The article referred to Robert Canino,
our wonderful regional attorney from Dallas and the career
commission lawyer who brought this case. The story stated that
Robert was the ``last best hope for justice'' for those
discrimination victims.
As both an EEOC trial attorney and more recently as General
Counsel, I have personally seen the dedication and skills of
these amazing civil servants. Over the past 4 years, they have
faced a hiring freeze, significant attrition among their ranks,
and furloughs. Yet these professionals have remained steadfast,
thoroughly committed to bringing equal employment opportunities
for all. They embody the finest and highest ideals of public
service, and I am proud to serve with each and every one of
them.
Thank you. I would be happy to answer any questions.
[The prepared statement of Mr. Lopez follows:]
Prepared Statement of P. David Lopez
Good afternoon, Chairman Harkin, Ranking Member Alexander, members
of the committee.
My name is David Lopez and I am honored and humbled to have been
nominated to serve another term as the General Counsel of the U.S.
Equal Employment Opportunity Commission (EEOC).
I have served in the Federal service since 1991, first at the U.S.
Department of Justice Civil Rights Division, and then at the Equal
Employment Opportunity Commission. Over my more than two decades of
public service, I have proudly been part of this country's longstanding
bi-partisan commitment to ensuring equal employment opportunity without
regard to race, color, gender, religion, national origin, disability,
age or genetic information.
When President Obama nominated me in 2009 to be the EEOC's General
Counsel, I had served in the career civil service under Republican and
Democratic administrations. Throughout my tenure I have observed
firsthand that civil rights are not a partisan issue, but an American
promise. This year we have celebrated the 50th anniversary of the Civil
Rights Act of 1964, including Title VII--one of the most transformative
pieces of legislation in the country's history. Along with subsequent
legislation targeting discrimination on other traits like age and
disability, it has enabled countless individuals to unleash their
potential and productivity, in turn helping to drive our Nation's
economic engine.
The EEOC is a small agency with a big mission--to stop and remedy
unlawful employment discrimination. To that end, the Agency has carried
out its mission consistently and dutifully, decade after decade.
We start with prevention, issuing policy guidance designed to
explain employer responsibilities and employee rights under the laws we
enforce. We receive and investigate nearly 100,000 private-sector
charges per year and resolve the vast majority of them informally, in
mediation or conciliation. We devote enormous attention and resources
to public outreach and education across the country. When these tools
do not work, we also are statutorily directed to file suit to enforce
the laws in Federal court.
As general counsel, I run the Commission's litigation program,
overseeing the Agency's 15 Regional Attorneys and a staff of more than
325 lawyers and legal professionals who conduct or support Commission
litigation in district and appellate courts throughout the Nation.
The public-interest litigation the EEOC chooses to pursue provides
a unique deterrent to unlawful discrimination, both for the specific
defendant and also for the larger community. And they help inform our
tremendous efforts at conciliation and early resolution.
Take, for instance, the landmark $240 million trial verdict in
Davenport, IA on behalf of 32 intellectually disabled workers. These
workers had been brought to Iowa to work at a turkey evisceration
plant. During their employment, they were housed in an old schoolhouse
in Muscatine, IA where they were deprived of access to medical care,
and subjected to verbal and sometimes physical abuse. This one lawsuit
may have done more than we can ever know to convey the warning of
``never again.'' This particular piece of litigation filed by the
Commission solely to serve the public interest served as a clarion
call: That discrimination because of disability cannot and will not
stand in Muscatine, anywhere in Iowa, or anywhere in this great
country.
We are, of course, proud of the success we've been able to achieve
through litigation on behalf of our charging parties. Some of our
proudest victories for American workers include a case out of Georgia,
where we were able to win a victory for a woman unlawfully denied a
supervisory position because of her sex and cases out of Tennessee,
North Carolina, and Texas, involving employees subjected to egregious
harassment based on sex or race. During my tenure, I am proud that we
have been able to prevail on behalf of charging parties in more than 60
percent of our jury trials, including 11 of our last 15.
We also have obtained landmark victories in the appellate courts.
For example, in Houston Funding, a panel of the Fifth Circuit issued a
landmark--but common-sense-ruling recognizing that discrimination
against a woman because she is lactating is discrimination ``because of
sex'' in violation of Title VII and the Pregnancy Discrimination Act.
Additionally, we prevailed before the U.S. Court of Appeals for the
Fourth Circuit in our action against Baltimore County, where the
appeals court agreed with our position that making older workers
contribute more to their pensions violates the Age Discrimination in
Employment Act.
As general counsel, I have made robust enforcement of the Americans
with Disabilities Act a top priority. Indeed, when I appeared before
this committee more than 4 years ago I vowed that one of my main goals
upon confirmation would be to breathe full life into the recently
enacted Americans with Disabilities Act Amendments Act (ADAAA). This
would be one of my main goals upon confirmation.
As Chairman Harkin and members of this committee know well, under
the ``old'' ADA, vindicating the rights of people with conditions such
as diabetes or epilepsy (and sometimes even cancer) used to be
virtually impossible. This had been one of my greatest frustrations
over the many years I was in the trenches as an EEOC trial attorney. It
was difficult to rectify glaring disability-based discrimination, even
in cases where the employer admitted to discriminating based on the
worker's medical condition.
But Senators, I am pleased to say that today, in light of your
efforts in passing the ADAAA, that we have been successful where before
success had eluded us. We now have brought and successfully resolved
numerous cases on behalf of individuals with cancer, diabetes,
epilepsy, intellectual disabilities, and other conditions difficult to
cover prior to the passage of this Act. We have also successfully
brought and/or resolved the first cases under the Genetic Information
Nondiscrimination Act (``GINA'').
In addition, in virtually every area under our purview--for
instance, in combating sex discrimination in hiring in male dominated
professions, or egregious overt racial harassment--we have a powerful
story to tell. We have successfully prosecuted a multitude of sex-
discrimination cases, including many involving blatant and unabashed
pregnancy discrimination. I've observed that, more than 25 years after
passage of the Pregnancy Discrimination Act, pregnancy-related
discrimination continues to be among the most overt forms of
discrimination we encounter. Fortunately, our litigation efforts in
this area have had enormous impact for these women and their families.
We have also vigorously prosecuted cases based on religious
discrimination. The Supreme Court recently granted our petition for
certiorari in our ongoing lawsuit against Abercrombie and Fitch. With
this case, to be heard this term, the Court will examine Title VII's
requirement that companies reasonably accommodate workers' religious
beliefs and practices. A group of seven broad-ranging religious groups
filed an amicus brief in support of our cert petition. This case
illustrates the commitment the EEOC has to protecting the religious
exercise of all Americans and underscores the singular role that the
EEOC's public-interest litigation can play in helping to clarify the
law, and thus, in ultimately bringing greater certainty about legal
obligations and rights for employers and employees alike.
While it's my job as General Counsel to be the Agency's chief
litigator, let me be clear: I believe litigation should be the
enforcement tool of last resort. I do not believe in suing first, and
asking questions later. During my tenure as GC, I have focused on
developing and filing critical cases, particularly those that further
the public interest. Indeed, during the past 4 years the number of
merits lawsuits we've filed has actually dropped. In fiscal year 2013,
for instance, we litigated on the merits only .0014 percent of all
charges filed. That is about one lawsuit for every 1,000 charges. We
carefully and deliberately vet our litigation vehicles to ensure
effective enforcement nationwide and across the statutes. And we seek
approval from the Agency's Commissioners--by law, a bipartisan group--
consistent with the guidelines the Commission itself has adopted to
govern the delegation of litigation authority.
It bears emphasizing that we end up successfully resolving more
than 90 percent of the cases we do file. In practice, this means we are
able to secure victim specific relief and, as importantly, non-monetary
relief such as policy changes and training to ensure the conduct does
not recur in the vast majority of our cases. We achieve all this
without protracted and unnecessary litigation.
More generally, I have inculcated a culture of inclusiveness and
transparency. More than 4 years ago I talked about fostering a
``culture of collaboration.'' True to my pledge, I have cultivated
``One National Law Enforcement Agency,'' encouraging our litigators
nationwide to operate more collaboratively and cohesively with each
other and other internal partners. This good-government approach has
contributed to many of the successes mentioned above. Further, this One
National Law Enforcement Agency model has spread beyond the litigation
program; it is embodied in the Agency's current Strategic Enforcement
Plan which enshrines an integrated, cross-functional approach, breaks
down silos, and helps ensure we do not reinvent the wheel or repeat
mistakes.
As general counsel, I, along with those under my direction,
actively and enthusiastically support the Agency's non-litigation
enforcement efforts. During my tenure as General Counsel, I believe I
personally have engaged in unprecedented levels of outreach to various
stakeholder groups across the country, including to bar and management
groups. For instance, I have appeared at 7 events over the past 2
months alone where I addressed members of the bar and business
community. As I say often at these events, I operate from the premise
that the vast majority of employers seek to comply voluntarily with the
law and often will take steps beyond the minimal legal requirements to
ensure inclusive and fair workplaces.
Let me close with some words about our incredible career staff.
This past spring, the New York Times ran an abovefold story about the
men who worked at Henry's Turkey, and how they had been all but
forgotten for years. The article referred to Robert Canino--our
wonderful Regional Attorney from Dallas and the career Commission
lawyer who developed and tried the case. The story stated that Robert
was the ``last best hope for justice'' for those discrimination victims
in Muscatine. That's all in a day's work for EEOC litigators like
Robert.
I was honored to be named by the National Law Journal earlier this
year as one of America's 50 Outstanding General Counsel, but that award
really belongs to my dedicated colleagues at the EEOC who inspire me
every day. I have seen up close and personal the unparalleled
dedication and skill of these amazing civil servants. Over the past 4
years they have faced a hiring freeze, significant attrition among
their ranks, and furloughs. Yet these professionals, who doubtless
could pursue other, more lucrative career options, have remained
steadfast throughout, more committed than ever to bringing equal
employment opportunities for all. They embody the finest and highest
ideals of public service. And I'm proud to serve with each and every
one of them.
Thank you and I would be happy to answer any questions.
The Chairman. Thank you very much, Mr. Lopez.
Let me start a round of 5-minute questions, I guess for
both of you, but Mr. Lopez first since you're on the EEOC. But
the EEOC has done an excellent job, I believe, of reaching out
to the business community and giving employers guidance to help
them comply with the law. You mentioned in your remarks, in
your written statement, that suing is the last resort that you
want to do. And many of these things are just solved with
conciliation and mediation and that type of thing and guidance
directives.
Can you tell us what types of outreach to the business
community the EEOC has done, and are there more that the agency
should be doing or could be doing?
Mr. Lopez. One thing that is important about the Agency's
recent strategic enforcement plan is it hopes to make sure that
we use all the tools available to us to eradicate
discrimination--policy, public education, voluntary
compliance--and when those don't work, litigation. I've been
strongly supportive of all those efforts of the Commission
throughout my tenure.
I think the Commission's performance in this area is
certainly reflected in its increasingly successful conciliation
rate, and you see the Commission conciliating cases at a much
greater rate over the last 4 years. In voluntary resolution of
these cases, voluntary compliance, and by any metric, the EEOC
has been incredibly successful.
Let me talk a little bit about public outreach. I can't
prove this, Senator, but I do believe, because I've been told
by my career staff, that I conduct more outreach than any of my
predecessors. I speak frequently across the country to employer
groups, to bar groups. Over this past couple of months, I've
been to North Carolina, actually three times, Alabama, and
Florida, speaking to management groups, talking about the work
that we do.
When I go there, I tell them at every single whistle stop
that I operate from the premise--even on the chief lawyer, I
operate from the premise that the vast majority of employers
want to voluntarily comply with the law, and they want to
satisfy the requirements of the law. I go there and I answer
the questions, and I answer the hard questions about the work
we do, and I learn so much from them that I am able to roll
back into the effectiveness of the program.
Outreach is very, very important, and it's something that
I've dedicated an enormous effort to. But I will say it's not
just me. It's the entire Commission. The Commission has
individuals who conduct outreach, reach out to groups. It has a
small business task force. The Commission has been tremendously
successful in terms of talking about the work that we do and
educating employers as to their responsibilities and employees
as to their rights. It's a big part of what we do, and it's
something that I support, not only in theory but in action.
The Chairman. Thank you.
Ms. Burrows, you're going on the Board, I hope, soon. And
nationally and in Iowa, the average woman working full time
year round is still earning about 77 cents on the dollar of
what a man makes. I think that's terrible for families, but
it's also terrible for our economy.
In your estimation, what could EEOC do to help stamp out
sex discrimination in the workplace? What kind of a vision
would you have for the EEOC in addressing this issue?
Mr. Burrows. Senator, thank you for the question. I think
equal pay issues are enormously important, obviously, as the
country is coming off of some tough economic times, too, so
even more than ever. There are a number of statutes that are
already on the books--but to really sort of take a look first
at what the current enforcement has been in that area, because
I think it should be, obviously, a priority.
For me, the first thing I would want to do is learn more
about what the Commission is doing currently on that and seek
the views of my colleagues because as you force something
toward a priority, then you obviously have resource issues for
others to sort of see how that plays together. Really to take
some time and look at the charges, what kinds of problems are
out there, because sometimes as you look at charges, you can
also find some things that either through guidance or other
approaches will allow you to do something that takes a broader
swath.
But in the first instance, I think it is something that we
would need to take a close look at what has been the
achievement so far and the views about how to move it forward.
But I agree with you. It is a huge issue.
The Chairman. Thank you both very much. My time is up.
Senator Alexander.
Senator Alexander. Thank you.
Mr. Lopez, is a mandatory retirement agreement in an
accounting firm age discrimination?
Mr. Lopez. A mandatory retirement agreement, as a general
matter, can be age discrimination. But there's a question as to
whether the business is covered, whether the individuals in the
accounting firm are partners who function as owners of the
company, or whether they are employees of the company. The EEOC
has set forth guidance on this that talks about at what stage--
how you assess whether the individual has sufficient control to
be an owner as opposed to an employee.
Senator Alexander. If he's an owner, is it age
discrimination?
Mr. Lopez. If the individual is an owner, the individual is
not covered by the Act, not protected by the Act.
Senator Alexander. Not covered by the Act.
Mr. Lopez. And let me say, Senator, if I may, we're not
just talking about the Age Discrimination Act. If there's a
partner, and the partner functions as an owner, then that
individual would not be covered by the Age Discrimination Act
or any of the anti-discrimination laws.
Senator Alexander. But you're suing large accounting firms,
Deloitte and KPMG, I believe, without a single complaint from
an employee originally, alleging age discrimination with
mandatory retirement firms.
Mr. Lopez. Incorrect, Senator. We're not suing those
companies. We are not suing those companies.
Senator Alexander. You're investigating those companies.
Mr. Lopez. OK. Let me----
Senator Alexander. Is that correct?
Mr. Lopez. Well, I----
Senator Alexander. Yes or no?
Mr. Lopez. I can't confirm or deny whether there's an
ongoing investigation with respect----
Senator Alexander. Why not?
Mr. Lopez. Because of the confidentiality of the statute.
Senator Alexander. But you're required, if a case has a
high likelihood of creating public controversy, to submit that
case to the Commission for approval before you bring a case.
Mr. Lopez. Yes.
Senator Alexander. Let me ask you--given congressional
concerns with your investigating partnership agreements, will
you agree that in any future cases, if you were to bring a
case, you would submit it to the Commission before you do that?
Mr. Lopez. If I can unpack that a little bit----
Senator Alexander. I only have a few minutes. So yes or no?
Mr. Lopez. I'm not in charge of the investigations. The
investigations of the agency----
Senator Alexander. Who brings the cases? You do, do you
not?
Mr. Lopez. We would file the lawsuits, right.
Senator Alexander. But I'm asking you before you file a
lawsuit alleging age discrimination because a partnership
agreement includes a mandatory retirement age, would you submit
it to the Commission for approval before you do it?
Mr. Lopez. It depends on the facts of the case and----
Senator Alexander. So the answer is no, you wouldn't?
Mr. Lopez. No, that's not the answer, Senator. The answer
is that the Commission has separate delegation criteria and----
Senator Alexander. I'm not asking you that. I'm asking you
will you submit every case in the future about age
discrimination because of a mandatory retirement age to the
Commission for approval before you begin it? Yes or no?
Mr. Lopez. I will follow the delegation criteria----
Senator Alexander. Give me a yes or no, please.
Mr. Lopez. It depends on the case, Senator.
Senator Alexander. That's not a yes or a no. I really
resent the fact that you would come up here and not answer a
question yes or no.
Mr. Lopez. But it depends on the facts of the case.
The Chairman. Just a second. I am going to intervene here.
Senator Alexander. Mr. Chairman, you don't need to
intervene in my questioning.
The Chairman. I do need to intervene.
Senator Alexander. I think you do not.
The Chairman. I do.
Senator Alexander. I've got a right to have an answer.
Advise and consent is one of the most important rules of the
Senate, one of the most important functions. Now, you've
emaciated that by changing a rule. I've got a right to know
whether he's going to say yes or no.
The Chairman. I believe the witness has answered the
question by saying it depends on the case.
Senator Alexander. Mr. Chairman, you may have your opinion.
I have mine. That is not the question I was asking. I'll ask
another question.
Mr. Lopez. Senator, if I may, all I'm saying is that the
Commission has set forth delegation criteria, and I'll try to
follow them scrupulously. But what I will say is that the one
instance where I had a case like that before me, I submitted it
to the Commission.
Senator Alexander. And they said no.
Mr. Lopez. I submitted it to the Commission.
Senator Alexander. And they said no. Correct?
Mr. Lopez. Yes.
Senator Alexander. I have a second question on wellness
plans. Will you commit to submitting any future litigation
regarding employer wellness programs to the Commission for a
vote until after the Commission has issued guidance?
Mr. Lopez. I will submit--well, what I've done with the
last two cases, the merits cases that have been before us, is
I've submitted them to the Commission--on the merits cases.
Senator Alexander. The problem is that the Affordable Care
Act encouraged wellness programs. You're suing companies that
are attempting to provide wellness programs before you've given
guidance--before the Commission has given guidance about what
companies may do. That's discouraging employers who are trying
to give employees cheaper insurance if they lead a healthy
lifestyle.
So at least I would think you would wait--as long as
there's no guidance from the Commission, you would want to
submit a case to the Commission for approval before you bring
it. That's my question.
Mr. Lopez. We're responsible for enforcing the Americans
with Disabilities Act, and under longstanding guidance under
the ADA, an employer may not require an employee to disclose
confidential medical information unless it's done so
voluntarily.
Senator Alexander. So the answer is no. Is it true the
Commission has not submitted any guidance yet about how
companies may comply with the Affordable Care Act provisions
for wellness?
Mr. Lopez. Yes. I believe the Commission has not submitted
any guidance.
Senator Alexander. But you're suing anyway.
Mr. Lopez. The two merits cases I brought were submitted to
the Commission based on the facts of the case, and the facts of
the case involved in one instance where individuals were cutoff
completely from insurance and threatened with unspecified
disciplinary action. In the other case, an individual was
terminated when the individual objected to participating in the
program.
So consistent with the ADA, we brought those suits. But I
submitted them to the Commission prior to bringing those suits.
Senator Alexander. Thank you, Mr. Chairman. My time is up.
The Chairman. Thank you. Let's see. I have in order,
Senator Scott is next.
Statement of Senator Scott
Senator Scott. Thank you. Thank you for your willingness to
serve, to both of you.
I would like to continue along the line of Senator
Alexander as it relates to the ACA and whether or not it is
inconsistent or incompatible with the ADA. So your assertion
sounded to me like you were suggesting that the ACA is somehow
in conflict with the ADA as it relates to companies being able
to provide financial incentives for wellness programs.
Mr. Lopez. No, that's not my position. The position is that
the ADA and the ACA could be harmonized and presumably will be
harmonized. But when we bring the case--when we look at a case
to enforce the Americans with Disabilities Act, we look at the
guidance that has been established by the Commission.
And under the Commission's 2000 guidance, it discusses
under what circumstances medical information could be provided
pursuant to a wellness program, and it says that the
information must be provided voluntarily, and the guidance
says--and this is not guidance I created. It was created before
I got there----
Senator Scott. I don't want to interrupt you. The real
sense of urgency that you have--see, on our side, we get 5
minutes, and Senator Harkin is so quick to cut us off. We want
to make sure that we are consistent with our 5 minutes. So I
don't want to cut you off unnecessarily.
My question really drills down into the place where we
figure out whether or not the guidance that companies are
looking for has been requested, and if it was requested and not
received, then why are there lawsuits moving forward? I mean,
the vast majority of employers want to be consistent and in
compliance. They've asked for guidance, yet they have not
received guidance. But there is a suit out there versus
Honeywell that suggests that they are somehow in conflict with
a law without any guidance, even though they asked for the
guidance.
Mr. Lopez. Honeywell is a different situation because
that's not a merits suit, and I can talk about that more if
you'd like. But the two suits that we brought were very simply
because we believed there was a violation of the Americans with
Disabilities Act under longstanding EEOC guidance.
Senator Scott. So Honeywell would be different?
Mr. Lopez. Honeywell is a different situation because it
wasn't a merit suit. What that means is that when we went in
there, we were not seeking to end the wellness program, we were
not seeking damages, and we were not seeking to stop the
testing.
All we were looking for was a little breathing space to
conduct the investigation, because under that particular--to
know that the medical information, which included the
submission of blood samples, that that information was turned
over voluntarily. That's what we did in that case.
Senator Scott. Back to the case on mandatory retirement
agreements, I listened earlier to the fact that many times
there are complaints that are submitted--perhaps more than
75,000 complaints still out there not being addressed. And yet
there are some suits, some direction by the Commission or by
yourself, where there is no complaint and no victim, like
Deloitte or PWC, where you submitted it to the Commission and
they said don't move forward on that one.
Why the action where there are no complaints, where there
are no victims, when we're talking about a voluntary system of
retirement?
Mr. Lopez. Just because you don't have a charging party
doesn't mean you don't have a victim. But let me go back to
the----
Senator Scott. I would use as a backdrop 75,000 complaints
where you do have people who say they are victims, and yet
you're heading in the direction where there are no victims,
there have been no complaints, and we find ourselves wasting a
lot of resources in a direction perhaps without any
identifiable person who has suggested that there has been some
level of discrimination and/or some concern.
Mr. Lopez. Thank you, Senator. In the Commission's 2006
systemic task force plan, the Commission talked about directed
charges and Commission's charges as an important tool of the
Commission to address discrimination, because in some instances
individuals were intimidated from complaining. They didn't know
they were discriminated against. That was developed by the
Commission. That wasn't developed by me.
As the general counsel, I follow the guidance of the
Commission, and there hasn't been anything from the Commission
to indicate that we should not bring suits based on directed
charges or Commission charges. In fact, recently, in the
strategic enforcement plan, the Commission again reaffirmed the
importance of using directed investigations, which are a
statutory tool, to address issues of violations of the Equal
Pay Act.
Senator Scott. I think what you'll find here is that our
concerns are centered on the fact that there are so many
complaints, but so limited resources to go after those
complaints, and that we have very serious concerns. I would
conclude my remarks by stating the fact that over the last few
years, we've seen more than $5 million being paid out by the
EEOC because of the lawsuits and challenges they've brought
forward.
And some of the comments from some of the courts are very
disturbing. In the Bloomberg case, it was said that there is a
sue first, prove later environment. And in the home nurse case,
the court said EEOC's highly inappropriate search and seizure
operation, its failure to follow its own regulations, its foot
dragging, its errors in communication which caused unnecessary
expenses for the company, its demands for access to documents
already in its possession, and its dogged pursuit of an
investigation where it had no aggrieved person, no aggrieved
person, constitutes a misuse of its authority as an
administrative agency.
Finally, in Freeman, a Federal court found that the EEOC's
expert witness analysis contained a mind-boggling number of
errors and that its evidence was skewed, rife with analytical
errors, laughable, and an egregious example of scientific
dishonesty. Our concern--at least my concern is with the
limited resources we have, with 75,000 complaints out there,
pursuing cases where there is no aggrieved person is hard for
us to digest.
Thank you very much.
The Chairman. I would say to the Senator that the chair did
allow him to go over 1 minute and 24 seconds.
Senator Scott. Sir, I appreciate that very much. This is a
great day.
The Chairman. But we always go a second round, anyway.
Senator Hatch.
Statement of Senator Hatch
Senator Hatch. Thank you, Mr. Chairman.
Mr. Lopez, traditionally, the Office of General Counsel has
published an annual report that details its litigation
activities. However, a report has not been published since
2010. Why did these reports stop being published?
Mr. Lopez. Really, due to resources, Senator. To be honest,
due to resources. We don't have extensive resources. In
headquarters, we went through a two and a half year period
where there was enormous staff attrition, and, really, the
ethic of the program has always been that when we had an
opportunity to get positions, which is very rare, we would put
those positions out in the field, because a lot of the field
offices are really under water.
Senator Hatch. If reconfirmed, will you commit to
publishing these reports each year?
Mr. Lopez. Yes.
Senator Hatch. The EEOC received a charge on October 16,
2014, and filed suit on October 27, 2014, alleging that an
employer's wellness plan violated the Americans with
Disabilities Act and the Genetic Information Nondiscrimination
Act, or GINA. Given the time lapse of 11 days, how did the EEOC
investigate and conciliate this case before filing?
Mr. Lopez. Are you talking about the Honeywell matter,
Senator? As I mentioned, the Honeywell matter--we went in for
temporary relief. The way that the agency is structured is that
if a district director--now, the district directors are under
the chair--if the district director believes that temporary
relief is necessary in order to obtain--to complete the
investigation, the ongoing investigation, then the General
Counsel can go into court and seek temporary relief.
The reason that I keep emphasizing that this is not a merit
suit--the court said that. The court said this is not a merit
suit. When the court ruled in Honeywell--because we were not
going in there asking for damages. We were not going in there
asking for the end of the wellness program, and we were not
asking them to stop testing. All we were asking is that they
not impose penalties so that any disclosure of medical
information could truly be voluntary.
Remember, in this case, the disclosure of medical
information included the submission of blood samples. So that
really kind of elevated it in terms of the way that we looked
at the case.
Senator Hatch. Let me ask a little bit further to see if I
can get more information on it. As this involves a novel area
of the law and contradicts how other cabinet level agencies
interpret wellness plans under the Affordable Care Act, why was
this litigation not submitted to the commissioners for review
prior to the filing?
Mr. Lopez. The Commission, under ADA and GINA, has a
statutory right to go in and seek temporary relief. Under the
Commission's regulations that preexisted my tenure, the General
Counsel has been delegated the authority to go in and seek
temporary relief, presumably because of the ease of getting
into court or the quickness in terms of getting into court.
That had already been delegated. So what we did in that case
was consistent with the authority under the EEOC's regulations.
Senator Hatch. The relative minimal number of cases
referred to the Commission during your tenure as General
Counsel has been referred to, I think, a number of times during
this hearing. In addition, as demonstrated by court decisions,
EEOC needs to do a better job of meeting its statutory
obligations in figuring out which cases lack merit. I have not
heard how you review litigation from the field offices. How
many times have you rejected a litigation proposal from the
field?
Mr. Lopez. From the field offices?
Senator Hatch. Yes.
Mr. Lopez. I don't have a number, but we do reject
litigation proposals from the field, and, on occasion, we'll
send it back for additional conciliation if we think that it's
in the public interest. There is a search and review that goes
on in my office.
Senator Hatch. That's great.
Let me go to you, Ms. Burrows, and let me ask you this one
question. Employers are very concerned that lawsuits are moving
forward on wellness plans before EEOC issued any guidelines or
issued any guidance explaining how a wellness plan should be
structured to avoid discrimination. As the EEOC is an
enforcement agency of the Federal Government, how will you
monitor the publishing of guidance to comply with the current
law?
Ms. Burrows. Thank you, Senator. First of all, let me say
that I think it's clear that this is an area where guidance is
necessary. It's in the interest of employers. It's in the
interest of employees. And there are enough new obligations on
businesses that it makes sense for the Federal Government to
help them out on this one.
In terms of finding the right way to issue guidance, I
think it's extremely important to have input from everybody so
that you know you're getting it right. This is a new statutory
obligation on the business community. It's important to find
the right balance, and there's a lot at stake.
I think making sure that there's a transparent process,
that there's a process that allows the Commission to really
understand everyone's perspective, and where the rubber hits
the road that you have a very practical solution at the end of
it, is something that would be important. I know that the
Commission works through public hearings and that sort of
thing. Those--you know, the maximum amount of input on
something like that makes sense to me.
Senator Hatch. Thank you.
My time is up, Mr. Chairman.
The Chairman. Thank you.
Senator Paul.
Statement of Senator Paul
Senator Paul. Mr. Lopez, do you realize how enormous the
power would be if we were going to have a government that
initiates police action where there are no complaints? I mean,
there basically would be no limit to where you could look. So I
guess the first thing that comes to mind is we're going to have
the police selling illegal cigarettes, trying to get people to
buy them.
The thing is that I imagine you going into a business where
there's been no complaint, and you interview someone. You don't
get what you need, so you keep asking another question, another
question, another question. You finally get to a question where
the guy says, ``Oh, yes, I'm tired of old people, you know,
coming in here,'' and then all of a sudden--``Oh, my goodness.
Now we can do something.''
Do you realize the downside of the unlimited nature of
going after people with no complaints and what this is going to
do to business? Do you not understand that we've got to somehow
balance it? We want people to have jobs. You're going after law
abiding people where there's been no complaint, and you don't
feel at all any compunction or guilt over what you're doing?
How can you show up to work? How can you show up to work
with a straight face and prosecute people where there's been no
complaint? How can you do this? I don't understand how you
wouldn't resign immediately and say this is abhorrent. This is
so against what everything America stands for, that you would
go after people where there's been absolutely no complaint, run
them through the wringer and use the threat of your bully
nature of your office to punish business, and as a consequence,
punish the workers? I don't get it.
Mr. Lopez. Let me say a couple of things. First Senator, my
mother owned a shoe store for 15 years, that's the family I
grew up in. I understand the challenges of a small business
owner.
Senator Paul. Ask her how she would feel if you came into
her business and started harassing her over her hires.
Mr. Lopez. Second, let me answer your question with respect
to the structure of the agency. I take the cases that are
recommended to me from the investigation. I am not in charge of
the investigations.
Senator Paul. But let's say you were. Let's say you were in
charge of EEOC and you could make policy. Do you think this
policy of entrapment, of going into businesses that have
committed no crime and have had no complaint and ginning up and
looking for something--isn't that abhorrent? If you were in
charge, would you fix it? If you weren't told by anybody, would
you commit this crime of entrapment on people? Would you do
things differently if you could make the policy?
Mr. Lopez. I disagree that what the Commission is doing is
entrapment. Let me give you an example.
Senator Paul. You agree with the policy, then, so don't
defer it to someone else. You agree with the policy.
Mr. Lopez. Let me give you an example. Most individuals who
are discriminated against in the hiring process do not know
that they've been discriminated against because employers
usually do not say that they've been discriminated against.
Senator Paul. We're going after mythology, then. You have
no idea--the people who have been discriminated against don't
know it, and the people who have done it don't know it, and
you're going to come in as the arbiter of thought, and you are
going to decide what's correct. Realize there's a penalty. We
have an enormous amount of unemployment. Millions of people are
unemployed. Do you think you're helping employment or hurting
employment?
Mr. Lopez. The Commission in 2006 through the systemic task
force report said that the use of directed charges and
Commission's charges, both authorized under the statute, are
important tools of the Commission.
Senator Paul. Baseless charges.
Mr. Lopez. It didn't say baseless.
Senator Paul. Baseless would be without complaint. You have
no base until you go snooping around, looking for a problem
that no one complained about. You agree with this policy, then?
Mr. Lopez. I agree in some instances you have victims of
discrimination who are intimidated to come forward.
Senator Paul. I just can't imagine--if we were to talk to
real people in the real world, they couldn't imagine that you
would go after businesses where people don't know they've been
discriminated against, there's been no complaint of this, and
you would go after and persecute these businesses, and put them
through hundreds of thousands of dollars of legal fees. Do you
realize there are jobs lost in the process? Do you realize if a
business is teetering--whether they survive or not survive--
that you can bankrupt a business through the bully nature of
your pulpit.
You have 70,000 backlogged cases. Why don't you fix your
backlog before you decide to go out and persecute American
businesses? For goodness sake, how do you explain your backlog?
You have 70,000 cases waiting where people actually had a
complaint, a real--maybe valid, maybe not, but at least a
complaint. And you're going to go looking for things in
businesses that have no complaints. I think it's absolutely
inexcusable. I think it's un-American. I think it's
dishonorable. I can go on and on and on.
I hope you will rethink your position on these things. It
is something that we should eliminate, and I'll do everything
possible to make sure you're not allowed to do it anymore.
The Chairman. I'll say to my friend from Kentucky that we
had 32 intellectually disabled individuals working in a turkey
plant in Atalissa, IA. Some of them had been working there for
as long as 20 years, housed in horrible conditions by their
employer. After 20 years, some of them had nothing to show for
it, not even a penny to their names--intellectually disabled.
They didn't file a complaint with the EEOC. But someone was
watching this and tipped them off and said, ``You know, there's
something funny going on there.''
Senator Paul. That sounds like a complaint.
The Chairman. No, it wasn't a complaint.
Senator Paul. I'm not talking about the mentally
incompetent. I'm sure we could have----
The Chairman. It was not a complaint. They started an
investigation of a legitimate business that was operating in
Atalissa, IA.
Senator Paul. I have a business in Kentucky, and they will
not even reveal who made the complaint or if there's a
complaint. And here's my question. How many times are you doing
that? Hundreds?
The Chairman. I'll say to my friend from Kentucky that I'm
not certain I'll ever know who tipped them off about that. But
they took it under advisement. They started an investigation
and found a cesspit, a cesspit.
Senator Paul. Shouldn't you be able to confront your
accusers?
The Chairman. And by the way, that company, Henry's Turkey
Service, because of the judgment against them of $240 million,
went bankrupt.
Senator Paul. Shouldn't you be able to confront your
accuser? In America, should you confront your accuser, or
should your accuser be anonymous?
The Chairman. There was not an accuser. There was a tip-
off, and they found that these people had been employed and
discriminated against in violation of all kinds of different
civil rights acts, but mainly the Americans with Disabilities
Act, among others. So I say to my friend that there was no
complaint filed. These were intellectually disabled people.
They had no knowledge that they were actually being
discriminated against.
Senator Paul. Yes, but here's the thing. We're looking at a
service industry. We have a lot of young people working at a
restaurant----
The Chairman. Do you think the EEOC should have
investigated that or not?
Senator Paul. It sounds like yes. But my point is if you
have a service industry--restaurants. We have a restaurant
chain that's being harassed in my State. They have young people
working there. Young people work in the service industry. Is
that enough evidence to persecute them for age discrimination?
That's ridiculous. It is an absurd abuse of government and
should end.
The Chairman. What the Senator from Kentucky--what I heard
him say--I'll check the record. I don't know. But I thought I
heard him say it was abuse of government power to investigate
these kinds of things when there's been no complaint filed. I
just gave an example of one where no complaint was filed, but I
thought it was a very legitimate use of the government using
the laws that we passed here to go ahead and investigate what
someone tipped them off to be a very egregious violation of
civil rights laws.
I think in those cases, yes, the government is doing the
proper thing by protecting people who otherwise have no one
else to protect them. I just wanted to make that case, that it
doesn't have to be a complaint at all. I've gone over my time,
too.
Senator Alexander.
Oh, I'm sorry. Senator Franken. I apologize.
Statement of Senator Franken
Senator Franken. That's all right. I apologize. I had to go
to make quorum at an Energy Committee hearing, and so I missed
a lot. I was here for the testimony and some of the
questioning. But it got exciting while I was away.
[Laughter.]
That's always good. I understand that we got into the issue
of workforce wellness programs.
Mr. Lopez. Yes.
Senator Franken. I missed some of that, and I'll read it
when I get back. But to me it's an interesting area, because
I'm a supporter of wellness programs because I believe in
preventive care. I believe that a healthy diet and exercise and
timely medical care can bring--they've been shown to bring
down--I don't believe this, I know this--bring down the cost of
healthcare, and they improve people's long-term health and
short-term health and make them feel better.
But I'm also a strong advocate for privacy and civil rights
protections for workers. So I believe these programs have to
strike a balance between giving people an opportunity to
improve their healthcare outcomes and their costs maybe on
their insurance. I know in the Act, we've said that if you
smoke, you can be charged more, right? But we also have to
respect people's rights and refrain from discrimination. I'm
not sure about what the back-and-forth has been.
But, Mr. Lopez, can you speak to how you strike that
balance, how your office has been striking that balance? And
where have there been some--where is the controversy here?
Where have the problems been, and how have you been addressing
them? And if there are some that are outstanding that you can't
talk too specifically about, could you talk generally about
them?
Mr. Lopez. I am a supporter of wellness programs. Under the
Americans with Disabilities Act, an employer can ask for
information pursuant to a wellness program provided that it's
turned over voluntarily. Under the EEOC's longstanding
guidance, which I think was adopted in 2000, the whole issue of
voluntariness looks at whether there are penalties attached to
the request for medical information.
I believe you were out of the room, Senator, but I
discussed two of the cases that we filed, and in those cases we
alleged that the individuals were required to pay all the
premiums when they didn't agree with the wellness plan. And in
the other case, the employees were told that they would be
subject to unspecified disciplinary action and that they had
their insurance cutoff altogether.
Senator Franken. That one was not allowed and the first
one----
Mr. Lopez. Yes.
Senator Franken. Or you took action against the second one?
Mr. Lopez. Those are the two merits cases that we filed,
and there's certainly recognition that the Commission has not
weighed in here. Because of that, those cases went to the
Commission for litigation approval, and, presumably, the
Commission looked at those cases and said that in those cases,
there was sufficient evidence that the information was not
being--that individuals were being coerced into involuntarily
turning over medical information in violation of the Americans
with Disabilities Act.
Senator Franken. What I'm trying to figure out is what's
coercive, say you're taking a blood test or some kind of test
to determine whether you smoke or not?
Mr. Lopez. Yes.
Senator Franken. Can you do that? Is there such a test, a
blood test----
Mr. Lopez. I don't know.
Senator Franken [continuing]. I guess to find nicotine,
right?
Mr. Lopez. I don't know if there's a----
Senator Franken. Well, then, I'm asking a hypothetical
question that no one knows whether it's a hypothetical or a
real question, so let's forget it. Let's go on to my next--OK,
cholesterol. But we have no penalties for preexisting
conditions. I wouldn't think that having high cholesterol would
be a reason for you to be charged more for your insurance.
The Chairman. This isn't my area.
Mr. Lopez. It's not the----
Senator Franken. I'm asking the Chairman a question.
[Laughter.]
The Chairman. It's not the cholesterol. It's the taking of
the blood that can then be used for other reasons, to examine
what else may be wrong, or something like that. You can use a
blood sample for a lot of things. It could be for cholesterol,
but it could be for a lot of other things.
Senator Franken. Oh, I see. Is the part that would draw
your scrutiny that it's being used for other things? Or what
would bring your attention?
Mr. Lopez. If the individual doesn't have a choice as to
whether to turn it over, whether the disclosure of medical
information is done involuntarily.
The Chairman. This is a fine point, and the Senator is
correct and others who have pointed out--this is a very dicey
point, and I've been involved in both sides, on the ADA and
also on the wellness provisions. I put it in the ACA. The
problem is forcing someone to disclose why they do not want to
be a part of the wellness program. That's the problem.
Let's say that I have a certain disability, but I do my
job. I function well at my job. I meet all the requirements.
But if I don't want to be a part of the wellness program, which
means part of it is I have to take a blood test, and I don't
want that blood test taken. The problem is being forced to say
why I don't want to be a part of that wellness program.
Senator Franken. OK. And is the part that's coercive
possibly just the penalty, the financial penalty? Is that what
you guys have determined?
Mr. Lopez. That is what the Commission's 2000 guidance
says.
Senator Franken. OK. I see. There you go. Thank you, and I
look forward to voting for you both.
The Chairman. It is a very fine point.
Senator Franken. It's an interesting area.
The Chairman. It's a very fine point. I agree.
Senator Alexander.
Senator Alexander. Thanks, Mr. Chairman. Just so I
understand, let's say I'm at X Company, following up Senator
Franken's question, and they have a wellness program, and I
have to give blood to be a part of the wellness program and get
lower premiums. If I decline to join the program because I
don't want to give blood, is that discrimination?
Mr. Lopez. You can voluntarily disclose your blood----
Senator Alexander. But say I----
Mr. Lopez. If there are penalties attached to it, then----
Senator Alexander. The penalty would be you don't get the
cheaper insurance. Is that right?
Mr. Lopez. Yes.
Senator Alexander. And you get a higher premium.
Mr. Lopez. Under the Commission's guidance, it talks about
penalties as being determined by whether it's voluntary. That's
what the Commission----
Senator Alexander. Yes, but that's the whole point of a
wellness program. You get a cheaper premium if you lead a
healthy lifestyle. So I say I don't want to give you my blood.
I don't want to participate in the wellness program. Therefore,
I have to pay a higher premium. But are you saying that amounts
to discrimination?
Mr. Lopez. Not necessarily. It depends on the case,
Senator. It depends on the case. But the two merits cases that
we filed--in one instance, the employees were subject to
unspecified disciplinary action. In the other case, they were
cutoff from insurance altogether.
Senator Alexander. Ms. Burrows, I think this emphasizes the
importance of guidance so employers can initiate wellness
programs wherever they can. And while we're on the subject of
guidance, at least once in the last couple of years, you've
issued significant guidance without allowing the public to
comment on the draft. I'm thinking of the criminal background
check guidance.
If confirmed, will you work to allow the public to comment
on EEOC's draft guidances before they're issued?
Ms. Burrows. Thank you, Senator. To clarify, I was not on
the Commission and did not take part in the Commission's
deliberations on the guidance.
Senator Alexander. Right. Yes. I understand that.
Ms. Burrows. But, yes, I think it's very important to have
input from all the stakeholders. Otherwise, you're not sure
you're going to get to the right place.
Senator Alexander. Yes, and input would mean, ``Here's the
proposed guidance. What do you think about the language of this
proposed guidance?'' Would that be your idea of input?
Ms. Burrows. As you've described it, it sounds somewhat
like notice and comment kind of rulemaking, and that's one way
to----
Senator Alexander. Almost the way you would do it in--but I
don't think it's--if you just asked me generally what I think
about a wellness regulation, I might be like Mr. Lopez. I might
say it could be this, or it could be that, or it could be this,
depending on hypothetical. If you lay some language out in
front me and say, ``This is what we're proposing to do, and
you've got a little time to tell us what you think,'' that is
what I would consider to be input on guidance.
Ms. Burrows. Oftentimes, I think that makes sense, and,
certainly, you have to pose the question to the public, however
the method is, with enough specificity so that you get a real
answer and that you're sure you're having a real back-and-forth
dialog.
Senator Alexander. So you're not willing to say that you
would ask for public input on a draft guidance before you
issued it?
Ms. Burrows. I think that may be perfectly appropriate on a
number of occasions. I don't have any reason to say it would be
a bad idea in the example you posed or in any other. But I
think that's something--from the outside looking in, not being
familiar with how the Commission proceeds, I would want to ask
both the Republican and Democratic members of the Commission
what the best way is to approach that problem.
Senator Alexander. I have a growing concern about guidance.
I see the value of guidance, as we've talked about in the case
of harmonizing ACA and ADA and the wellness issue. It would be
a help to employers to have some specific advice about what
they can do and what they can't do.
But since those guidances increasingly seem to have the
rule of law--that was the testimony I got from the civil rights
person at the Education Department--I think if you're going to
issue a draft guidance in a significant case, one that might be
controversial, like wellness, I think it would be wise to allow
public comment on the actual draft of the guidance rather than
just collect general opinions on the subject. That's my
suggestion.
That's all I have, Mr. Chairman.
The Chairman. Mr. Lopez, I want to go back to this issue of
wellness and penalties. Since I was a chief sponsor of the ADA,
and also I was the chief architect of the wellness and
prevention programs in the Affordable Care Act, I care about
both of those.
The case that we're talking about here--is this not sort of
the facts of the case, that the person in this company had--the
company had instituted a wellness program that required certain
medical examinations and blood tests. This employee declined to
participate. The company, Orion Energy in Wisconsin, then
shifted the responsibility for paying the entire premium of
$413.43 a month to her from the employer.
Mr. Lopez. Correct.
The Chairman. She then had to pay $413.43 more per month.
Mr. Lopez. Correct.
The Chairman. Then she had to pay a $50 monthly penalty for
not taking part in the fitness component, and shortly
thereafter, she was fired for her refusal to participate.
Mr. Lopez. Correct. That's what we allege in the lawsuit.
The Chairman. Those are the facts of the case.
Mr. Lopez. That's what we allege in the lawsuit, yes.
The Chairman. I've thought about this a lot because I've
had similar things coming in to me about wellness programs
through HHS, of course, on this. And to the point where someone
is penalized drastically for not submitting a blood sample and
to participate in a medical examination, it's quite intrusive.
I know a lot of companies have wellness programs that don't
require you to do anything like that. But they have wellness
programs, and they set up goals. Our goal in this company is to
reduce smoking, to reduce BMI, to reduce cholesterol, to do a
lot of different things to meet certain wellness programs and
prevention.
What we did in the Affordable Care Act--we put in a 30
percent leeway. In other words, an employer can cut their
employees' cost of their healthcare by up to 30 percent by
participating in a wellness program.
This is not in your bailiwick, but just for general
information, we've asked HHS again to look at things like--a
company could have a wellness program with--here are the goals.
If any employee cannot participate in that wellness program but
can meet those goals in other ways voluntarily, that's fine,
too.
It doesn't have to be just that prescribed kind of system
that they--because everybody is not the same. Not everybody can
do the same thing. But if they set up certain goals, there may
be other ways for them to voluntarily meet those goals.
The facts in this case were quite egregious, where this
person was penalized drastically and then fired because she
would not participate in this wellness program and because she
wouldn't submit to a medical examination and a blood test. That
case is way out there. I'm sure there are others that are much
more close to being a fine point of law than that one. That was
not a fine point of law.
That's why I said to Senator Franken that sometimes these
can be very fine points, and I know that the Commission has to
wrestle with these. I assume that as we move forward with both
the protection of people under civil rights laws, but also
move, hopefully, with better wellness and prevention programs,
that these things will tend to kind of sort themselves out. But
we can't take one case which is egregious and say this fits
everything else. We can't. Egregious cases like this have to be
responded to. There will probably be other cases that will be
much more finely attuned than something like that.
But it's something that I know the Commission is going to
have to grapple with probably in the future. I'm sure this
committee under the able leadership of Senator Alexander will
be looking at these things down the road, making sure that two
things are fulfilled, that we do, in fact, protect people and
their rights under the ADA and others and make sure, as Senator
Paul said, that the government doesn't go too far in trying to
interfere in the business' rights to set up its own wellness
programs. These are all things that take time to work out.
So I hope the Commission--Ms. Burrows, you'll be on the
Commission. I hope that you will take these things into account
and try to examine ways with HHS and through the Affordable
Care Act that we can continue to have good wellness programs in
our businesses without going to the extent that this company
went to.
I didn't ask any questions. I just had that statement.
That's all.
Do you have any other questions? Is there anything else
that either one of you want to comment on before we call this
to a close?
Ms. Burrows. No, but thank you very much for your time.
The Chairman. Thank you both very much, and hopefully, we
can move these nominees very shortly. We appreciate it.
[Additional material follows.]
ADDITIONAL MATERIAL
Response by Charlotte A. Burrows to Questions of Senator Alexander
Question 1. There are currently more than 70,000 charges of
discrimination pending at EEOC. If confirmed, would you support EEOC's
continuing focus on conducting investigations without an employee
charge instead of spending EEOC's resources to eliminate the backlog of
employee complaints of discrimination?
Answer 1. If confirmed, I would consider ensuring the timely
processing of pending charges a high priority for the Equal Employment
Opportunity Commission (EEOC or Commission). When the Commission cannot
timely review charges, they may become more difficult to investigate,
as witnesses may become unavailable or their memories may fade. In
addition, resolving charges promptly provides much-needed closure for
both charging parties and employers.
Before reaching any determination regarding the most effective use
of Commission resources, I would seek the views of the Chair and each
of the other Commissioners, and take those views into account in
forming my own judgment.
Question 2. If confirmed, would you bring to the commission any
ideas about how to help reduce the backlog?
Answer 2. As noted above, timely resolution of charges should be a
high priority for the Commission. As an outsider to the Commission, I
do not know what methods the EEOC has already tried in this area, nor
with what success. Accordingly, I would approach the question of how to
most effectively address the backlog with an open mind and would work
to learn more about the issue and to offer concrete solutions to the
Office of the Chair.
Question 3. Do you believe the commission should continue to
allocate its resources toward a 4-year investigation into mutually
agreed upon partnership agreements considering the commission already
determined an almost identical case did not merit litigation?
Answer 3. I am not familiar with the specific investigation or the
Commission decision to which this question refers and therefore have
not formed any view on this matter.
Question 4. What are your views on the use of ``testers''--
individuals who apply for positions they do not intend to accept for
the purpose of determining whether discriminatory hiring processes
exist?
Answer 4. I have not worked with testers in employment
discrimination suits. I am not aware that the EEOC has used testers in
employment discrimination cases. If confirmed, I would want to become
more familiar with the issue, and confer with my colleagues on the
Commission, stakeholders, and experts, before taking a position.
Question 5a. Some of the current EEOC commissioners have expressed
support for increasing the commission's role in approving litigation.
If confirmed, would you support that change?
Answer 5a. I am not familiar with the proposal referenced above and
therefore have not yet formed a view regarding it. Before reaching a
determination regarding the level of the Commission's involvement in
litigation, I would want to understand the perspectives of the other
Commissioners, EEOC litigators, and stakeholders.
Question 5b. How much involvement do you think the commission
should have in litigation decisions?
Answer 5b. It is important that the Commission ensure that the
EEOC's litigation effectively furthers the agency's priorities, and if
confirmed, I would take seriously the Commission's duty to exercise
oversight of litigation. As noted above, however, I would want to
consult with others before forming a view regarding the appropriate
level of Commission involvement in litigation.
Question 6. If confirmed, would you support including in EEOC's
annual Performance and Accountability Report the number of times, and
the amounts, EEOC is ordered to pay defendants in attorney's fees and
other court costs each year, including those instances where fees were
awarded but not necessarily paid?
Answer 6. With respect to decisions about changes to the
Commission's annual Performance and Accountability Report, I would seek
the views of the Chair and other Commissioners of both parties and all
relevant stakeholders before forming my own opinion about what
information should be included in the report.
Question 7. What do you believe to be the downsides of publicly
circulating--for comment and review--commission guidance at least 30
days prior to implementation?
Answer 7. The Commission's procedures for developing guidance
should provide sufficient advance notice to the public regarding the
subject matter of the guidance to permit relevant stakeholders to offer
meaningful input before the guidance is finalized. I am not
sufficiently familiar with the details of the EEOC's procedures for
developing guidance to describe potential drawbacks of any particular
method for obtaining public input, which are likely to vary depending
on the subject matter of the guidance.
Question 8. Do you believe that outside attorneys, employers,
employees and their advocates could provide useful comments regarding a
draft guidance which may make the guidance more useful?
Answer 8. Yes. I believe that outside attorneys, employers,
employees and their advocates, as well as other stakeholders, can
provide valuable perspectives to assist the Commission in developing
guidance.
Question 9. Thirteen States have restrictions on the use of credit-
related background checks in employment. Those laws all include common
sense exemptions, including permitting the use of such checks for
executive level positions and positions handling cash, credit cards, or
sensitive personal information. Do you believe there are instances
where the use of credit background checks are relevant, and even
necessary, for certain jobs?
Answer 9. Yes. In some instances the use of credit-related
background checks in employment can be job-related and consistent with
business necessity. Whether a particular employment practice is
relevant or necessary would depend on the specific nature of the
practice and its application.
Question 10. The EEOC has been criticized by courts and employers
for its failure to engage in meaningful conciliation of potential
litigation, as required under Title VII of the Civil Rights Act.
Stakeholders have expressed concerns ranging from unrealistic proposals
for settlement to a capricious mentality providing stakeholders with
little information as to the basis for such settlement demands. Are
there steps you would suggest to improve the Commission's conciliation
processes and maximize its potential for resolving claims short of
litigation?
Answer 10. Resolving charges of discrimination without the need for
contested litigation conserves the Commission's resources, and serves
the interests of both charging parties and employers. Accordingly,
successful conciliation should be a high priority for the EEOC. If
confirmed, I would seek to learn more about the current conciliation
practice and any concerns identified before making suggestions in this
area.
Question 11a. On July 14, 2014, the Equal Employment Opportunity
Commission (EEOC) issued guidance regarding pregnancy discrimination,
entitled ``EEOC Enforcement Guidance on Pregnancy Discrimination and
Related Issues'' (2014 guidance). The guidance reaffirmed the
commission's December 2000 guidance, entitled ``Commission Decision on
Coverage of Contraception'' (2000 guidance). The 2014 guidance asserts,
``[e]mployers can violate Title VII by providing health
insurance that excludes coverage of prescription
contraceptives, whether the contraceptives are prescribed for
birth control or for medical purposes.''
In reaching this conclusion, EEOC cites the commission's 2000 guidance
and the Patient Protection and Affordable Care Act; however, the 2014
guidance was issued after the Supreme Court ruled in Burwell v. Hobby
Lobby Stores, Inc. (Hobby Lobby).
The guidance makes only one mention of the Supreme Court decision,
in a footnote, stating:
``[t]his enforcement guidance explains Title VII's
prohibition of pregnancy discrimination; it does not address
whether certain employers might be exempt from Title VII's
requirements under the First Amendment or the [Religious
Freedom Restoration Act].''
Commissioner Lipnic, in her dissenting statement to the 2014 guidance,
states the 2014 guidance needs to be,
``thoroughly reviewed in light of [Hobby Lobby], particularly
insofar as it held . . . certain employers may not lawfully be
compelled to provide all forms of contraception.'' Commissioner
Lipnic also states, ``[a]t a minimum, the Court's [Hobby Lobby]
decision dictates a full and substantive review of the
[c]ommission's guidance on this topic, and the strength and
validity of its legal position.''
Do you believe the 2000 and 2014 guidance are consistent with the
Hobby Lobby decision? Please be specific and thorough in your analysis.
Answer 11a. In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751
(2013), the Supreme Court held that, as applied to for-profit, closely
held corporations, the regulations promulgated by the Department of
Health and Human Services requiring employers to provide female
employees with health care coverage for contraceptives violated the
Religious Freedom Restoration Act (RFRA). The Hobby Lobby decision
addressed only the application of RFRA to the religious objections of
closely held corporations regarding HHS' contraception mandate. The
case did not involve, and the Court did not address, RFRA's application
in the context of claims that an employer's denial of contraceptive
coverage for religious reasons constituted sex discrimination in
violation of Title VII of the Civil Rights Act of 1964. However, the
majority opinion expressly rejected the idea that its holding allows
``discrimination in hiring, for example on the basis of race, [to] be
cloaked as religious practice to escape legal sanction.'' Id. at 2783
(stating that the Hobby Lobby decision ``provides no such shield''
against claims of unlawful job discrimination). As such, neither the
2000 ``Commission Decision on Coverage of Contraception'' nor the 2014
``EEOC Enforcement Guidance on Pregnancy Discrimination and Related
Issues,'' appears to conflict with the Supreme Court's decision in
Hobby Lobby.
Question 11b. If confirmed, will you commit to a thorough and
substantive review of the guidance in light of the Supreme Court's
decision in Hobby Lobby to ensure the guidance is in accordance with
the Supreme Court's decision?
Answer 11b. If confirmed, I will review the EEOC's 2014 guidance on
pregnancy discrimination and any decisions of the Supreme Court and
lower courts interpreting Hobby Lobby to ensure that the guidance
comports with relevant case law.
Question 12. If confirmed, will you commit to cooperating with
congressional oversight of EEOC, including document requests, and to
work with the IG and GAO in any studies/investigations that they may
undertake?
Answer 12. Yes.
Question 13. If confirmed and you are asked to personally meet with
Members of Congress or their staff, are you willing to do so?
Answer 13. Yes. If confirmed, I would welcome input from Members of
Congress and congressional staff.
Response by P. David Lopez to Questions of Senator Alexander, Senator
Isakson, and Senator Paul
senator alexander
Question 1. How does EEOC decide whether to spend resources on
litigating cases without charges (directed investigations or
commissioner charges) verses cases that are based on a charge?
Answer 1. The Office of General Counsel has not considered whether
the cases it recommends to the Commission for litigation, or approves
for litigation under delegated authority, are based on a directed
investigation or Commissioner's charge. By the time a matter reaches
the Office of General Counsel for a litigation determination, the
evidence of whether discrimination has occurred is well-developed by
EEOC investigators reporting to the agency's Office of Field Programs.
The focus of litigation determinations is always on the facts, the law
and Commission policy and procedures. The nature of the original charge
is not determinative.
Question 2. Are you involved in working to eliminate EEOC's backlog
of charges? If so, what is your involvement and how do you prioritize
that involvement with litigation decisions?
Answer 2. No. The Office of Field Programs, under the Office of
Chair, is responsible for the investigation and processing of charges,
including reducing the backlog of charges. The general counsel only has
authority over the litigation.
Question 3. How do you ensure your decisions not to send cases to
the commission are consistent and in accord with the Strategic
Enforcement Plan's exceptions to the general counsel's litigation
authority?
Answer 3. I scrupulously follow the delegation criteria established
by the Commission. Career staff identifies cases that may require
Commission review based on the criteria and take appropriate steps to
ensure the issues in the case are crystallized and that we have the
best estimate of resources required for the case. Then, I review the
recommendations. With respect to whether a matter may engender public
controversy, I look at previous issues that have engendered
controversy, input from the Commissioners, feedback from my numerous
stakeholder meetings, and the general environment surrounding an issue.
The Commission established a process in the Strategic Enforcement
Plan to examine the effectiveness of delegation. This includes the
submission of quarterly reports to the Commission and quarterly
meetings. As part of this process, no member of the Commission has
identified any case it believes should have been submitted to the
Commission for approval by my office that was not.
Question 4. Your office has failed to publish an annual report
since 2010. At the hearing, you agreed to resume publishing Office of
General Counsel annual reports if confirmed. If you are confirmed, by
what date will you commit to publish this report?
Answer 4. The fiscal year 2011 annual report will be published by
January 30, 2015.
Question 5. If confirmed, will you include in the Office of General
Counsel annual reports the number of times, and the amounts, EEOC is
ordered to pay defendants in attorney's fees and other costs each year,
including those instances where fees and costs were awarded but not
necessarily paid?
Answer 5. Yes.
Question 6. EEOC publicly reports on the number of cases
``resolved'' instead of wins and losses in the courts. If confirmed,
will you include in the Office of General Counsel annual reports the
number of cases won, lost, and on appeal each year?
Answer 6. Yes.
Question 7. What specific actions have you taken to review and
evaluate EEOC litigation losses? Have you implemented any changes due
to EEOC litigation losses?
Answer 7. Last year, the Office of General Counsel was able to
resolve or win 93 percent of the cases filed. By any measure, this is
outstanding. Still, I believe we can learn from all our cases--both the
wins and the losses--and have stressed extensively during my tenure a
culture of examining ``lessons learned'' in order to carry out our law
enforcement mission more effectively and efficiently. This includes a
personal review of cases where we have been subject to fees;
discussions with the attorneys involved; a discussion of the cases on
monthly regional attorney calls including lessons for the program; an
adjustment of any internal practices, if appropriate, to ensure we
improve our law enforcement performance and don't repeat our mistakes;
and a broader discussion of the issues in formal training sessions
during, for example, our annual Regional Attorney meetings.
Additionally, significant adverse decisions are circulated to all
attorneys.
Question 8a. In your current role as general counsel, do you play
any role in defending EEOC when it has been accused by its employees of
discrimination?
Answer 8a. Yes. Internal Litigation Services, a division in the
Office of General Counsel, represents the agency when it has been
accused by its employees of discrimination. If the matter goes up on
appeal, Appellate Services, also a division within the Office of
General Counsel, handles the appeal.
Question 8b. If so, does EEOC take the same legal position in those
cases as the EEOC does when suing private employers?
Answer 8b. Yes. In fact, Internal Litigation Services was placed
under the supervision of the general counsel primarily to help ensure
consistency in the legal arguments we make in defensive and affirmative
litigation.
Question 9. If confirmed, will you commit to cooperating with
congressional oversight of EEOC, including document requests, and to
work with the IG and GAO in any studies/investigations that they may
undertake?
Answer 9. Yes. This is already a regular practice for the Office of
General Counsel. For example, my office regularly participates in
meetings convened with GAO at the agency by the Office of
Communications and Legislative Affairs.
Question 10a. If confirmed and you are asked to personally meet
with Members of Congress or their staff, are you willing to do so?
Answer 10a. Yes. During my tenure as general counsel I have
consistently made myself available to meet with Members of Congress.
The only member to make such a request was Congressman Tim Walberg. I
met with him promptly and participated in subsequent followup
correspondence.
Question 10b. On July 14, 2014, the Equal Employment Opportunity
Commission (EEOC) issued guidance regarding pregnancy discrimination,
entitled ``EEOC Enforcement Guidance on Pregnancy Discrimination and
Related Issues'' (2014 guidance). The guidance reaffirmed the
Commission's December 2000 guidance, entitled ``Commission Decision on
Coverage of Contraception'' (2000 guidance). The 2014 guidance asserts,
``[e]mployers can violate Title VII by providing health
insurance that excludes coverage of prescription
contraceptives, whether the contraceptives are prescribed for
birth control or for medical purposes.''
In reaching this conclusion, EEOC cites the Commission's 2000 guidance
and the Patient Protection and Affordable Care Act; however, the 2014
guidance was issued after the Supreme Court ruled in Burwell v. Hobby
Lobby Stores, Inc. (Hobby Lobby).
The guidance makes only one mention of the Supreme Court decision,
in a footnote, stating:
``[t]his enforcement guidance explains Title VII's
prohibition of pregnancy discrimination; it does not address
whether certain employers might be exempt from Title VII's
requirements under the First Amendment or the [Religious
Freedom Restoration Act].''
Commissioner Lipnic, in her dissenting statement to the 2014 guidance,
states,
the 2014 guidance needs to be ``thoroughly reviewed in light
of [Hobby Lobby], particularly insofar as it held . . . certain
employers may not lawfully be compelled to provide all forms of
contraception.'' Commissioner Lipnic also states, ``[a]t a
minimum, the Court's [Hobby Lobby] decision dictates a full and
substantive review of the [c]ommission's guidance on this
topic, and the strength and validity of its legal position.''
Do you believe the 2000 and 2014 guidance are consistent with the
Hobby Lobby decision? Please be specific and thorough in your analysis.
Answer 10b. The EEOC fully considered the Hobby Lobby decision
prior to issuing the 2014 Enforcement Guidance on Pregnancy
Discrimination. The Commission, not the general counsel, establishes
policy. This policy, as well as the relevant circuit law, informs the
litigation positions. The Commission continues to believe that the
decision in Hobby Lobby does not alter the EEOC's Title VII analysis in
either the 2000 Commission Decision on Coverage of Contraceptives or
the 2014 Enforcement Guidance. The Hobby Lobby case addressed only
whether the Patient Protection and Affordable Care Act's contraceptive
mandate violated the Religious Freedom Restoration Act (RFRA), not the
application of the RFRA or the First Amendment to Title VII. The EEOC
documents instead explain that Title VII prohibits discrimination
against women on the basis of gender with regard to coverage of
prescription contraceptives in an employer's health insurance plan.
Thus, the Enforcement Guidance is not inconsistent with Hobby Lobby; it
simply does not address the specific issues raised in that case. To the
extent the decision says anything about its applicability outside the
context of the specific laws and regulations that were at issue in the
case, the Supreme Court noted that the decision provides ``no shield''
for employers who might assert that their religious beliefs conflict,
for example, with Title VII's prohibition on race discrimination.
Question 10c. If re-confirmed, will you commit to submitting all
lawsuits predicated upon the 2000 or 2014 guidance to the Commission
for a vote?
Answer 10c. I will follow the criteria established by the
Commission governing the delegation of litigation authority. The
Commission has not required the submission of cases where it has
weighed in with policy guidance. Additionally, for the reasons
explained above, the decision in Hobby Lobby does not alter the EEOC's
Title VII analysis in either the 2000 Commission Decision on Coverage
of Contraceptives or the 2014 Enforcement Guidance. The 2014 Guidance
also deals with many issues apart from the coverage of contraceptives,
about which there is well-established Commission policy.
Question 10d. Do you believe the guidance is regarding a developing
area of law (given the recent Hobby Lobby decision) or has a high
likelihood for public controversy?
Answer 10d. There is no case implicating Hobby Lobby before me.
With respect to the first part, the assessment of whether any case
presents an ``emerging issue'' or meets the criteria of the Strategic
Enforcement Plan will be based on the specific facts of the case and
any legal issues presented in the case. With respect to the second
part, I am sensitive to the scope and intensity of interest surrounding
the issue at the present time. Should this remain constant, depending
on the specific facts of the case, this will undoubtedly be a factor in
any decision.
Senator Isakson
Question 1. Recently, EEOC Staff investigated
PricewaterhouseCoopers for including a mandatory retirement age in its
partnership agreements. As general counsel, you submitted that case to
the Commissioners for a vote, but the Commissioners decided against
litigation. Why is the EEOC Staff investigating Deloitte for the same
type of partnership agreement as PricewaterhouseCoopers, when the
Commission already decided the issue did not merit litigation? Are the
legal issues any different in the two cases?
Answer 1. Administrative investigations are conducted by the EEOC's
District and Field Directors as designated by the Commission. The work
of these individuals is governed by the statutory provisions of the Age
Discrimination in Employment Act. The key EEOC policy document with
respect to partner-employee coverage is the Compliance Manual Section
on Threshold Issues, first issued on May 12, 2000.\1\ The facts of each
case are unique. If, based on the facts, the EEOC's investigative staff
concludes that discrimination has occurred and conciliation efforts
fail, the matter will be reviewed by field legal unit staff and may be
referred to the Office of General Counsel with a litigation
recommendation. If I ultimately concur in the recommendation, I will
apply the standards set forth in the Commission's Strategic Enforcement
Plan that govern the circumstances under which litigation should be
sent to the Commission for approval.
---------------------------------------------------------------------------
\1\ See Compliance Manual Section 2: Threshold Issues, supra note
3.
Question 2. I am concerned that the EEOC is again pursuing
partnership agreements relating to mandatory retirement age. As you
know, recently the staff pursued a partnership agreement of a large
accounting firm but decided to allow the Commissioners to vote on
whether to pursue litigation. Since the EEOC is now considering a
similar case against another large accounting partnership, will you
once again recommend the Commissioners vote on whether to pursue
litigation?
Answer 2. See response to Question 1.
Question 3. Recently, the WSJ reported that the EEOC has challenged
Deloitte's mandatory retirement age for partners and referenced the
testimony of Deloitte's general counsel at a congressional hearing. Do
you believe that a congressional hearing as well as the reporting in a
major newspaper indicate that this matter is one of public controversy
requiring a vote of the Commissioners? If not, why did the EEOC
Commissioners vote on a similar case against PwC within the last 2
years?
Answer 3. The Strategic Enforcement Plan (SEP) sets forth the
standards that govern the circumstances under which litigation should
be sent to the Commission for approval. Under the SEP, the general
counsel must send litigation to the Commissioners for approval when the
case (1) involves a major expenditure of resources; (2) presents issues
in a developing area of law where the Commission has not adopted a
position through regulation, policy guidance, Commission decision, or
compliance manuals; or (3) the general counsel reasonably believes to
be appropriate for submission for Commission consideration because of
the case's likelihood for public controversy. Consideration of these
factors is dependent upon the interplay of the facts of a particular
case or matter and no one factor tends to drive a decision to send a
case to the Commission.
Question 4. Do you believe the Commission's rejection of the
PricewaterhouseCoopers mandatory retirement case set a precedent the
agency should follow unless it provides a compelling explanation of why
it is abruptly reversing course? Do you think business would benefit
from more transparency and finality about the EEOC's decision-making
activities?
Answer 4. I am not privy to what precedential value the
Commissioners may place on their decisions or votes on particular
litigation matters, nor can I comment on the Commissioners' efforts to
make their decision making more transparent. As general counsel, I
oversee a program that does its work in the sunshine and as such is
subject to scrutiny both by the courts and general public. In my
experience as general counsel, the Commissioners have reviewed each
case I have sent to them based on the individual facts of that
particular case and the law, as set out by the courts, governing each
jurisdiction.
Question 5. Is it your goal to change how the accounting profession
does business? Is it your view that by definition, large accounting
firms cannot be partnerships? How large is too large? Has the EEOC made
any study of the impact that changing the way the accounting profession
does business would have on the existing regulatory scheme? Don't all
of these questions raise very serious policy questions that should be
evaluated before action is taken that may have a profound effect on
interstate commerce and the current regulatory scheme?
Answer 5. My goal is to enforce the law as set forth by Congress
and the courts and informed by Commission guidance, with respect to all
the laws EEOC enforces. I do not have a specific or personal goal to
change how the accounting profession does business. Both the Federal
courts and the Commission have held that in some instances, individuals
who have the job title of ``partner'' may nonetheless qualify as
covered employees under the EEO laws, including the Age Discrimination
in Employment Act (ADEA or Act).\2\ The Commission-approved policy
guidance on this question states that, whether an individual with the
title of ``partner'' actually functions as a partner-owner depends on
whether he acts independently and participates in managing the
organization, or whether he is subject to the organization's control
and therefore is an employee.\3\ The Supreme Court specifically
approved of the Commission's emphasis on ``the common-law touchstone of
control'' when determining partner-employee coverage under the EEO laws
in Clackamas Gastroenterology Associates, P.C. v. Wells.\4\ Enforcing
the ADEA would not mean that large accounting firms cannot be
partnerships. The ADEA language would apply to employees and means that
individuals with the title of partner who in fact do have sufficient
control over the business will not be treated as employees for purposes
of the Act.
---------------------------------------------------------------------------
\2\ 29 U.S.C. 621, et seq.
\3\ U.S. Equal Emp't Opportunity Comm'n, Compliance Manual Section
2: Threshold Issues, III.A.1.d. (May 12, 2000), http://www.eeoc.gov/
policy/docs/threshold.html#2-III-A-1-d.
\4\ 538 U.S. 440 (2003).
Question 6. The mandatory retirement age included in the voluntary
partnership agreements entered into by owners of these larger
accounting firms actually creates room for growth for employees moving
up the corporate ladder. Today, this often includes giving
opportunities to minorities and women in the workforce to gain an
ownership stake in the companies that they work for. Why have you
continued to challenge the mandatory retirement age clause of these
firms when they in fact create advancement opportunities for so many
individuals of whom the EEOC is meant to protect?
Answer 6. Please see the answer to question 5 above. There is
currently no litigation addressing the issue of mandatory retirement
age in partnership type entities, nor has any such litigation been
filed while I have been general counsel.
Question 7. Do you agree that it is the role of the Commissioners
and not you to make policy?
Answer 7. Yes.
Question 8. As the chief lawyer of the EEOC, who is your client? Is
it the 5 commissioners as an entity?
Answer 8. As the chief lawyer for the EEOC, my client in EEO
enforcement litigation is the public interest. Once a case is filed,
the general counsel has independent litigation authority. For defensive
internal litigation, my client is the EEOC as an employer.
Senator Paul
Question 1. Under your directive as EEOC general counsel, what
quantifiable resources (i.e. time, expenses, employees) have been
dedicated to so-called systemic cases investigated by the Commission
where no complaint was filed by an actual employee, former employee, or
job applicant as opposed to the resources dedicated to complaints filed
by an aggrieved party unaffiliated with the EEOC or State agency?
Answer 1. The general counsel does not conduct administrative
investigations and does not have statutory authority over those
investigations. Rather, the Commission has designated authority to the
EEOC's District and Field Directors and the Director of the Office of
Field Programs to conduct administrative investigations and
conciliations.
Question 2. What percentage of litigated cases under your
leadership have been so-called systemic cases where no complaint was
filed by an actual aggrieved party? What is the average turnaround time
for these cases compared to those where complaint was filed by an
aggrieved party unaffiliated with the EEOC or State agency?
Answer 2. Of the 106, systemic cases filed during my tenure, 12 or
11.3 percent did not start with an individual charging party. Four
cases were based on Commissioner's charges, seven cases were based on
ADEA-authorized directed investigations, and one case was based on a
third-party charge. As a general matter, investigations opened based
Commissioner's charges, directed investigation, and third-party charges
will virtually always be based on information from or about an
aggrieved party. Most of the cases involved hiring discrimination or
age discriminatory retirement plans. We do not maintain information
about the length of the case based on the source of the initial charge.
Six of the cases were settled immediately without discovery. The
remaining cases are ongoing.
Question 3. Under your leadership, the EEOC has pursued
unmeritorious cases. One judge even went as far to say that the
Commission utilized a ``sue first, ask questions later'' litigation
strategy. What measures are in place to ensure that the cases pursued
by the Commission have merit? Since your confirmation on December 1,
2010, what has been the total dollar amount that the EEOC been ordered
to pay employers because the Commission pursued litigation without
merit?
Answer 3. We thoroughly review the merit of each case by looking at
the facts, law of the circuit and credibility of the witnesses before
suit is filed. While fees may have been ordered in some cases during my
tenure as general counsel based on the court's belief that the suit did
not have merit, the vast majority of such fees were awarded in cases
that were filed under the authority of prior general counsels and there
is only one case that was filed under my authority where such fees have
been ordered. Thus, in four cases filed under the authority of prior
general counsels, where fees have been ordered and/or paid during my
tenure, the amount is $1,163,580. Fees ordered in the case filed under
my authority total $98,904, although I note that this case was filed in
September 2010.
Question 4. EEOC has the authority to employ individuals commonly
referred to as ``testers,'' individuals who apply for jobs they do not
plan to accept for the sole purpose of investigating discrimination in
the hiring process--when investigating cases. Under your leadership, in
how many cases has the Commission used testers either through direct
utilization by the Commission or by contracting with third-party
entities to deploy testers to investigate hiring practices?
Answer 4. The general counsel does not conduct administrative
investigations and does not have statutory authority over those
investigations. Rather, the Commission has designated the EEOC's
District and Field Directors and the Director of the Office of Field
Programs to conduct administrative investigations and conciliations.
Under my tenure, no cases have been filed or litigated that involved
the use of EEOC testers.
Question 5. Do you believe some jobs can be self-selecting? Do you
believe employers can be held liable for discrimination in the hiring
process simply because certain classes of people may not be attracted
to a particular job or position due to their own preferences?
Answer 5. I do not know what is meant by ``self-selecting.''
However, if the question is whether statistical disparities between
groups in certain positions can be non-discriminatory, the answer is
yes, of course. Depending on the evidence in the particular case,
however, these disparities may also be a reflection of unlawful
discriminatory practices.
[Whereupon, at 4:45 p.m., the hearing was adjourned.]
[all]