    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

         H.R. 548, ``CERTAINTY IN ENFORCEMENT ACT OF 2015'', H.R. 549,
    ``LITIGATION OVERSIGHT ACT OF 2015'', H.R. 550, ``EEOC TRANSPARENCY AND
      ACCOUNTABILITY ACT'', AND H.R. 1189, ``PRESERVING WELLNESS PROGRAMS
                                     ACT''

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

                                    HEARING

                                   before the

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                             COMMITTEE ON EDUCATION
                               AND THE WORKFORCE

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                 HEARING HELD IN WASHINGTON, DC, MARCH 24, 2015

                                   __________

                                Serial No. 114-7

                                   __________

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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

          Available via the World Wide Web: www.gpo.gov/fdsys/browse/
               committee.action?chamber=house&committee=education
                                       or
                Committee address: http://edworkforce.house.gov

                                     ______

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                    COMMITTEE ON EDUCATION AND THE WORKFORCE

                        JOHN KLINE, Minnesota, Chairman
    Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott,
    Virginia Foxx, North Carolina            Virginia
    Duncan Hunter, California              Ranking Member
    David P. Roe, Tennessee              Ruben Hinojosa, Texas
    Glenn Thompson, Pennsylvania         Susan A. Davis, California
    Tim Walberg, Michigan                Raul M. Grijalva, Arizona
    Matt Salmon, Arizona                 Joe Courtney, Connecticut
    Brett Guthrie, Kentucky              Marcia L. Fudge, Ohio
    Todd Rokita, Indiana                 Jared Polis, Colorado
    Lou Barletta, Pennsylvania           Gregorio Kilili Camacho Sablan,
    Joseph J. Heck, Nevada                 Northern Mariana Islands
    Luke Messer, Indiana                 Frederica S. Wilson, Florida
    Bradley Byrne, Alabama               Suzanne Bonamici, Oregon
    David Brat, Virginia                 Mark Pocan, Wisconsin
    Buddy Carter, Georgia                Mark Takano, California
    Michael D. Bishop, Michigan          Hakeem S. Jeffries, New York
    Glenn Grothman, Wisconsin            Katherine M. Clark, Massachusetts
    Steve Russell, Oklahoma              Alma S. Adams, North Carolina
    Carlos Curbelo, Florida              Mark DeSaulnier, California
    Elise Stefanik, New York
    Rick Allen, Georgia
                        Juliane Sullivan, Staff Director
                     Denise Forte, Minority Staff Director
                                     ------

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                        TIM WALBERG, Michigan, Chairman
    Duncan Hunter, California            Frederica S. Wilson, Florida,
    Glenn Thompson, Pennsylvania           Ranking Member
    Todd Rokita, Indiana                 Mark Pocan, Wisconsin
    Dave Brat, Virginia                  Katherine M. Clark, Massachusetts
    Michael D. Bishop, Michigan          Alma S. Adams, North Carolina
    Steve Russell, Oklahoma              Mark DeSaulnier, California
    Elise Stefanik, New York             Marcia L. Fudge, Ohio

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on March 24, 2015...................................     1
    Statement of Members:
        Walberg, Hon. Tim, Chairman, Subcommittee on Workforce
          Protections................................................     1
            Prepared statement of....................................     4
        Wilson, Hon. Frederica S., Ranking Member, Subcommittee on
          Workforce Protections......................................     6
            Prepared statement of....................................     8
    Statement of Witnesses:
        Heriot, Ms. Gail, Professor of Law, University of San Diego
          School of Law, San Diego, CA...............................    68
            Prepared statement of....................................    70
        House, Ms. Tanya C., Director of Public Policy, Lawyers'
          Committee For Civil Rights Under Law, Washington, D.C......    49
            Prepared statement of....................................    51
        Kehoe, Mr. Paul H., Senior Counsel, Seyfarth Shaw LLP,
          Washington, DC.............................................    11
            Prepared statement of....................................    13
        Simon, Ms. Tamara M., Managing Director, Knowledge Resource
          Center and Career Practice, Buck Consultants, Washington,
          D.C........................................................    29
            Prepared statement of....................................    31
    Additional Submissions:
        Chairman Kline:
            Letter dated March 6, 2015, from American Benefits
              Council................................................   140
            Letter dated March 13, 2015, from ERIC the ERISA Industry
              Com- mittee............................................   143
            Letter dated March 16, 2015, from National Association of
              Health Underwriters (NAHU).............................   144
            Letter dated March 17, 2015, from Yager, Mr. Daniel V.,
              President and General Counsel..........................   145
            Letter dated March 20, 2015, from National Business Group
              on Health..............................................   147
            Letter dated March 23, 2015, from American College of
              Occupational and Environmental Medicine................   150
        Roe, Hon. David P., a Representative in Congress from the
            state of Tennessee:
            Letter dated March 13, 2015, from ERIC the ERISA Industry
              Com- mittee............................................   153
        Scott, Hon. Robert C. ``Bobby'', Ranking Member, Committee on
            Education and the Workforce:
            Title 7 U.S.--42 USC 2000e-12............................    91
        Chairman Walberg:
            Letter dated March 13, 2015, from ERIC the ERISA Industry
              Com- mittee............................................   104
            Letter dated March 22, 2015, from Knowledge Universe
              United States..........................................   105
            Letter dated March 23, 2015, from Associated Builders and
              Contrac- tors, Inc. (ABC)..............................   107
            Letter dated March 23, 2015, from Early Care and
              Education Consor- tium.................................   109
            Letter dated March 23, 2015, from International Public
              Management Association for Human Resources (IPMA-HR)...   110
            Letter dated March 24, 2015, from undersigned
              organizations..........................................   111
            Letter dated March 26, 2015, from WorldatWork, The Total
              Re- wards Association..................................   116
            Letter dated April 6, 2015, from Seyfarth Shaw...........   117
            Letter dated April 7, 2015, from AARP....................   120
            Letter dated April 7, 2015, from Consumer Data Industry
              Association (CDIA).....................................   124
            Prepared statement of from Consumer Data Industry
              Association (CDIA).....................................   126
            Letter dated March 24, 2015, from undersigned
              organizations..........................................   114
        Ms. Wilson:
            Letter dated April 13, 2015, from U.S. Equal Employment
              Opportunity Commission.................................   162
            Letter dated March 20, 2015, from undersigned
              organizations..........................................   155
            Letter dated March 30, 2015, from National Council on
              Disability.............................................   158

     H.R. 548, CERTAINTY IN ENFORCEMENT ACT OF 2015; H.R. 549, LITIGATION
     OVERSIGHT ACT OF 2015; H.R. 550, EEOC TRANSPARENCY AND ACCOUNTABILITY
         ACT; AND H.R. 1189, PRESERVING EMPLOYEE WELLNESS PROGRAMS ACT

                                  ----------

                            Tuesday, March 24, 2015

                         U.S. House of Representatives

                     Subcommittee on Workforce Protections

                    Committee on Education and the Workforce

                                Washington, D.C.

                                  ----------

        The subcommittee met, pursuant to call, at 10:02 a.m., in
    Room 2175, Rayburn House Office Building, Hon. Tim Walberg
    (Chairman of the subcommittee) presiding.
        Present: Representatives Walberg, Brat, Stefanik, Wilson,
    Pocan, Adams, and DeSaulnier.
        Also present: Representatives Kline and Scott.
        Staff present: Ed Gilroy, Director of Workforce Policy;
    Christie Herman, Professional Staff Member; Nancy Locke, Chief
    Clerk; John Martin, Professional Staff Member; Zachary McHenry,
    Legislative Assistant; Daniel Murner, Deputy Press Secretary;
    Michelle Neblett, Professional Staff Member; Brian Newell,
    Communications Director; Krisann Pearce, General Counsel; Molly
    McLaughlin Salmi, Deputy Director of Workforce Policy; Alissa
    Strawcutter, Deputy Clerk; Alexa Turner, Legislative Assistant;
    Tylease Alli, Minority Clerk/Intern and Fellow Coordinator;
    Austin Barbera, Minority Staff Assistant; Denise Forte,
    Minority Staff Director; Melissa Greenberg, Minority Labor
    Policy Associate; Carolyn Hughes, Minority Senior Labor Policy
    Advisor; Eunice Ikene, Minority Labor Policy Associate; Kendra
    Kosko Isaacson, Minority Labor Detailee; Brian Kennedy,
    Minority General Counsel; Richard Miller, Minority Senior Labor
    Policy Advisor; Amy Peake, Minority Labor Policy Advisor;
    Veronique Pluviose, Minority Civil Rights Counsel; Theresa
    Tilling-Thompson, Minority Special Projects Assistant.
        Chairman Walberg. A quorum being present, the subcommittee
    will come to order.
        Good morning. Today the subcommittee will examine a number
    of legislative proposals intended to provide greater
    transparency and accountability to the Equal Employment
    Opportunity Commission.
        I would like to thank our witnesses for joining us. We have
    a distinguished panel to help us look at a number of complex
    and important issues.
        All workers deserve strong protections against employment
    discrimination. Toward that end, there continues to be support
    for federal laws such as the Americans with Disabilities Act,
    the Civil Liberties--or Civil Rights Act, and the Age
    Discrimination in Employment Act, and others.
        There is no doubt that every member of the Committee
    expects the fair and vigorous enforcement of these laws in our
    nation's workplaces, and that is precisely why we are here
    today.
        The Equal Employment Opportunity Commission plays a vital
    role ensuring America's workers are free to pursue employment
    without fear of discrimination based on their race, their
    gender, their disability, or religion. We need this agency to
    do its job effectively so that every American has a shot to
    succeed based on merit and hard work.
        Unfortunately, the enforcement and regulatory approach
    adopted by EEOC in recent years raises serious doubts about
    whether our nation's best interests are being served.
        For example, the Commission has implemented controversial
    guidance on the use of criminal background checks that will
    make it more difficult for employers to protect their employees
    and customers. At a hearing held last Congress, the
    subcommittee received testimony from Ms. Lucia Bone, whose
    sister, Sue Weaver, was murdered by a man who months earlier
    had cleaned the air ducts in her home. A simple criminal
    background check might have saved this woman's innocent life.
        State and local policies requiring criminal background
    checks are intended to protect Americans who come in contact
    with workers in vulnerable situations, such as at home and in
    the classroom. As a result of EEOC's misguided policy, more
    Americans will be put in harm's way, including women and
    children.
        The EEOC should scrap this misguided policy completely. But
    if it won't, then Congress should take steps to rein it in and
    help provide families greater peace of mind the next time they
    invite a stranger into their home or a child's classroom.
        Furthermore, EEOC has challenged employee wellness
    programs. Employers develop these innovative programs in order
    to improve the health of employees and their families, increase
    productivity, and reduce health costs. Yet litigation pursued
    by the Commission is actually discouraging employers from
    implementing these programs even though Congress, on a
    bipartisan basis, has expressed its clear support for employee
    wellness programs.
        Lastly, EEOC is spending more time and resources pursuing
    systemic or class action investigations, often without any
    allegation of wrongdoing. The Commission has also been
    sanctioned in recent years for pursuing claims that are
    frivolous and without merit.
        This is how one federal court--circuit court described the
    EEOC enforcement action, and I quote: ``EEOC brought this case
    on the basis of a homemade methodology, crafted by 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.''
        Meanwhile, a backlog of discrimination claims filed by
    individual workers continues to plague the Commission. This is
    no way to run an agency with a mission as important as the
    EEOC's, and we must demand better. To help workers succeed in
    the workplace without fear of discrimination, Congress has a
    responsibility to hold the Commission accountable for its
    regulatory and enforcement policies.
        We will examine today a number of legislative proposals to
    help us do just that. Together, these proposals will instill
    greater transparency and accountability in EEOC, and improve
    its enforcement activities, and help more workers and employers
    enjoy the benefits of employee wellness programs.
        I look forward to discussing in greater detail with our
    witnesses the positive reforms in these bills and hope they
    will receive strong, bipartisan support.
        With that, I will now recognize the Ranking Member of the
    subcommittee, Representative Wilson, for her opening remarks.
        [The statement of Chairman Walberg follows:]

      [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Ms. Wilson. Thank you, Mr. Chairman.
        Today we will examine four bills that would impact the
    Equal Employment Opportunity Commission, EEOC, in ways that I
    fear will compromise the enforcement of civil rights laws.
    Since 2014, we will have had three hearings regarding the EEOC;
    yet, we have not once invited the Commissioners themselves to
    testify about the bills that could severely impact their
    enforcement of employment civil rights laws.
        The name of this subcommittee is Workforce Protections, and
    by our name alone it is clear that we should be doing our best
    to protect workers. These four bills appear to be a grab-bag
    for unscrupulous employers seeking to strip the EEOC of the
    tools they need to combat employment discrimination on the
    basis of race, color, religion, national origin, sex,
    pregnancy, age, disability, and genetic information.
        Fifty years ago, after the creation of the enactment of the
    Civil Rights Act of 1965 and the creation of the EEOC, the job
    of the EEOC is far from complete, despite many advances.
        Mr. Chairman, these four bills today ignore the fact that
    race, gender, disability, and age discrimination persist, and
    we should not be hindering the agency's charge with combatting
    unlawful discrimination. In fiscal year 2014, just for example,
    in fiscal year 2014, of the 88,778 discrimination charges filed
    with EEOC, 35 percent were based on race, 29 percent were based
    on sex, 29 percent were based on disability status, and 23.2
    percent were based on age discrimination.
        Mr. Chairman, I am at a loss to understand why we would
    want to tie the hands of the EEOC, an agency that has a backlog
    of 70-plus charges.
        Here is how we would tie their hands. Number one: Stripping
    the general counsel's authority to make a determination about
    what charges the EEOC should pursue to protect American
    workers, given there is a policy in place to ensure novel legal
    questions and controversial matters must already--already be
    submitted to the Commission for approval.
        Number two: Limiting the EEOC's disparate impact
    examination of criminal background checks. Even Clarence
    Thomas, Commission chair in 1987, adopted the agency's
    guidance, which says that the criminal background checks, like
    other hiring requirements that could exclude certain people,
    should only relate to the job.
        Number three: Granting liability exemption to employers who
    violate employee privacy and civil rights under the American
    and Disabilities Act (ADA) and the Genetic Information
    Nondiscrimination Act (GINA).
        And number four: Finally, undermining the successful
    conciliation process by imposing legal hurdles to resolving
    cases and opening the process to extensive litigation based on
    the adequacy of the conciliation process, rather than resolving
    the substance of whether or not there are impermissible
    discrimination.
        EEOC's job should be about getting results, not providing
    full employment for law firms looking for new ways to frustrate
    resolution of a disputed discrimination case.
        Mr. Chairman, I would ask that you call another hearing
    where we can review these four bills with all five of the EEOC
    Commissioners. We need to assess the implications of these
    bills and determine whether there are unintended effects, such
    as piling on delays in resolving cases.
        We need to hear from the Commissioners to determine whether
    these bills will set up roadblocks for fair and timely
    resolution of claims by those who face race, sex, age, or
    disability-based discrimination. We want to determine if these
    bills, as drafted, will spawn unnecessary litigation and create
    more confusion.
        I thank the witnesses for being here today, and I look
    forward to hearing your testimony. Thank you so much for
    coming.
        I yield back to the Chairman.
        [The statement of Ms. Wilson follows:]

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        Chairman Walberg. I thank the gentlelady.
        Pursuant to Committee rule 7(c), all subcommittee members
    will be permitted to submit written statements to be included
    in the permanent hearing record. And without objection, the
    hearing record will remain open for 14 days to allow
    statements, questions for the record, and other extraneous
    material referenced during the hearings to be submitted in the
    official hearing record.
        It is now my pleasure to introduce our distinguished panel
    of witnesses.
        Mr. Paul Kehoe is a senior counsel with Seyfarth Shaw law
    firm here in Washington, D.C. Mr. Kehoe is a member of the
    Seyfarth's labor and employment practice group and a former
    attorney advisor to the Honorable Victoria A. Lipnic, EEOC
    Commissioner. His practice focuses on all aspects of employment
    discrimination law, including the development of strategies to
    prevent and resolve employment discrimination litigation under
    federal and state anti-discrimination statutes.
        Welcome.
        Tamara Simon is a managing director with Buck Consultants
    Knowledge Resource Center here in Washington, D.C. Ms. Simon is
    responsible for Buck's national multi-practice legal analysis
    and publications, government relations, research, surveys,
    training, and knowledge management. She serves as a national
    resource in compliance issues affecting employers' health and
    welfare benefits.
        Welcome.
        Tanya Clay House is the public policy director at the
    Lawyers' Committee for Civil Rights Under Law here in
    Washington, D.C. Ms. House works closely with all Lawyers'
    Committee projects focusing on core issues such as education,
    voting rights, employment discrimination, fair housing,
    affirmative action, criminal justice, immigration, and other
    racial diversity issues.
        Welcome.
        And finally, Gail Heriot is a professor of law at the
    University of San Diego School of Law in San Diego, California.
    Professor Heriot is a member of the U.S. Commission on Civil
    Rights. She teaches and writes in the areas of civil rights,
    employment discrimination, product liability remedies, and
    torts.
        Welcome, as well.
        I will now ask our witness to--witnesses to stand and raise
    your right hand, as is the custom in this Committee.
        [Witnesses sworn.]
        Let the record reflect--you may be seated--the witnesses
    answered in the affirmative.
        Before I recognize each of you to provide your testimony,
    let me briefly explain the lighting system. Just as in the
    traffic lights, red means stop, but you get to that by going
    green for your first four minutes, yellow will be indicative of
    a final minute before the red light comes on. We will ask you
    to finish as quickly your thought after the red light appears.
        I will ask the same of the panel, though I might not be
    quite as stiff as our full Committee Chairman, Mr. Kline. Yet,
    I will do my best to follow suit.
        I will now recognize Mr. Kehoe for your five minutes of
    questioning.

    TESTIMONY OF MR. PAUL KEHOE, SENIOR COUNSEL, SEYFARTH SHAW LLP,
     WASHINGTON, D.C., TESTIFYING ON BEHALF OF THE U.S. CHAMBER OF
                                COMMERCE

        Mr. Kehoe. Chairman Walberg, Chairman Kline, Ranking Member
    Wilson, and members of the subcommittee, thank you for inviting
    me to testify today on behalf of the U.S. Chamber of Commerce.
        The Chamber of Commerce is a longstanding supporter of
    reasonable and necessary steps designed to achieve equal
    employment opportunity. However, the Chamber has serious
    concerns as to how these laws are currently being administered
    and enforced by the EEOC.
        No matter how well-intentioned, any law enforcement
    agency's judgment, including the EEOC, can become clouded by
    hubris and susceptible to overreach. Too often, courts have
    taken exception to the EEOC's shoot-first-aim-later tactics.
        For example, just last Friday, a judge awarded attorney's
    fees to two companies forced to defend themselves against what
    the court called frivolous litigation. Just a month ago, a 4th
    Circuit judge issued a scathing opinion against the EEOC for
    not being vigilant enough to avoid abusing the power that
    Congress bestowed upon it.
        These and other litigation embarrassments can be blamed in
    part on the Commissioners' lack of control over the EEOC
    litigation program. Only Commissioners have the statutory
    authority to initiate litigation. In 1996 the Commissioners
    delegated away much of this authority to the general counsel,
    who then re-delegated away to regional attorneys.
        The Commission partially rescinded this delegation in 2012,
    but problems persist. Far too often, Commissioners learn about
    litigation by an EEOC press release or social media. The
    general counsel or unappointed, unconfirmed regional attorneys
    are making policy through litigation. However, any EEOC general
    counsel is the agency's litigator, not its policymaker.
        For 40 years courts have reviewed the EEOC's statutory
    conciliation efforts. In 2013, a 7th Circuit Court rejected
    this statutory safeguard, finding conciliation not subject to
    judicial review.
        This issue is currently before the Supreme Court in EEOC v.
    Mach Mining, where the EEOC argued that, as a law enforcement
    agency, its actions related to whether it complied with
    statutory mandates are not reviewable. This position is simply
    breathtaking in scope and encourages the EEOC to purposefully
    eschew conciliation in search of the next lawsuit--the opposite
    of congressional intent.
        All of the issues that have plagued the EEOC recently were
    on full display in EEOC v. Honeywell, a case filed by the EEOC
    seeking a preliminary injunction to prohibit Honeywell from
    offering financial incentives pursuant to the wellness program.
    The EEOC received charges on October 16, 2014, determined that
    day that a violation of the ADA and GINA occurred, demanded
    that Honeywell stop using financial incentives, and filed
    litigation 11 days later.
        However, the Affordable Care Act, HIPAA, and joint
    regulations issued by three cabinet-level agencies permit--
    indeed, encourage--financial incentives and wellness programs.
    The EEOC's theory was that the incentives made participation
    non-voluntary under the ADA and GINA even if the incentives
    complied with the Affordable Care Act and its implementing
    regulations.
        One district office believed so and filed suit without
    Commissioner approval, seeing to establish a policy position
    never adopted by the Commissioners. This rogue agency strategy
    will likely have a chilling effect on the development and
    implementation of wellness programs.
        Ultimately, the EEOC's choice to focus on systemic
    litigation with questionable theories has caused it to ignore
    instances of more traditional types of discrimination, leaving
    alleged victims and their employers in limbo, literally for
    years.
        A decade ago, the Commission would file almost 375 lawsuits
    annually. Despite an increased budget in 2010, the EEOC now
    files only 130. One can rightfully ask what the EEOC is doing
    with its sizeable budget, as it is clear that all too often
    they are not investigating promptly, not conciliating in good
    faith, and not litigating very well.
        Justice Brandeis once said that sunlight is the best
    disinfectant. The four bills under consideration today would
    provide that sunlight and are common-sense, narrow solutions to
    these issues.
        H.R. 549 will ensure that policymaking is rightfully
    returned to the commissions--Commissioners in all multi-victim
    litigation that the EEOC pursues. H.R. 550 will clarify the
    EEOC's duty to conciliate and ensure that such efforts are
    reviewable in court. H.R. 1189 will ease the uncertainty
    created by the EEOC's litigation against Honeywell.
        Finally, H.R. 548 provides clarity for employers faced with
    state or local mandates prohibiting the hiring of certain
    convicted felons for certain positions. That is all that it
    does.
        Overall, these bills should enhance the EEOC's
    functionality and accountability, and the chamber supports
    them.
        [The testimony of Mr. Kehoe follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Walberg. Thank you.
        Now recognize Ms. Simon for five minutes of testimony.

      TESTIMONY OF MS. TAMARA SIMON, MANAGING DIRECTOR, KNOWLEDGE
    RESOURCE CENTER, BUCK CONSULTANTS, WASHINGTON, D.C., TESTIFYING
               ON BEHALF OF THE AMERICAN BENEFITS COUNCIL

        Ms. Simon. Good morning, Chairman Walberg, Chairman Kline,
    Ranking Member Wilson, and members of the subcommittee. My name
    is Tami Simon and I am managing director of the Knowledge
    Resource Center and the Career Practice at Buck Consultants and
    Xerox Company. It is my honor to testify today on behalf of the
    American Benefits Council, of which Buck Consultants is a
    member.
        Collectively, the Council's members either sponsor directly
    or provide services to employee benefit plans that cover over
    one million Americans. Many of the council's members are at the
    forefront of developing wellness programs to help employees
    live healthier lives.
        I have three points that I would like to share with you
    today. First, why are wellness programs good for America?
    Second, what are the current challenges that employers are
    facing with their wellness programs today? And third, why is
    legislation necessary?
        First, why are wellness programs good for America? Wellness
    programs help achieve better health outcomes for employees and
    also have the potential to increase employee productivity by
    helping to reduce absenteeism due to sickness and disability,
    improve workforce morale and engagement, and reduce health care
    spending.
        The prospect of a healthier workforce has compelled a
    growing number of companies to develop and implement wellness
    strategies; 65 percent of respondents to Buck's 2014 wellness
    survey indicated that they have a wellness strategy. That is up
    from 49 percent in 2007. Other surveys estimate that more than
    75 percent of U.S. employees now have access to wellness
    programs.
        A critical component of encouraging employers to offer
    meaningful wellness programs is consistent federal policy that
    promotes the health of Americans and is aligned across multiple
    agencies and Congress.
        As such, employers applaud Congress for working on a
    bipartisan basis to craft the wellness provision in the Patient
    Protection and Affordable Care Act that built on the existing
    wellness program framework created by HIPAA. This is a rare
    bipartisan provision in the controversial health care reform
    law and reflects Congress' approval of offering incentives for
    health-contingent wellness programs.
        Now, as you may recall, HIPAA prohibits group health plan
    wellness programs from discriminating against individuals in
    eligibility, benefits, and premiums based on a health factor,
    which includes, among other things, disability. And for many
    such programs, the law imposes financial limits, notice
    obligations, and alternative standards for those unable to meet
    the program standards.
        HIPAA also contains privacy and security rules protecting
    individual health information. Information that is obtained
    through a wellness program is part of the group health plan,
    can't be used without an authorization for any reason other
    than treatment, payment, or health care operations.
        So what is the current challenge? Notwithstanding
    employers' interest in establishing legally compliant wellness
    programs and the bipartisan support of Congress and the
    administration, a great deal of uncertainty exists in current
    EEOC guidance regarding what constitutes a voluntary wellness
    program under the Americans with Disability Act and how the
    Genetic Information Nondiscrimination Act applies to common
    wellness program designs.
        This legal uncertainty has been exacerbated by enforcement
    actions initiated by the EEOC regional offices against some
    employers' HIPAA and PPACA-compliant wellness programs. These
    actions allege that incentives or penalties associated with
    participation in a group health plan's wellness program violate
    the ADA and GINA.
        These actions have had a chilling effect on employer
    wellness programs.
        To put it more plainly, currently employers just don't know
    what to do. On the one hand, they are designing programs that
    comply with HIPAA and PPACA's clear and comprehensive
    nondiscrimination rules, but on the other hand, still face the
    risk of litigation for not complying with EEOC's unclear
    standards. This is very frustrating for employers that care
    about the well-being of their employees and take seriously
    their compliance obligations.
        So what is the solution? Chairman Kline has introduced the
    Preserving Employee Wellness Programs Act of 2015, or H.R.
    1189, which supports the existing HIPAA and PPACA legislative
    framework with regard to wellness programs, striking, we
    believe, the right balance between providing certainty to
    employers and ensuring an appropriate role for the EEOC to
    protect employees from discrimination.
        The council fully supports advancement of H.R. 1189 and
    urges members of the subcommittee and full committee to please
    join Chairman Kline as cosponsors.
        Thank you for the opportunity to testify, and the council
    and I look forward to working with you to restore certainty to
    employers focusing on improving the health of their workforce.
        [The testimony of Ms. Simon follows:]

       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Walberg. Thank you.
        Recognize Ms. House now for your five minutes of testimony.

     TESTIMONY OF MS. TANYA CLAY HOUSE, DIRECTOR OF PUBLIC POLICY,
    LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW, WASHINGTON, D.C.

        Ms. House. Thank you.
        Chairman Walberg, Ranking Member Wilson, and all the
    members of the Workforce Protections Subcommittee, I am Tanya
    Clay House, director of public policy of the Lawyers' Committee
    for Civil Rights Under Law. I thank you for the opportunity to
    provide this testimony today in furtherance of the protection
    of the equal employment and civil rights of all Americans.
        The Lawyers' Committee is a nonpartisan, nonprofit
    organization established in 1963 at the request of President
    John F. Kennedy to involve the private bar in providing legal
    services to address racial discrimination. As policy director
    and as co-chair of the Employment Task Force of the Leadership
    Conference on Civil and Human Rights, I work with the larger
    civil rights community on the numerous employment issues
    generally, as well as the necessary enforcement agencies,
    including the Equal Employment Opportunity Commission as well
    as the Department of Justice.
        In the interest of time, I would like to focus my remarks
    primarily on the underlying theories that support a more robust
    EEOC and oppose the passage of legislation that would undermine
    the civil rights of employees. As this Committee is aware,
    Congress has assigned the EEOC the primary responsibility for
    enforcing, in the private sector, most of the provisions
    prohibiting discrimination in employment of every major civil
    rights law enacted since 1963.
        Yet, H.R. 548, 549, 550, and 1189 all would subtract from
    the scope of the EEOC's enforcement authority in a way that
    would primarily serve to eliminate the effective and timely
    enforcement of civil rights protections for American workers.
    Furthermore, the claim that such bills would actually enable
    the EEOC to more efficiently comply with its mandate begs the
    question of whether supporters of these bills believe the
    mandate of the EEOC is to eliminate the obligations of
    employers to not discriminate or allow for the creation of
    hostile work environments, or instead, to protect the rights of
    employees to not be unfairly discriminated against.
        Unless the EEOC's mandate has changed within the past 24
    hours of me writing this testimony, I would submit that it is
    the latter.
        Employee claims of discrimination are not subsiding. Every
    year during the Obama administration the EEOC has received
    between 90 to 100 charges of--100,000 charges of
    discrimination. Despite a relatively small staff, the
    Commission has been able to conclude 15 or more of the--percent
    of the--more of the cases resolved every year with some form of
    compensation or other benefit to the employee who has been
    charged--who has charged the employer with discrimination.
        A recent example is a case that has been prosecuted by the
    EEOC jointly with the Lawyers' Committee, the state of New
    York, the city of New York, and in this case, the settlement
    would potentially provide an estimated $12 million in
    compensation to 400 workers.
        Critics of the EEOC view the Commission as a government
    agency that needs to be restrained. The Lawyers' Committee and
    the larger civil rights community fervently reject this belief.
    In light of the substantial benefits the Commission obtains for
    employees, it is not reasonable to evaluate the EEOC based upon
    a small number of reports highlighted by those opposed
    generally to the EEOC and the law it enforces.
        To be clear, H.R. 1189, H.R. 548 would both essentially
    declare by fiat that certain civil rights laws are null and
    void in application. Specifically, H.R. 548 would undermine the
    protections that Title 7 provides by codifying the use of
    unjust stereotypes by employers.
        On the other hand H.R. 1189 effectively works to undermine
    critical civil rights protections and permits workers to be
    coerced into disclosing sensitive medical and genetic
    information to their employers, thus enabling employers to
    shift the cost of health insurance away from them and onto the
    employee.
        H.R. 549 would eliminate the ability of the EEOC to more
    efficiently engage in investigations and lawsuits, instead
    instituting unnecessary, duplicative, and untimely--and
    ultimately obstructionist approval process for litigation,
    while H.R. 550 attempts to legislatively require the EEOC to
    engage in a process that is currently under review at the
    Supreme Court of--in the case of Mach Mining.
        Although the claim was made that all these bills would
    create a more efficient EEOC, the idea that enabling the
    blanket disregard of current civil rights laws is incredulous
    at best. Congress should not disregard the very real existence
    of ongoing, unjust discrimination against American workers.
        For instance, current estimates are the 70 million
    Americans have an arrest record for criminal offense. Thus,
    H.R. 548 would automatically exclude all of these Americans--70
    million Americans--from the workforce.
        This is not just anecdotal. In the case where the Lawyers'
    Committee is co-counsel, census records for the 2010 process
    reveal that between 850,000 and 1 million applicants who had
    FBI arrest records were diverted into a separate screening
    process where fewer than 1 percent were hired, while almost 30
    percent of the applicants who remained in the regular pool were
    hired.
        The enforcement of our nation's civil rights laws,
    particularly those in the employment context, is of a paramount
    importance to the Lawyers' Committee. If the goal is to enable
    more effective enforcement on behalf of American workers, we
    suggest the committee provide for proper funding of the EEOC.
        I encourage this Committee to not move forward with
    legislation that would undermine the EEOC. The American workers
    are depending on you to protect the employment rights and
    simply do the right thing.
        Thank you.
        [The testimony of Ms. House follows:]

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        Chairman Walberg. Thank you.
        Now, Professor Heriot, we will recognize you for your five
    minutes of testimony.

     TESTIMONY OF MS. GAIL HERIOT, PROFESSOR OF LAW, UNIVERSITY OF
             SAN DIEGO SCHOOL OF LAW, SAN DIEGO, CALIFORNIA

        Ms. Heriot. Thank you for this opportunity to testify in
    support of the proposed Certainty in Enforcement Act.
        The bill is aimed largely at correcting a narrow problem
    created by the EEOC's April 25, 2012 guidance, a controversial
    document aimed at restricting an employer's ability to take
    into consideration a job applicant's criminal record when
    hiring. The guidance purports to draw its authority from Title
    7, which prohibits employment discrimination based on race,
    color, religion, sex, or national origin.
        Of course, it requires some gymnastics to get from that
    kind of discrimination to discrimination on the basis of
    criminal record. To do so, the EEOC employs disparate impact
    theory.
        Under this controversial theory, which, alas, was approved
    by the Supreme Court back in the 1970s in Griggs v. Duke Power
    Company, intent to discriminate on the basis of race, color, et
    cetera is irrelevant. It is enough the employer's actions have
    an effect on some--have more effect on some protected groups
    than others if they are not justified by business necessity.
        I should add at this juncture that in addition to the
    narrow problem dealt with with the proposed act, there are many
    other things wrong with this guidance. But given the
    difficulties of passing major legislation, this bill must be
    regarded as a good start--one that should enjoy bipartisan
    support.
        So let me get to the narrow point to the bill. The bill
    seeks to resolve a conflict between federal law, or at least
    the EEOC's conception of federal law, and state law. On the one
    hand, the guidance is aimed in very vague terms at limiting an
    employer's discretion to make employment decisions based on the
    employee's criminal record. Unfortunately, after reading it,
    even experienced attorneys won't know how to resolve particular
    cases.
        But on the other hand, state law sometimes requires
    employers to decline to hire employees based on their criminal
    records. So what is the employer to do?
        The guidance forces employers into an impossible bind.
    Employers are told that maybe--but only maybe--federal law
    forbids what state law requires, and that if so, it is their
    duty to obey federal, not state law.
        According to the guidance, it depends on the circumstances
    of each situation since even the EEOC is not foolish enough to
    believe that a convicted pedophile should be hired as a camp
    counselor or that a convicted necrophiliac should be able to
    get a job at the morgue.
        Nobody knows where the EEOC will draw the line. All they
    know is that the agency has been pushing the line very far
    towards not permitting employers to take criminal convictions
    into account.
        The one thing that is clear is that if, in the EEOC's view,
    federal law forbids what state law demands, the employers
    allegiance must be to federal law. Employers are apparently
    expected to make their best guess as to whether federal law
    overrules state law in any particular case. In the end it will
    be utterly unclear to any conscientious employer exactly what,
    if anything, the EEOC is attempting to require it to do.
        Now, it is true that under the supremacy clause federal law
    trumps state law, but the guidance's lack of clarity makes the
    situation extremely unfair to employers. It shouldn't be that
    way. When a law contains catch-22s of this kind, jobs get
    exported overseas.
        Expect two kinds of errors. An employer may wrongly
    conclude that the guidance does not forbid her to follow state
    law, or she may wrongly conclude that it does. In either case,
    she is going to be in hot water with some government agency, be
    it federal or state.
        The proposed Certainty in Enforcement Act throws the
    hapless employer a lifeline. It clarifies federal law in one
    respect: It tells employers that they are free to comply with
    state law without fear of being found in violation of Title 7
    on a disparate impact theory. Again, very, very narrow.
        Since I have a few seconds left on the clock, let me say
    that an even better proposal would be to overrule the EEOC
    entirely and restore employer discretion to take into account
    an employee's criminal record according to her best judgment.
    Simply exempt decisions based on criminal records from
    liability for disparate impact.
        Note that I am not saying that the federal government
    should do nothing to encourage the hiring of ex-offenders. The
    government already does this by providing a tax deduction for
    employers who hire ex-offenders.
        This carrot approach works much better than the stick
    because it allows employers to fit the right ex-offender into
    the right job. Pressuring employees to hire ex-offenders
    against their better judgment will only result in problems.
        [The testimony of Ms. Heriot follows:]

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        Chairman Walberg. Thank you.
        And thank you, each of the panelists, for your testimony. I
    am sure it will elicit some strong questions.
        And for that, I recognize the Chairman of the full
    Committee, Mr. Kline, sponsor of H.R. 1189, for first round of
    questioning.
        Mr. Kline. Thank you, Mr. Chairman, for your courtesy in
    allowing me to ask the first question. Actually won't get you
    anything, but thanks so much, and thanks to the witnesses----
        Chairman Walberg. I didn't expect that.
        Mr. Kline. He tries, though.
        Thanks to the witnesses for being here. We appreciate very
    much your expert testimony.
        Because 1189 is my bill, the Preserving Employee Wellness
    Programs Act, I want to dig into that a little bit.
        And, Ms. Simon, I am going to go to you.
        We have had very expert testimony from all of you, but I
    am--as you say in your testimony, quote: ``It is impossible for
    employers to abide by rules that do not exist.'' EEOC's lack of
    a clear position is what prompted my bill, so the businesses
    would have a clear path forward. So we are trying to get a
    legislative fix.
        But last week the EEOC apparently recognized this problem,
    at least to some degree, and sent a proposed rule to OMB that
    will purportedly address concerns that we have been talking
    about today. In your opinion, what should this regulation
    include to address the issues that we were talking about of
    clarity and flexibility for employers in their employee
    wellness programs?
        Ms. Simon. Thank you, Chairman Kline, for your question.
    Great question.
        And, you know, I look forward to seeing that EEOC guidance
    very much. We have certainly been waiting a long time for it.
    And hopefully it is going to prove to be as responsive and as
    flexible as your bill without placing any new requirements on
    employers.
        In our opinion, the EEOC should deem employer-sponsored
    group health plan wellness programs that offer incentives and
    are currently compliant with HIPAA and PPACA as meeting the
    wellness exception of the ADA and GINA.
        You know, employers are investing significant resources and
    compliance efforts into their wellness programs to ensure that
    all employees can take advantage of them and so that all of
    them are treated fairly. And what they really need is
    comprehensive, workable, and consistent standards to follow,
    and they need those right now.
        Mr. Kline. Thank you. I also am eagerly waiting to see what
    comes out of OMB. I would like to say I am optimistic, but we
    still very well may need H.R. 1189. But we will see.
        So there have been some questions raised about privacy, of
    course, and that people don't want employers to have all of
    their personal information. So let's talk about HIPAA.
        And, Ms. Simon, I am going to stay with you if that is all
    right. Under HIPAA, can an employer see the private health
    information of the employee or their family who participates in
    the wellness program?
        Ms. Simon. Again, thank you. That is a very important
    question and one that certainly employers take very seriously.
        If a program--a wellness program--is part of the group
    health plan then it would be covered by the HIPAA privacy and
    security rules, which I mentioned earlier in my testimony. Now,
    that rule says that the information could not be used without
    an express authorization for anything other than treatment,
    payment, or health care operations, as set forth in that law.
    Thus, nobody outside of that HIPAA firewall would be able to
    discuss that information for purposes other than those that are
    intended within the group health plan.
        The rules are very, very specific and put the onus on the
    covered entity--and in this case it is the group health plan--
    to protect the information as mandated by HIPAA. And the law
    requires extensive policies and procedures to be drafted and
    met, notice to be given to plan participants, risk assessments
    to be completed, and training to be provided to any individuals
    handling the protected health information. Your bill is aimed
    at wellness programs provided under a group health plan, so the
    HIPAA rules do, in fact, provide that protection.
        In most cases, with large employers there is usually a
    wellness vendor that is the go-between the employee and the
    employer, and so it would be considered a HIPAA business
    associate. While that vendor is technically an agent of the
    employer, most contracts specify that the employer will really
    only receive information that is de-identified from that
    vendor.
        And so business associates, because they are held as liable
    and to that same threshold as covered entities under HIPAA, we
    are hoping that then any third party that does have a business
    associate agreement with the group health plan would be held to
    that same level, that same standard, and the information would
    then, of course, be protected.
        Mr. Kline. Thank you.
        I see my time is expired. I yield back.
        Chairman Walberg. Thank the gentleman.
        I now recognize the gentleman from Virginia and the Ranking
    Member of the full Committee, Mr. Scott.
        Mr. Scott. Thank you, thank you, Mr. Chairman.
        Mr. Kehoe, does your testimony include the statement that
    the EEOC does not have the authority to issue regulations under
    Title 7?
        Mr. Kehoe. Yes, it does. The EEOC does not have authority
    to issue substantive regulations under Title 7; procedural
    regulations are okay.
        Mr. Scott. Well, I just want to enter into the record with
    unanimous consent the Title 7 U.S.--42 USC 2000e-12 subsection
    (a), ``The Commission shall have the authority from time to
    time to issue, amend, rescind suitable procedural regulations
    to carry out the provisions of this chapter. Regulations issued
    under this section shall be in conformity with the standards
    and limitations of subsection two.'' I would like unanimous
    consent to have this in the record?
        [The information follows:]

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Chairman Walberg. Hearing no objection, it will be entered.
        Mr. Scott. Thank you.
        Ms. House, can you remind us why the Griggs decision was so
    important?
        Ms. House. With regard to Title 7's application?
        Mr. Scott. Right. If you didn't have the disparate impact--
    if you had a discrete person with ill intent, what would happen
    if you didn't have Griggs?
        Ms. House. Well, if we weren't able to have--without Griggs
    we would not be able to sufficiently provide the necessary
    evidence and showcase the discrimination that has been
    occurring across this country unintentionally, but effectively,
    particularly against communities of color, against those who
    have traditionally been discriminated against, those women as
    well as people with disabilities. That is a critical component
    within civil rights law that I think is effectively utilized
    within civil--you know, across the civil rights community.
        Mr. Scott. Now, if you had a disparate impact but it was
    job-related, would Griggs prohibit the consideration of a job-
    related criteria, although it had a disparate impact?
        Ms. House. No, it would not.
        Mr. Scott. It would not? Does federal law guidance--does
    EEOC guidance require employees--employers to hire those with
    criminal records in violation of state law?
        Ms. House. No, it does not.
        Mr. Scott. How does Ban the Box fit into this discussion?
        Ms. House. Well, Ban the Box is an attempt to eliminate the
    blanket elimination of those that have a criminal history.
    There are those employers that summarily dismiss those with a
    criminal history, even potentially an arrest record, from even
    applying for any type of job within that sector or with that
    employer. And Ban the Box eliminates that exclusion--that
    blanket exclusion--and it is something that I know the Lawyers'
    Committee, the entire civil rights community has been very
    supportive of, and we have been working with other companies
    and other organizations to eliminate that blanket exclusion.
        Mr. Scott. Does the Banning the Box prohibit consideration
    of criminal records?
        Ms. House. No, it does not. In fact, what it does, it
    eliminates a blanket exclusion; it does not prohibit an
    employer from having an individualized assessment of those that
    might have a criminal record.
        In fact, it just allows for there to be an equitable
    consideration of an employee as they are attempting to apply
    for a job and allow them the opportunity to provide the
    necessary review that they deserve, should this--if their
    criminal history does become an issue within their employment.
        Mr. Scott. Now, is the guidance consistent with or in
    violation of the Griggs principle?
        Ms. House. No, it is not. In fact, it specifically creates
    and allows for there to be--an employer to provide a business
    necessity, should they have a particular exclusion of those
    that have certain criminal histories.
        I think that there has been a use of--you know, the
    continued use of hyperbole when we talk about those that have a
    background of sexual assault, and they being allowed to work in
    day care or child care environments. That would not be
    allowable nor acceptable under the current guidance that has
    been issued by the EEOC, and in fact, it is not something that
    would be permissible and that any of the civil rights community
    would allow.
        Mr. Scott. Thank you, Mr. Chairman.
        Chairman Walberg. I thank the gentleman.
        Continuing that bit of questioning, I recognize myself for
    my five minutes of questioning.
        Professor Heriot, I appreciated your testimony and the
    real-life examples that I would never have thought of--of
    hiring a necrophiliac for a job in a morgue. I guess we do have
    to consider what our laws do and what guidelines are in place.
        In your testimony you said EEOC's 2012 enforcement guidance
    on criminal background checks is vague and uncertain as to an
    employer's duty. The employer will have no way of knowing
    whether EEOC will agree with its judgment in using background
    checks.
        You also note that--recent background check cases in which
    EEOC lost and was harshly criticized by the courts. Is the
    EEOC's enforcement guidance going to be of any help to the
    general counsel or regional attorneys pursuing cases brought
    against employers for using background checks?
        Ms. Heriot. Yes, I get your drift. If it is so easy for
    employers to understand when an employer can be legally liable
    for failing to hire an applicant on account of a criminal
    record then why does the EEOC itself get it wrong so often?
        There have actually been a number of cases where the EEOC
    has brought actions and they have been slapped down by the
    courts.
        Chairman Walberg. Any specifics you can give of that for
    example?
        Ms. Heriot. The two cases that come to mind for me, because
    they have both been in the U.S. Court of Appeals, are the
    Freeman case and Peoplemark. In both those cases the EEOC
    brought an action against an employer based on their criminal
    background checks policy, and in both cases both the district
    court and the court of appeals slapped the EEOC down pretty
    hard.
        And if the EEOC itself is having a difficult time figuring
    out what constitutes a good case, then how are employers
    supposed to get that right?
        In addition, the EEOC has been conducting investigations
    against companies that you would think would have a pretty
    strong case, like G4S, which testified in front of the U.S.
    Commission on Civil Rights--one of their officers did. And they
    are a company that hires security guards. I mean, that is their
    business--they supply security guards to other companies.
        That is a job where you would think that the argument that
    they should be able to consider criminal background was very
    strong. But the EEOC did not agree and has--had conducted a
    very, very long investigation of that company.
        Chairman Walberg. Okay. Thank you.
        Mr. Kehoe, in a number of cases in recent years the EEOC
    has been sanctioned in order to pay defendant's attorney's fees
    and costs pursuing claims that are frivolous, groundless, and
    without merit. In other cases, the agency has lost on summary
    judgment, has been severely criticized by the courts.
        From your position, having consulted with an EEOC
    Commissioner, should Congress be concerned about these outcomes
    or do you consider them to be the normal course of business in
    an agency authorized to enforce federal laws and litigation?
        Mr. Kehoe. Chairman Walberg, thank you for that question.
        Of course Congress should be concerned. Congress has given
    a budget of $360 million to the EEOC to go eradicate
    discrimination, and on many of its large cases the EEOC is, to
    put it in Monopoly words, failing to get past go because they
    can't even establish a prima facie case of discrimination.
        The EEOC has immense subpoena power to get this information
    before filing any sort of litigation, and while no one would
    expect the EEOC to bat 1,000 on all of its cases, the troubling
    trend--and, you know, if it were only one or two cases then
    maybe Congress should be less concerned, but there are dozens
    of cases where the EEOC has been sanctioned and had their cases
    thrown out of court----
        Chairman Walberg. Would the Commissioners' involvement in
    overseeing some of these cases and looking into them
    beforehand--before moving forward be helpful for the general
    counsel?
        Mr. Kehoe. Having Commissioner review adds another layer of
    oversight--a layer of oversight to the regional attorneys who
    want to bring the case, a layer of oversight to the general
    counsel who signs all the filings. It absolutely has the
    potential to ensure that better cases are being brought.
        The review period for Commissioners allows Commissioners to
    ask questions. The issue is on many cases that are filed by the
    EEOC, the Commissioners find out by press release or social
    media. They are not even involved.
        And I think the issue of when making policy through
    litigation comes up, at the end of the day the general counsel
    is not the agency's policymaker; he is just the litigator--any
    general counsel.
        Chairman Walberg. Thank you.
        My time is expired.
        I now recognize the ranking member of this subcommittee,
    Ms. Wilson, the gentlelady from Florida.
        Ms. Wilson. Thank you, Mr. Chair.
        And thank you, to the Committee. I enjoyed listening to
    your testimony.
        I have a question first for Ms. Clay House. This year is
    the 50th anniversary of the EEOC opening its doors. Now, these
    are three questions.
        Do you believe that the EEOC's mission is as relevant today
    as it was 50 years ago? What do you believe are the most
    pressing and emerging forms of discrimination that merits the
    EEOC's attention? And could you please share your views on some
    of the challenges that face the EEOC?
        Ms. House. Thank you for those--that three-part question.
        You are right, it is 50 years since the opening of the
    doors of the EEOC. And though we may not face some of the
    blatant discriminatory policies that existed when the EEOC was
    originally founded, we still face enormous discrimination
    within the employment. And if that was not the case, we would
    not have upwards of 90,000 to 100,000 claims that have been--
    that are continually submitted to the EEOC--complaints of
    discrimination.
        I think that some of the most pressing issues that we are
    facing today are with regard to what we have spoken about
    already--the criminal and credit history checks. I think that
    is particularly important because we are right now dealing with
    an economy that has--had been failing but is on the upward
    swing.
        However, as a result of that failure, we have millions of
    people who have had their credit history affected; we have
    those that have criminal background checks; we have one in four
    African-American men that are--have been in prison or are in
    prison at this point in time, and therefore have criminal
    background history.
        And if we are summarily eliminating--prohibiting--all of
    those individuals that have bad credit or a prior conviction
    from the employment sector, we are eliminating millions of
    people from the work--from the economy. And that is not good
    for anyone, and I would hope that that is not something that
    any of these--any of the members of Congress here would
    advocate here today.
        With regard to the challenges, I think that we need to look
    at a number of issues, particularly the hiring practice, as I
    said, of employers right now. We need to consider the pay
    disparities that exist--continue to exist between men and
    women, as well as people with disabilities.
        And I think that we need to consider and look at the
    implicit bias that continues to exist, particularly when you
    are talking about the same and similarly situated resumes that
    are submitted to employers, yet with a different name--one that
    might be more ethnically diverse. And you have instances where
    that resume with a more ethnically diverse name would be
    eliminated or excluded. And that type of implicit bias is
    very--has been prevalent, as we are seeing, not only in the
    employment sector but other sectors, as well.
        Ms. Wilson. Thank you.
        This question is for Ms. Heriot.
        Ms. Heriot, I have a long background in helping African-
    American boys and men achieve their status in life, and there
    is a real problem with the school-to-prison pipeline. So my
    concern has to do that in 100 cities and counties and 14 states
    they have adopted the Ban the Box policies because they realize
    that our criminal justice system is biased and that the people
    of color are disproportionately institutionalized and arrested
    and harassed.
        So I want to ask you, if cities and counties are trying to
    ban the box, why do you think the EEOC is overreaching?
        Ms. Heriot. Well, I think that employers, like cities and
    counties, should have the option to ban the box, and that is
    perfectly acceptable. And many employers would ban the box, as
    well--many private employers.
        I think the federal tax deduction that allows employers to
    make the choice to hire someone who they know is an ex-offender
    is an excellent program. But the notion that the private
    employers should be coerced in this way I think is a big
    mistake.
        There are many jobs for which it makes perfect sense for an
    employer to decide this is not, you know, a situation where I
    want to take a chance on an ex-offender. And nobody is in a
    better position to make that decision than the employer itself.
        If the EEOC is in a position to second guess them, then
    what is going to happen is that employers will bend over
    backwards to avoid the possibility that they will be brought
    into an EEOC lawsuit. And when that happens, you know,
    tragedies are going to ensue.
        It is not always appropriate to hire an ex-offender in a
    job. Jobs that involve visits to private citizens' homes; jobs
    involving, say, nursing homes; schools--that is not a good
    place to put an ex-offender in every case.
        There are exceptions. But the best person to make the
    judgment about when that exception has come up is not the EEOC,
    but rather, the employer, because the employer knows the job
    and the employer often knows something about the ex-offender
    that the EEOC does not know. It is not always possible to
    govern these things inside the beltway, as it were.
        Chairman Walberg. Thank you.
        The gentlelady's time has expired.
        I now recognize the gentleman from Virginia, Mr. Brat.
        Mr. Brat. Thank you, to all that are with us today, for
    your testimony.
        I taught economic justice for the last 18 years at
    Randolph-Macon College and so I think it is the intent of
    everyone here, and the--sometimes the partisan hyperbole goes a
    little overboard, but I think everyone here is in favor of
    justice for everybody and equal treatment under the law for
    everybody. And so I applaud all of you for your statements. I
    think it just comes down to kind of common sense and where the
    pendulum is.
        And so I think you have all done an outstanding job today,
    of showing us that it looks like the--previous comments just
    offered up--the EEOC is overreaching in some cases, or the
    employer is the better judge of what should be taking place.
    And at the same time, we don't--our justice system allows for
    individuals under law to contest that.
        And so I don't have much more to add beyond what our
    panelists today have offered up.
        Thank you very much for being with us.
        I yield back, Mr. Chairman--my time back to the Chairman,
    yes.
        Chairman Walberg. Thank you. Thank you for yielding your
    time. It is always good to get time from a professor.
        And I appreciate that because I have a couple more
    questions I would like to try to get in here.
        Mr. Kehoe, the Supreme Court has granted review in Mach
    Mining v. EEOC to decide whether the agency's statutory duty to
    conciliate must be performed in good faith and is subject to
    judicial review. Why is it important, from your perspective and
    your placement with EEOC before this, for courts to be able to
    review EEOC's conciliation efforts?
        Mr. Kehoe. Thank you for that question.
        I think the most important reason for courts to be able to
    review whether the EEOC complies with its statutory mandate is
    because it is a statutory mandate. Title 7 requires the EEOC to
    conciliate because the goal of the employment discrimination
    laws is to reach a settlement prior to actually filing
    litigation.
        For 40 years courts have reviewed whether or not the EEOC
    has complied with its conciliation requirements. Congress, in
    the 1972 amendments to Title 7, considered whether to exempt
    the EEOC's conciliation requirements from judicial review.
        They reviewed a bill; they didn't enact that bill. So it is
    pretty clear that congressional intent requires the EEOC to
    conciliate in good faith, because here is the situation----
        Chairman Walberg. Have they consistently abused that
    process of conciliation?
        Mr. Kehoe. Well, there have been several cases that have
    been thrown out of court for failure to conciliate. The biggest
    one is EEOC v. CRST.
        The court had awarded $4.7 million in damages, and though
    that award has been remanded by the 8th Circuit back to the
    trial court, at the end of the day, in CRST the EEOC spent 10
    years investigating and litigating, brought a huge class case
    for 154 women who were allegedly sexually harassed, and they
    settled the case after just about 10 years for $50,000 after
    153 women who claimed they were sexually harassed were left out
    in the cold because the EEOC didn't follow the rules.
        Chairman Walberg. Let me move on to another case. In the
    U.S. Steel case, EEOC alleged that random drug and alcohol
    testing, as agreed to in the collective bargaining agreement
    entered into by U.S. Steel and the Steelworkers Union, violated
    the Americans with Disabilities Act.
        The policy applied to very dangerous jobs where following
    safety rules were critically important. I worked for U.S. Steel
    on some of those same dangerous jobs myself as a U.S. Steel--
    Steelworkers Union member.
        Predictably, the court held the policy was job-related and
    consistent with business necessity, dismissing the case on
    summary judgment.
        Clearly this was not a good case either. Why would EEOC
    bring such a case, and what does it say about the EEOC and how
    it decides to file lawsuits?
        Mr. Kehoe. Well, I think specifically with U.S. Steel, the
    first point of order would be that was one of those cases where
    a good amount of Commissioners found out about the case via a
    press release. That case was brought essentially--the policy
    that U.S. Steel had implemented essentially said: for
    probationary employees, you can't show up to work drunk at the
    steel mill.
        And the EEOC decided that that was a violation of the ADA
    to do random alcohol testing. Now, it would stand to reason
    that any sort of safety policy that requires people in steel
    mills to show up to work sober would clearly be job-related.
        Chairman Walberg. My time is expired, and I think that
    punctuates it.
        I now recognize the gentleman from Wisconsin, Mr. Pocan.
        Mr. Pocan. Thank you, Mr. Chairman.
        And thank you, to the witnesses.
        I am going to comment, and I got the feeling I am going to
    be doing this every subcommittee. We did a good job of
    lawyering up again; we have got a lot of lawyers on the panel.
    It would be nice maybe to have some of the small business
    owners who are affected.
        We are going to have to change the name of the committee
    pretty soon to Education and Workforce via the Judicial System
    at the rate we are going. But we do have a lot of lawyers----
        Chairman Walberg. I would just for the record say the
    business owners are afraid of being sued so they send their
    attorneys.
        Mr. Pocan. Yes, but that is sometimes why we get the
    creative answers that we get, and sometimes I would much rather
    have things--coming from--being a small business owner for 28
    years and not being a lawyer, I guess maybe that is the realm I
    deal with. And since it is going to affect the business, I
    would like to have it from that.
        Let me ask Ms. Heriot just a quick question.
        Do you view the EEOC's arrest and conviction guidance as a
    radical departure in enforcement?
        Ms. Heriot. Back a few years ago--quite a few years ago,
    during--mostly during the Carter administration, this was kind
    of a hot issue, what to do about criminal background checks and
    such. And there were a few cases a little bit before that, as
    well. And it was very hot at the time.
        And then the EEOC started backing away from the policies at
    that point. For example, the policy that someone mentioned
    today about--that involved Clarence Thomas was actually moving
    back--cutting back on the policy, not putting it forward.
        So there is a history. But the April 2012 guidance goes
    much further in several ways. It basically returns that issue--
    to that issue with kind of a vengeance, I would say.
        First of all, it states that even if there is a state or
    local law that requires a background check and requires that
    employers refuse to hire----
        Mr. Pocan. If I can reclaim my time--and this is the
    problem I have. No offense. I know you are a law professor but,
    you know, the answer was--usually falls in the yes or no sort
    of realm----
        Ms. Heriot. But it can't. I mean, the answers don't really
    do that. That is why I came here.
        But at any rate, it does----
        Mr. Pocan. I reclaimed my time. I am sorry, ma'am. Please
    let me finish.
        So what I was trying to ask you, and which you did your
    best to dance around, was that this is the policy in place
    since I believe it is 1987 when then Commissioner--and you
    mentioned Clarence Thomas was there, so----
        Ms. Heriot. No.
        Mr. Pocan. Well, it is. It is exactly what it is.
        So let me do this. Let me ask the question--in Madison,
    Wisconsin we recently had a shooting of a young African-
    American male, 19. Brought up a lot of issues around--we have
    eight times the arrest record of African-American males in
    Madison area, twice the state incarceration of African-American
    males.
        Clearly this affects employment. I recently went to the job
    center in Dayton County and we met with people who are
    chronically employed; 70 to 75 percent of the people who we met
    with had a felony on their record.
        That is the real problem. You can have all the legal talk--
    and by the way, you do get the point for the most creative
    answer of saying jobs will be exported overseas because of
    this. It is going in my little board back in the office,
    because that was beyond amazing on creativity.
        But the bottom line is this affects real people.
        And so let me go to Ms. House specifically. You know, I
    know that you like to talk anecdotally through legal cases when
    we know 93 percent of the cases EEOC brings to--in federal
    court is successful, and 82 percent of those that are systemic
    cases are successful, so this little anecdote--governing by
    anecdote is always very dangerous.
        You brought up a study--a very specific study that said
    850,000 to a million people in this study who had arrest
    record. Of that 70 million people 1 percent got hired, versus
    30 percent in the other pool. Can you just talk a little bit
    more about that, because that is specific and relatable, rather
    than anecdotal? And if you can do it in a succinct, non-
    lawyerish answer, I would really appreciate it.
        Ms. House. Sure. Absolutely.
        That is actually an ongoing case that the Lawyers'
    Committee is in litigation with. And that is a case against the
    U.S. Census Bureau.
        And the reason that we--I mentioned this is because, well,
    as you said, it is not anecdotal. This is reality. We are
    talking about almost a million people that were summarily
    excluded from even being census workers even though they--most
    of them had previously been census workers.
        And so, as you properly indicated, we are talking about,
    you know, one--most of those being excluded and being sent to a
    secondary review, and so therefore, not included in the initial
    application for the Census Bureau. And I think that that is
    extremely important to recognize.
        We are in ongoing litigation so I can't get into more
    specifics regarding the negotiations and what that will entail,
    but I do think it is particularly relevant.
        Mr. Pocan. I can see the yellow light up, Mr. Chairman. I
    will be cognizant of that.
        But, you know, specifically I think in the testimony that
    Ms. Heriot brought up she talked about, you know, the problem
    in Virginia, I think in nursing homes. Yet EEOC didn't file any
    cases against nursing homes for using criminal background
    checks as a basis of employment in Virginia.
        So again, I think what we are finding is often certain
    people are using anecdotes and hyperbole when the reality that
    I am seeing, at least back home in Wisconsin, is that when we
    have got 70 to 75 percent of the people who are chronically
    employed specifically with a felony--and I have done this for
    28 years. I am a small business owner. I know it is----
        Ms. Heriot. Employers can wait until they are sued by the
    EEOC. They have got to----
        Chairman Walberg. The gentleman's time is expired. We will
    move on with the next questioning.
        And I recognize now the gentlelady from North Carolina, Ms.
    Adams.
        Ms. Adams. Thank you, Mr. Chair.
        And thank you all for your testimony.
        Ms. House, during your testimony on the Certainty in
    Enforcement Act you mentioned that 70 million Americans would
    automatically be excluded from the employment sector because of
    criminal background searches, with the greatest impact being
    felt in the African-American community. According to the Crime
    and Delinquency Journal, by age 23, 49 percent of black males
    and 44 percent of Hispanic males have been arrested.
        Can you speak to the effect that this legislation would
    have on already high employment rate for African-Americans and
    Hispanics and how it in turn would affect their respective
    communities?
        Ms. House. Sure. As I indicated previously, it would
    exclude a great proportion and disproportionately impact, as
    you indicated, African-Americans, communities of color,
    particularly Hispanics and other traditionally disenfranchised.
        And I think that what you are talking about is you are
    disenfranchising people throughout their careers. So
    essentially, because of a arrest--it could be an arrest,
    because I will say for the record that many of the databases
    that we are--that employers are reviewing are including
    arrests. So you may not have ultimately been convicted.
        And so therefore, you do have, as a result of these past
    arrests or convictions that could have happened upwards of 10
    to 15 years ago, that people are no longer able to obtain good
    employment, that ultimately affects their entire family--not
    only just them, but throughout their livelihood.
        Ms. Adams. Okay. So what, then, would be the impact on the
    already high employment rate for African-Americans and
    Hispanic----
        Ms. House. It increases. I mean, you--the unemployment rate
    continues to increase. It does not go down despite any
    potential job creation programs that this administration or
    other would employ, because employers are automatically
    excluding those that actually--that have an arrest or a
    conviction record.
        Ms. Adams. Okay. Can you touch for a moment on the
    overcriminalization of people of color in the U.S. and how this
    bill would exacerbate that?
        Ms. House. Well, I think that this bill, as I--it codifies
    the stereotype that those that have a prior arrest record or
    conviction are therefore unemployable and not fit to engage in
    the American dream and provide for their families. It is a
    stereotype; it is a bias.
        And I--I have heard that. We continue to hear that
    throughout many of those who oppose the guidance.
        But I will say that there are a variety of research
    material that indicates that, in fact, those that have prior
    convictions or arrest records over 10 years are no more likely
    to commit another crime than someone of that same age without a
    previous arrest or a conviction record.
        Ms. Adams. Okay. People of color more often than not have
    poor credit because of past forms of discrimination and limit
    education or employment, borrowing, and housing opportunities.
    This is especially alarming in the African-American community,
    where only 25 percent of households have a credit score of
    about 700.
        So how can the use of someone's credit score--credit
    history perpetuate extended unemployment and poverty?
        Ms. House. Sure. Currently, because we are still awaiting
    further guidance on how employers will properly--or how they
    should properly utilize credit history checks, what it does--
    what is happening right now is that, similar to criminal
    background checks, employers are using credit checks without
    properly understanding exactly what is the rationale for
    people's bad history. They are using that as a similar type of
    exclusionary policy to be employed with certain positions.
        So, for example, someone's credit could be detrimentally
    affected by a medical procedure or by--as a result of prior
    inability to pay for hospital bills after they were sick or
    their family member was sick. However, that, because it does
    detrimentally affect their credit, they are therefore excluded
    from potentially additional employment, say, within a bank
    because they have bad credit. And there is no individualized
    assessment given to them with regard to whether or not this is,
    in fact, a related or a proper use of a credit history check.
        Ms. Adams. Thank you.
        Mr. Chairman, I yield back.
        Chairman Walberg. I thank the gentlelady.
        Now I recognize the gentleman from California, Mr.
    DeSaulnier.
        Mr. DeSaulnier. Thank you, Mr. Chairman.
        And like my friend from Wisconsin, I struggle with being a
    small--former small business owner who was going to go to law
    school and chose not to and continued to follow that choice.
    And I appreciate the Chairman's comments as well, as being a
    small employer who worried about lawyering up.
        So my questions are about an issue that I spent a good deal
    of time on in the California legislature and with a constituent
    who was a longtime chairman of Safeway and tried to do employee
    wellness programs, but he did that through the meet and confer
    process for all of his non-management folks. So while I believe
    that there is evidence that obviously wellness programs are
    good for everybody, they help to control costs.
        But I also believe, as a former employer, that sometimes--
    to sort of borrow what Professor Heriot said--that although you
    can't mandate from the beltway, sometimes--oftentimes managing
    people you try to do it collaboratively and--rather than force
    them to do things.
        So the question is to Ms. House to begin with. The Genetic
    Information Nondiscrimination Act made sure that wellness
    programs and that information were given up voluntarily. The
    Preserving Employee Wellness Programs Act that Congress
    currently is considering overrides the GINA provision that
    requires that participation in wellness programs are voluntary.
        So much of this is being defined in the court system right
    now. Is that not true, in----
        Ms. House. I am sorry. I couldn't hear that last----
        Mr. DeSaulnier. In terms of the decision of whether it is
    voluntary to ask for these--this information or not, there are
    court cases, are there not, right now, that may or may not help
    us determine that?
        Ms. House. Yes. There is ongoing litigation. I don't have
    at my disposal all of that case law to present to you. I can
    provide that for you after this hearing is finished.
        But yes, I mean, there continues to be ongoing litigation,
    and I think that we need to--that is something that continually
    needs to be assessed, but the primary focus should be
    voluntary----
        Mr. DeSaulnier. Right.
        Ms. House [continuing]. That this is not something that
    should be forced upon an employee and that ultimately create a
    situation where they are providing unnecessary information that
    would detrimentally affect their ability to obtain proper
    insurance.
        Mr. DeSaulnier. And it is my understanding that the
    research so far, although it is not conclusive, is that these
    decisions are best made between an individual and their doctor.
    Is that not true?
        Ms. House. I would submit that, yes, but I will say that I
    am not as well versed on some of the documentation with regard
    to the wellness programs so I don't want to give you
    misinformation. But yes, I mean, that is reasonable, yes.
        Mr. DeSaulnier. Anyone else care to comment on the panel--
    anyone with more expertise or a different opinion?
        Ms. Simon. Well, actually, if you don't mind, I wouldn't
    mind commenting a little bit on your question about
    voluntariness.
        Mr. DeSaulnier. Yes.
        Ms. Simon. You know, I think that we understand the term
    ``voluntary,'' as used, certainly, in the medical examination
    and disability inquiry provisions. I think that the first
    question to ask is, does the provision, under the ADA and also
    when we are talking about GINA, allow voluntary to first have a
    dollar figure attached to it, which seems to be one of the
    first issues that we hear about in the employer community.
        And the answer to that question was actually answered in
    GINA guidance, where the EEOC shows how an HRA can legally ask
    about health conditions and offer a $150 incentive so long as
    the questions related to family medical history aren't required
    to be answered to receive the financial inducement. The quote
    is: ``We have concluded that covered entities may offer certain
    kinds of financial inducement to encourage participation in
    health services under certain circumstances.''
        So first, with respect to voluntariness, we know that a
    financial incentive would probably be okay. So then the next
    question is, how much?
        Mr. DeSaulnier. Excuse me.
        Ms. Simon. Yes.
        Mr. DeSaulnier. That is under existing law.
        Ms. Simon. Yes. Yes. And I can give you citations for the
    record if you would like.
        So the next question is, how much of a financial incentive
    would be okay for the incentive to be considered voluntary,
    because clearly the $150 figure was just illustrative. And to
    that we can again turn to other agencies and your congressional
    intent and point to the 30 and 50 percent rule under HIPAA.
        Even though the HIPAA rule doesn't actually use the word--
    --
        Mr. DeSaulnier. I am going to jump in here and stop you
    before the red light goes on.
        So my comment would be that all of that is consistent with
    the current law, so----
        Ms. Simon. That is absolutely correct.
        Mr. DeSaulnier [continuing]. I would just conclude is, what
    is the necessity of the new proposal to change that?
        Thank you, Mr. Chairman.
        Chairman Walberg. I thank the gentleman.
        And I thank the witnesses for your attention to our
    questions and responses.
        And before we go to closing comments, for the record I
    would like to submit a number of letters that were supplied to
    us on this issue expressing their concerns, their ideas, from
    business groups, child care groups, et cetera, that would be
    good to have in our record.
        [The information follows:]

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        Chairman Walberg. Hearing no objection, they will be
    submitted.
        I now recognize the gentlelady from Florida, the Ranking
    Member, Ms. Wilson.
        Ms. Wilson. Thank you, Mr. Chair.
        In closing, I would like to thank, once again, all of our
    witnesses for coming.
        And I would like to highlight the majority's attempt to
    roll back a body of laws that have helped protect American
    workers from race, sex, age, and disability-based
    discrimination for over 50 years. Fifty years; that is a long
    time.
        The bills we have discussed today would dramatically limit
    the effectiveness of the EEOC and leave millions of workers
    vulnerable to an employer's abuse of power and discrimination.
        As I mentioned in my opening statement, the name of our
    subcommittee is Workforce Protections. These bills will
    essentially undermine the clear and apparent purpose of our
    subcommittee, which is to provide a safe and amicable working
    environment for American workers and ensure that employers
    engage in fair and equitable hiring practices.
        All of the detailed postings reporting requirements and
    H.R. 550 seem to be designed to keep lawyers with a job, to
    keep fighting lawsuits. Where--tell me where does the average
    worker who really doesn't want to go to court but wants to do
    his or her job without experiencing discrimination go to get
    justice?
        You are creating roadblocks by making the EEOC too busy
    posting things up online, taking notes on cases, getting
    certified to do conciliation. None of these bills specifically
    empower the average worker to be protected from discrimination.
    There are so many roadblocks.
        As the EEOC won 93 percent of cases in federal court and 82
    percent of systemic cases, 84 percent of the businesses' owners
    in 2014 responding they are complying with the EEOC's arrest
    and conviction guidance. And there is a big difference between
    arrest and conviction, and that is why we need a Ban the Box
    policy.
        As members of this subcommittee we should be doing
    everything in our power to support American workers and not be
    in the business of setting up roadblocks to essential
    protections from workplace discrimination.
        Again, Mr. Speaker, I respectfully ask that we call another
    hearing, and this time we want to hear from the EEOC
    Commissioners before moving forward so that we can ensure that
    these bills will not set up unnecessary roadblocks for fair and
    timely resolution of discrimination claims. Remember, we are
    the Subcommittee on Workforce Protections. That is the workers.
        Thank you, and I yield back the rest of my time.
        Chairman Walberg. I thank the gentlelady.
        And I concur. We are the Subcommittee on Workforce
    Protections and this is our job to do, and we will do it with
    all due diligence as necessary, including the hearings we have
    or may have in the future.
        We are responsible to make sure that the workforce is
    protected, but we want to make sure as well as we--when we do
    that that the places that the workforce work are protected, as
    well--that we have that symbiotic relationship that says there
    will be success in the workplace because there are successful,
    safe workers that are doing jobs that they are fit and prepared
    to do. And they are protected against even--should I say
    unthinking action requirements that don't recognize the reality
    of the workplace or the workforce.
        To think that there would be a steelworker that would go to
    work drunk in an unsafe situation, like the number two electric
    furnace that I worked at, and be hurt because U.S. Steel would
    be prohibited from doing its due diligence and making sure the
    person meets the needs and the concerns. The fact that we would
    be putting places--employees in places of work without
    questioning that they physically could not handle because of
    age, because of disability.
        Even if it is in a restaurant that is high intensity and
    serves customers from 7 o'clock on, and it takes someone with
    more stamina than me to be--to work in that restaurant. And
    yet, because of laws that don't deal with flexibility and look
    at the issue not to discriminate against a person or a class of
    persons, but understands the workplace and wants people to
    succeed, yes, for the benefit of the employer, but also the
    benefit of the employee as well.
        To think that there is a Commission that has been appointed
    to deal with these issues and make sure that, indeed, employees
    are cared for and that there are suits that are brought against
    employers for discrimination on basis of law, that there is a
    70,000-person backlog, or case backlog.
        And yet, we can talk about the success rate of systemic
    cases, for instance. Yet there are relatively few. And sadly, a
    good number of those are being thrown out. And equally as sad,
    taxpayers are footing the bill to pay for the costs of these
    frivolous suits.
        We have contradictory laws that our employers and employees
    are expected to carry out and live under--both federal and
    state, and state and federal. And even federal and federal,
    with Obamacare versus the Civil Right Act and the Disabilities
    Act.
        Those are concerns, and that is why we have this hearing.
    And that is why these four bills have been initiated. And that
    is why we are doing due diligence and making sure that these
    bills attack the problem that is there and not something that
    we are just guessing at.
        We want workers to be successful. We want people to be not
    discriminated against. We want employers to be successful and
    not hindered by laws that go far afield from what they want to
    do in carrying on with their employees, as well.
        So I appreciate the panel today.
        I appreciate my subcommittee members and the diligence that
    you put to this hearing, and we look forward to further
    movement down the road.

    The following opinions were submitted for the record by Ms.
    Heriot, and are included in the committee archive for this
    hearing:

    [EEOC v. Freeman, 778 F. Supp. 3d 463 (4th Cir. 2015)]
    [EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013)]
    [EEOC v. Peoplemark, Inc., 732 F. 3d 584 (6th Cir. 2013)]
    [EEOC v. Peoplemark, Inc., No. 1:08-cv-907, 2011 U.S. Dist.
    LEXIS 38696 (W.D. Mich. Mar. 31, 2011)]

        Without further agenda before this subcommittee, I declare
    it adjourned.
        [Additional submissions by Chairman Kline follows:]
        [Whereupon, at 11:28 a.m., the subcommittee was adjourned.]

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        [Additional submission by Mr. Roe follows:]

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        [Additional submission by Ms. Wilson follows:]

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