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

     H.R. 548, ``CERTAINTY IN ENFORCEMENT ACT OF 2015'', H.R. 549, 



                               before the


                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. HOUSE OF REPRESENTATIVES


                             FIRST SESSION




                            Serial No. 114-7


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


      Available via the World Wide Web: www.gpo.gov/fdsys/browse/ 
            Committee address: http://edworkforce.house.gov

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                    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


                    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

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


                        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 
    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 
    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:]
    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 
    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 
    I yield back to the Chairman.
    [The statement of Ms. Wilson follows:]
    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.
    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.
    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.
    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 
    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 


    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 
    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 
    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 
    Overall, these bills should enhance the EEOC's 
functionality and accountability, and the chamber supports 
    [The testimony of Mr. Kehoe follows:]
    Chairman Walberg. Thank you.
    Now recognize Ms. Simon for five minutes of testimony.


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


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


    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 
    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 
    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 
    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:]
    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 
    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 
    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 
    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:]
    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 
    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 
    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 
    Chairman Walberg. Any specifics you can give of that for 
    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 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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. 
    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 
    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 
    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. 
    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 
    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 
    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 
    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:]
    Chairman Walberg. Hearing no objection, they will be 
    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 
    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 
    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 
    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 
    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 

[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.]
    [Additional submission by Mr. Roe follows:]
    [Additional submission by Ms. Wilson follows:]