    [House Hearing, 115 Congress]
    [From the U.S. Government Publishing Office]

                    THE NEED FOR MORE RESPONSIBLE REGULATORY
                      AND ENFORCEMENT POLICIES AT THE EEOC

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

                                    HEARING

                                   BEFORE THE

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                             COMMITTEE ON EDUCATION
                               AND THE WORKFORCE

                         U.S. House of Representatives

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                  HEARING HELD IN WASHINGTON, DC, MAY 23, 2017

                                   __________

                               Serial No. 115-16

                                   __________

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

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                    COMMITTEE ON EDUCATION AND THE WORKFORCE

                   VIRGINIA FOXX, North Carolina, Chairwoman

    Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott,
    Duncan Hunter, California                Virginia
    David P. Roe, Tennessee              Ranking Member
    Glenn ``GT'' Thompson, Pennsylvania  Susan A. Davis, California
    Tim Walberg, Michigan                Raul M. Grijalva, Arizona
    Brett Guthrie, Kentucky              Joe Courtney, Connecticut
    Todd Rokita, Indiana                 Marcia L. Fudge, Ohio
    Lou Barletta, Pennsylvania           Jared Polis, Colorado
    Luke Messer, Indiana                 Gregorio Kilili Camacho Sablan,
    Bradley Byrne, Alabama                 Northern Mariana Islands
    David Brat, Virginia                 Frederica S. Wilson, Florida
    Glenn Grothman, Wisconsin            Suzanne Bonamici, Oregon
    Elise Stefanik, New York             Mark Takano, California
    Rick W. Allen, Georgia               Alma S. Adams, North Carolina
    Jason Lewis, Minnesota               Mark DeSaulnier, California
    Francis Rooney, Florida              Donald Norcross, New Jersey
    Paul Mitchell, Michigan              Lisa Blunt Rochester, Delaware
    Tom Garrett, Jr., Virginia           Raja Krishnamoorthi, Illinois
    Lloyd K. Smucker, Pennsylvania       Carol Shea-Porter, New Hampshire
    A. Drew Ferguson, IV, Georgia        Adriano Espaillat, New York
    Ron Estes, Kansas

                          Brandon Renz, Staff Director
                     Denise Forte, Minority Staff Director
                                     ------

                     SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                        BRADLEY BYRNE, Alabama, Chairman

    Joe Wilson, South Carolina           Mark Takano, California,
    Duncan Hunter, California              Ranking Member
    David Brat, Virginia                 Raul M. Grijalva, Arizona
    Glenn Grothman, Wisconsin            Alma S. Adams, North Carolina
    Elise Stefanik, New York             Mark DeSaulnier, California
    Francis Rooney, Florida              Donald Norcross, New Jersey
    A. Drew Ferguson, IV, Georgia        Raja Krishnamoorthi, Illinois
                                         Carol Shea-Porter, New Hampshire

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on May 23, 2017.....................................     1

    Statement of Members:
        Byrne, Hon. Bradley, Chairman, Subcommittee on Workforce
          Protections................................................     1
            Prepared statement of....................................     3
        Takano, Hon. Mark, Ranking Member, Subcommittee on Workforce
          Protections................................................     4
            Prepared statement of....................................     5

    Statement of Witnesses:
        Cox, Mr. Todd A., Director of Policy, NAACP Legal Defense and
          Educational Fund, Inc......................................    30
            Prepared statement of....................................    32
        Olson, Ms. Camille A., Partner, Seyfarth Shaw LLP,
          Washington, DC.............................................    48
            Prepared statement of....................................    50
        Ponder, Ms. Lisa, Vice President and Global HR Director, MWH
          constructors, Inc., Broomfield, CO.........................     7
            Prepared statement of....................................     9
        Vann, Ms. Rae T., Vice President and General Counsel, Equal
          Employment Advisory Council, Washington, DC................    19
            Prepared statement of....................................    21

    Additional Submissions:
        Chairman Byrne:
            Letter dated May 23, 2017, from the National Association
              of Professional Background Screeners...................    92
        Questions submitted for the record by:
            Ferguson, Hon. A. Drew, IV, a Representative in Congress
              from the State of Georgia..............................    95
            Rooney, Hon. Francis, a Representative in Congress from
              the State of Florida...................................    97
        Responses to questions submitted for the record:
            Ms. Olson................................................    98
            Ms. Ponder...............................................   117

            THE NEED FOR MORE RESPONSIBLE REGULATORY AND ENFORCEMENT
                              POLICIES AT THE EEOC

                                  ----------

                             Tuesday, May 23, 2017

                            House of Representatives

                    Committee on Education and the Workforce

                     Subcommittee on Workforce Protections

                                Washington, D.C.

                                  ----------

        The subcommittee met, pursuant to call, at 10:00 a.m., in
    Room 2175, Rayburn House Office Building. Hon. Bradley Byrne
    [chairman of the subcommittee] presiding.
        Present: Representatives Byrne, Wilson, Hunter, Brat,
    Grothman, Stefanik, Rooney, Ferguson, Takano, Grijalva, Adams,
    DeSaulnier, Norcross, Krishnamoorthi, and Shea-Porter.
        Also Present: Representatives Foxx, and Scott(VA).
        Staff Present: Bethany Aronhalt, Press Secretary; Andrew
    Banducci, Workforce Policy Counsel; Ed Gilroy, Director of
    Workforce Policy; Jessica Goodman, Legislative Assistant;
    Callie Harman, Legislative Assistant; Nancy Locke, Chief Clerk;
    John Martin, Professional Staff Member; Dominique McKay, Deputy
    Press Secretary; James Mullen, Director of Information
    Technology; Krisann Pearce, General Counsel; Lauren Reddington,
    Deputy Press Secretary; Molly McLaughlin Salmi, Deputy Director
    of Workforce Policy; Alissa Strawcutter, Deputy Clerk; Olivia
    Voslow, Staff Assistant; Joseph Wheeler, Professional Staff
    Member; Tylease Alli, Minority Clerk/Intern and Fellow
    Coordinator; Kyle deCant, Labor Policy Counsel; Michael DeMale,
    Labor Detailee; Christine Godinez, Minority Staff Assistant;
    Eunice Ikene, Minority Labor Policy Advisor; Stephanie Lalle,
    Minority Press Assistant; Veronique Pluviose, Minority General
    Counsel; and Elizabeth Watson, Minority Director of Labor
    Policy.
        Chairman Byrne. A quorum being present, the subcommittee
    will come to order. Good morning. I would like to begin by
    welcoming our witnesses. Today's hearing is part of our
    continued oversight of the Equal Employment Opportunity
    Commission, and your testimony will help shape our ongoing
    effort.
        Every American deserves an equal chance to earn success. No
    one should be denied an opportunity because of unlawful
    discrimination. The vast majority of employers treat their
    employees equally and foster an environment free of
    discrimination, but we live in a world where prejudice and
    bigotry still exist, and bad actors must be held accountable.
        That is why there are important protections under federal
    law to prevent workplace discrimination, including the Civil
    Rights Act, the Americans with Disabilities Act, the Equal Pay
    Act, and many others.
        Republicans and Democrats agree our nation's non-
    discrimination laws must be properly enforced, and the EEOC
    should play a critical role in doing just that.
        We would not be doing our job here in Congress if we did
    not hold the EEOC accountable when it has fallen short of its
    important responsibilities. That is why under the Obama
    administration we repeatedly raised concerns over the agency's
    misplaced priorities. The EEOC consistently took its eye off
    the ball and pursued flawed enforcement policies at the expense
    of American workers.
        Take, for example, the agency's backlog of unsettled
    charges. At the end of 2016, the EEOC had more than 73,000
    unresolved cases. Thousands of individuals were still waiting
    for answers on the discrimination charges they filed. This is
    completely unacceptable. These are men and women who turned to
    the federal government for help and got lost in an inefficient
    bureaucracy.
        The EEOC's backlog has not always been this high. In fact,
    the average annual number of unresolved cases was roughly 90
    percent higher under the Obama administration than the Bush
    administration. Ninety percent. And that's not all. The Obama
    EEOC pursued 50 percent fewer cases on behalf of individual
    workers.
        If you get down to what the EEOC is really supposed to do,
    they are supposed to pursue the cases that are filed by
    individual workers, yet they filed 50 percent fewer. With this
    type of track record, one may wonder what exactly the EEOC has
    been doing all these years.
        Part of the answer lies in the agency's misguided focus on
    phishing expeditions. Instead of using its resources to address
    actual claims of alleged wrongdoing, the EEOC has been on a
    nationwide search for ``systemic'' cases of discrimination that
    may or may not exist.
        The result? A long list of frivolous lawsuits and the needs
    of many individual workers unmet. One U.S. District Judge
    described the agency's backward strategy as ``sue first, ask
    questions later.'' And unanimous rebukes by the Supreme Court
    led the Wall Street Journal Editorial Board to name the EEOC
    the ``government's most abusive agency.''
        However, the EEOC has been busy in more ways than just
    phishing expeditions. The agency has also spent its time and
    resources concocting overreaching and convoluted regulatory
    schemes. Most recently, we have seen expansive changes to the
    Employer Information Report, the EEO-1.
        Under Federal law, employers have long been required to
    file employment data categorized by race, gender, ethnicity,
    and job category. This year, employers will fill out a form
    with 128 data points. Beginning next year, employers, including
    many small employers, will face a form with a whopping 3,360
    data cells--128 now, 3,360 next year. That is 26 times the
    amount of information employers currently provide to the
    Federal Government.
        Can you imagine making sense of this massive, confusing
    reporting regime as a small business owner? This new mandate is
    estimated to cost American job creators $1.3 billion and more
    than 8 million hours of paperwork each year, resources that
    could go toward raising wages and hiring new workers.
        And for what? We do not even know how the EEOC intends to
    use all of this new data and whether or not it can help combat
    pay discrimination in the first place. There are also serious
    privacy concerns since the agency has failed to demonstrate how
    it plans to safeguard this enormous amount of new information.
        What the EEOC should be focused on is improving enforcement
    of existing worker protections, and that is exactly why we are
    here today, to hold the agency accountable and demand better.
    With a new Congress and a new administration, we have an
    opportunity to move the EEOC in a new direction, and that is
    precisely what America's workers need.
        Today's discussion is an important step in our efforts to
    encourage the EEOC to adopt more responsible regulatory and
    enforcement policies. It is my hope we can have a thoughtful
    dialogue on how we can ensure the strong worker protections
    that exist in the law are properly enforced.
        I will now turn to the ranking member, Mr. Takano, for his
    opening remarks.
        [The statement of Chairman Byrne follows:]

      Prepared Statement of Hon. Bradley Byrne, Chairman, Subcommittee on
                             Workforce Protections

        Every American deserves an equal chance to earn success. No one
    should be denied an opportunity because of unlawful discrimination. The
    vast majority of employers treat their employees equally and foster an
    environment free of discrimination. But we live in a world where
    prejudice and bigotry still exist, and bad actors must be held
    accountable.
        That is why there are important protections under federal law to
    prevent workplace discrimination, including the Civil Rights Act, the
    Americans with Disabilities Act, and the Equal Pay Act, among others.
    Republicans and Democrats agree our nation's nondiscrimination laws
    must be properly enforced, and the EEOC should play a critical role in
    doing just that.
        We wouldn't be doing our job here in Congress if we didn't hold the
    EEOC accountable when it has fallen short of its important
    responsibilities. That is why, under the Obama administration, we
    repeatedly raised concerns over the agency's misplaced priorities. The
    EEOC consistently took its eye off the ball and pursued flawed
    enforcement policies at the expense of workers.
        Take for example the agency's backlog of unsettled charges. At the
    end of 2016, the EEOC had more than 73,000 unresolved cases. Thousands
    of individuals were still waiting for answers on the discrimination
    charges they filed. This is completely unacceptable. These are men and
    women who turned to the federal government for help and got lost in an
    inefficient bureaucracy.
        The EEOC's backlog hasn't always been this high. In fact, the
    average annual number of unresolved cases was roughly 90 percent higher
    under the Obama administration than the Bush administration. 90
    percent. And that's not all. The Obama EEOC pursued 50 percent fewer
    cases on behalf of individual workers.
        With this type of track record, one may wonder what exactly the
    EEOC has been doing all these years. Part of the answer lies in the
    agency's misguided focus on fishing expeditions. Instead of using its
    resources to address actual claims of alleged wrongdoing, the EEOC has
    been on a nationwide search for ``systemic'' cases of discrimination
    that may or may not exist.
        The result? A long list of frivolous lawsuits and the needs of many
    individual workers unmet. One U.S. District Court judge described the
    agency's backwards strategy as ``sue first, ask questions later.'' And
    unanimous rebukes by the Supreme Court led the Wall Street Journal
    editorial board to name the EEOC the ``government's most abusive
    agency.''
        However, the EEOC has been busy in more ways than fishing
    expeditions. The agency has also spent its time and resources
    concocting overreaching and convoluted regulatory schemes. Most
    recently, we've seen expansive changes to the employer information
    report, the EEO-1.
        Under federal law, employers have long been required to file
    employment data categorized by race, gender, ethnicity, and job
    category. This year, employers will fill out a form with 128 data
    points. But beginning next year, employers--including many small
    employers --will face a form with a whopping 3,360 data cells. That's
    26 times the amount of information employers currently provide to the
    federal government. Can you imagine making sense of this massive,
    confusing reporting regime as a small business owner?
        This new mandate is estimated to cost American job creators $1.3
    billion and more than 8 million hours of paperwork each year--resources
    that could go toward raising wages and hiring new workers. And for
    what? We don't even know how the EEOC intends to use all of this new
    data and whether or not it can help combat pay discrimination in the
    first place. There are also serious privacy concerns since the agency
    has failed to demonstrate how it plans to safeguard this enormous
    amount of new information.
        What the EEOC should be focused on is improving enforcement of
    existing worker protections. And that's exactly why we are here today:
    to hold the agency accountable and demand better. With a new Congress
    and new administration, we have an opportunity to move the EEOC in a
    new direction, and that's precisely what America's workers need.
        Today's discussion is an important step in our efforts to encourage
    the EEOC to adopt more responsible regulatory and enforcement policies.
    It is my hope we can have a thoughtful dialogue on how we can ensure
    the strong worker protections that exist in the law are properly
    enforced.
                                     ______

        Mr. Takano. Thank you, Mr. Chairman. It has been more than
    55 years since the enactment of the Civil Rights Act of 1964,
    and the creation of the EEOC. In that time, the EEOC has been
    on the forefront of fighting discrimination in the workplace
    for all people, and its work is needed now more than ever.
    Race, gender, disability, and age discrimination still persist
    today.
        In fiscal year 2016, the EEOC received a record total of
    91,503 charges--35 percent were based on race, 29 percent were
    based on sex, 29 percent were based on disability status, and
    22.8 percent were based on age discrimination. This evidence
    demonstrates that there is still a need for robust civil rights
    protections in the workplace.
        We are here today to discuss the EEOC's regulatory and
    enforcement policies. If past is prologue, I am sure we will
    hear from witnesses and my colleagues on the other side of the
    aisle claiming that EEOC has overstepped its bounds in pursuing
    an aggressive litigation strategy and in its enforcement
    guidance. I do not believe this is the case.
        With a more diverse workforce, the EEOC's charge is more
    difficult than ever before, and Congress should empower the
    EEOC to ensure that all people feel welcome in their
    workplaces.
        There is really so much more work to do at the EEOC. Take,
    for example, the issue of pay discrimination. We are in the
    21st century. The Equal Pay Act was passed in 1963, and the
    Lilly Ledbetter Act in 2009.
        Why is the wage gap still an issue for millions of working
    women in our nation? On average, women make $0.83 for every
    $1.00 that a typical white man makes, and Census data shows
    that for women of color, the wage gap is even worse. On
    average, black women earn $0.65 up to the $1.00, Hispanic women
    earn $0.59, and some AAPI women earn as little as $0.44.
        That is why I support the recent update to the EEO-1 Pay
    Data Collection Form.
        If we do not have accurate data, we will not be able to
    solve this persistent problem. While the updated EEO-1 form
    will not eliminate pay discrimination on its own, it is an
    important step. The data from this form will help the EEOC
    assess where discrimination is and tell the Commission work to
    put an end to it.
        The work of the EEOC ensures that there is fundamental
    fairness in the workplace. This is what the Commission sought
    to do with its 2012 arrest and conviction guidance. By
    clarifying when and how an employer can use arrest and
    conviction records, the EEOC was simply providing guidance to
    employers to ensure they were being fair in hiring and
    employment decisions.
        This was not a mandate to tell employers they cannot use
    background checks but rather an effort to ensure fairness to
    all workers. In fact, the fundamentals of that enforcement
    guidance came from the pivotal case of Griggs vs. Duke, and
    previous EEOC memos. Over 150 cities and counties in 26 states
    already have adopted what is widely known as ``ban the box
    laws.''
        Mr. Chair, I hope our discussion today can center around
    the continued work the EEOC needs to do to end discrimination
    in the workplace. Thank you, and I yield back.
        [The statement of Mr. Takano follows:]

    Prepared Statement of Hon. Mark Takano, Ranking Member, Subcommittee on
                             Workforce Protections

        Thank you, Mr. Chairman.
        It's been more than fifty-years since the enactment of the Civil
    Rights Act of 1965 and the creation of the EEOC. In that time, the EEOC
    has been on the forefront of fighting discrimination in the workplace
    for all people, and its work is needed now more than ever.
        Race, gender, disability, and age discrimination still persist
    today. In Fiscal Year 2016, the EEOC received a record total of 91,503
    charges: 35% were based on race, 29% were based on sex, 29% were based
    on disability status, and 22.8% were based on age discrimination. This
    evidence demonstrates that there is still a need for robust civil
    rights protections in the workplace.
        We are here today to discuss the EEOC's regulatory and enforcement
    policies. If past is prologue, then I'm sure we will hear from
    witnesses and my colleagues on the other side of the aisle claiming
    that the EEOC has overstepped its bounds in pursuing an ``aggressive
    litigation strategy'' and in its enforcement guidance. I do not believe
    this is the case. With a more diverse workforce the EEOC's charge is
    more difficult than ever before and Congress should empower the EEOC to
    ensure that all people feel welcome in their workplace.
        There is so much more work the EEOC needs to do.
        Take for example the issue of pay discrimination. We are in the
    21st Century. The Equal Pay Act was passed in 1963 and the Lilly
    Ledbetter Act in 2009. Why is the wage gap still an issue for millions
    of working women in our nation?
        On average, working women make 83 cents for every dollar that a
    typical white man makes. And census data shows that for women of color
    the wage gap is even worse: on average black women earn 65 cents to the
    dollar, Hispanic women earn 59 cents, and some AAPI women earn as
    little as 44 cents. That is why I support the recent update to the EEO-
    1 pay data collection form.
        If we don't have accurate data, we won't be able to solve this
    persistent problem. While the updated EE0-1 form won't eliminate pay
    discrimination on its own, it's an important step. The data that this
    form will now collect will help the EEOC asses where discrimination is
    and help the Commission work to put an end to it.
        The work of the EEOC ensures that there is fundamental fairness in
    the workplace.
        This is what the Commission sought to do with its 2012 arrest and
    conviction guidance. By clarifying when and how an employer can use
    arrest and conviction records, the EEOC was simply providing guidance
    to employers to ensure that they were being fair in hiring and
    employment decisions. This was not a mandate to tell employers that
    they can't use criminal background checks, but rather an effort to
    ensure fairness to all workers. In fact, the fundamentals of that
    enforcement guidance came from the pivotal case of Griggs v. Duke and
    previous EEOC memos. And over 150 cities and counties and 26 states
    already have adopted what is widely known as ``ban the box'' laws.
        Mr. Chair, I hope that our discussion today can center around the
    continued work the EEOC needs to do to end discrimination in the
    workplace.
                                     ______

        Chairman Byrne. Thank you, Mr. Takano. Pursuant to
    Committee Rule 7(c), all subcommittee members will be permitted
    to submit written statements to be included in the permanent
    hearing record. Without objection, the hearing record will
    remain open for 14 days to allow statements, questions for the
    record, and other extraneous material referenced during the
    hearing to be submitted in the official hearing record.
        It is now my pleasure to introduce today's witnesses. Ms.
    Lisa Ponder is the Vice President and Global Human Resources
    Director for MWH Constructors, Inc., the construction arm of
    Stantec. She is testifying on behalf of the Society for Human
    Resource Management.
        Ms. Rae Vann serves as the Vice President and General
    Counsel for the Equal Employment Advisory Council.
        Mr. Todd Cox is Director of Policy at the NAACP Legal
    Defense and Educational Fund, Inc.
        Ms. Camille Olson is a partner at Seyfarth Shaw LLP, and is
    testifying on behalf of the U.S. Chamber of Commerce.
        I will now ask our witnesses to raise your right hand.
        [Witnesses sworn.]
        Chairman Byrne. Let the record reflect the witnesses
    responded in the affirmative.
        Before I recognize you to provide your testimony, let me
    just briefly explain our lighting system. You will each have
    five minutes to present your testimony. When you begin, the
    light in front of you will turn green. When one minute is left,
    the light will turn yellow. When your time has expired, the
    light will turn red. At that point, I will ask you to wrap up
    your remarks as best you are able. After you have testified,
    members will each have five minutes to ask questions.
        Now, some of you have practiced law. You have been in the
    courtroom where the judge brings down the hammer at exactly the
    time. I am not that kind of chairman, but we do want to try to
    keep our remarks within the time frame because that will allow
    us to have the maximum time here to do it, so if I start
    pushing you a little bit, it is not to be overly rigorous in
    running the meeting, I am just trying to keep us on track. Is
    that fair enough? Thank you. All right.
        I would like to begin to recognize our witnesses, and we
    will start with you, Ms. Ponder.

        TESTIMONY OF LISA PONDER, VICE PRESIDENT AND GLOBAL HR
    DIRECTOR, MWH CONSTRUCTORS, INC., BROOMFIELD, CO, ON BEHALF OF
               THE SOCIETY FOR HUMAN RESOURCE MANAGEMENT

        Ms. Ponder. Good morning, Chairman Byrne, Ranking Member
    Takano, and members of the committee. It's an honor to be here
    with you to discuss the need for responsible regulations and
    enforcement at the EEOC, and in particular, the EEO-1 Report.
        I serve as Vice President and Global HR Director for MWH
    Constructors, Inc., or MWH, the construction arm of Stantec, a
    global engineering and construction company, and I appear
    before you today on behalf of the Society for Human Resource
    Management or SHRM.
        SHRM believes the EEOC plays a critical role in ensuring
    that employees have equal opportunity to work in environments
    that are free from discrimination. Just as importantly, the
    EEOC educates employers to help prevent illegal discrimination
    and addresses it whenever found. SHRM strongly supports these
    goals.
        Mr. Chairman, regulations need to be developed and
    implemented to meet the policy goals of the underlying
    statutes. As it relates to today's hearing, SHRM is concerned
    that the revised EEO-1 Report will not prove useful in
    achieving the objective of curtailing compensation
    discrimination, while at the same time being administratively
    burdensome and costly.
        Let me illustrate a few of these concerns. The EEOC
    revision to collect compensation data at the level of the EEO-1
    job category is unlikely to uncover discriminatory pay
    practices because the category includes a wide range of jobs
    while not factoring in legitimate non-discriminatory pay rates.
        For example, in 2016, MWH reported 1,100 engineers under
    the professional category, 307 women, 793 men. However, these
    engineers' experience ranged from just out of college to more
    than 20 years. Understandably, we pay our engineers with 20 to
    30 years of experience more than we pay our millennial
    engineers with one to five years of experience.
        Couple this with the reality that women representing the
    Baby Boomer generation in our industry only account for
    approximately 5 percent of our engineers, whereas female
    millennial engineers represent nearly 20 percent of the
    industry.
        Reporting both men and women in one job category will
    produce a result showing that we pay our male professionals
    more than we pay our female professionals.
        The revised report doesn't allow us to report individual
    experience, so the report will appear to have a pay
    differential based on gender rather than experience, a non-
    discriminatory factor.
        Another area of concern of the revised EEO-1 is the
    collection of W-2 gross income. As the EEOC recognizes, W-2
    gross income includes non-discriminatory variables that may
    impact earnings, including shift differentials, bonuses,
    commissions, and overtime compensation.
        While this data may provide the EEOC with a broader view of
    pay practices, collecting this data will not allow the EEOC to
    evaluate comparative compensation data points.
        The above concerns coupled with those outlined in my
    written statement raise serious doubts regarding whether the
    stated purpose of addressing pay differential can be
    accomplished from the revised EEO-1 data collection effort.
        Now, I want to take a few moments to discuss ways to
    improve the investigative process at the EEOC. In areas where
    it's appropriate, I would recommend the Commission rely more on
    mediation and non-binding settlement conferences with the
    investigator as arbiter.
        When given this opportunity, MWH always participates and
    tries to reach a resolution of the complaint in a fair and
    timely manner. Used properly, mediation and settlement
    processes can provide fair, equitable, and timely settlement to
    the employer and the employee, and can save time and resources
    for all involved.
        The investigative process could be improved with better
    focus on what the EEOC can and should be doing with the
    resources it has. Overburdened EEOC staff with a large caseload
    slows the process almost to a halt, with neither the employee
    or the employer community served well.
        The EEOC needs to find a way to better prioritize cases as
    experienced investigators can ask the right questions, quickly
    leading them to make appropriate and educated decisions on the
    merit of the claims right from the start.
        In closing, Mr. Chairman, SHRM will continue to work with
    the EEOC to institute effective non-discriminatory practices
    that address the 21st century workplace. In so doing, SHRM
    encourages the Commission to reevaluate its investigative
    process to help reduce the backlog of outstanding complaints. A
    fair and expeditious process provides finality for both the
    employee and the employer.
        However, for the reasons I've stated, SHRM is concerned
    that the revised EEO-1 Report will not prove useful in
    achieving the stated objective of curtailing unlawful
    compensation discrimination.
        Thank you for this opportunity, and I'm happy to answer
    questions.
        [The statement of Ms. Ponder follows:]

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Byrne. Thank you, Ms. Ponder. Ms. Vann, you are
    recognized for five minutes.

     TESTIMONY OF RAE T. VANN, VICE PRESIDENT AND GENERAL COUNSEL,
          EQUAL EMPLOYMENT ADVISORY COUNCIL, WASHINGTON, D.C.

        Ms. Vann. Chairman Byrne, Ranking Member Takano, and
    members of the subcommittee, thank you for inviting me to
    testify today about the challenges and opportunities facing the
    EEOC in carrying out its important mission of preventing and
    eliminating workplace discrimination.
        My remarks today will focus on three interrelated policy
    areas, and time permitting, on the revised EEO-1 Report.
        The first item pertains to the evolution of the EEOC's
    systemic enforcement strategy and the difficulty it's posed for
    stakeholders.
        For some time now, that strategy has emphasized developing
    facts sufficient to support class-based, attention grabbing
    litigation rather than on investigating and resolving charging
    parties' actual bias claims.
        We have seen that play out in individual charge
    investigations where the investigator spends an inordinate time
    looking for possible indicators of broader discrimination than
    actually alleged in the underlying charge itself, and in a
    number of the cases the EEOC has prosecuted in court.
        We feel this is due in part to a lack of adequate
    supervision. For instance, under the Commission's current
    delegation of litigation authority to the General Counsel, the
    regions decide in most instances without prior approval or
    input from the full Commission which cases should be litigated.
        The lack of headquarters' oversight presents a problem in
    particular for large employers with locations throughout the
    country. They often face different standards from region to
    region, not only as to litigated matters, but also as to charge
    investigations and other pre-suit activities.
        Related to general management oversight is the issue of
    quality assurance. While the EEOC has made a concerted effort
    recently to improve the quality of its investigations and
    conciliations, we are not sure the current quality standards
    have trickled down to the field as quickly or as evenly as
    necessary.
        Respondents and charging parties want to and should have
    confidence that every charge investigation is held to the
    highest quality standards, but we just haven't seen enough
    consistency across the regions to be certain of that.
        Establishing and implementing a meaningful quality control
    system for investigations and conciliations we believe is
    critical to achievement of the agency's statutory mission.
        Also, relevant to effective civil rights enforcement is the
    ability to conduct charge investigations as promptly and as
    efficiently as possible, because months or sometimes years long
    investigations only serve to delay resolution of those bias
    claims, and the EEOC should be encouraged and provided with the
    necessary resources to improve the time it takes to conduct
    charge investigations and conclude its administrative
    proceedings.
        In addition, the EEOC's current quality standards in our
    view are not sufficient to ensure its conciliation obligations
    are being met. As the Supreme Court outlined recently, proper
    conciliation involves providing the employer with all the
    necessary information it needs to understand the basis for the
    EEOC's findings, and to determine its own settlement position.
        Basic information such as what practice has harmed which
    person.
        The EEOC's quality standards should describe what
    meaningful conciliation looks like. It's especially important
    that those standards be reflected in the procedural
    regulations, which currently specify only that the agency
    attempt to achieve a just resolution of all violations found.
        Finally, we believe that the EEOC should seriously consider
    expanding its very successful mediation program to more stages
    of the investigative process including conciliation.
        Once reasonable cause is found, the dynamics of the
    situation change significantly, and an employer that may have
    been disinclined to go to mediation beforehand may now see some
    value in doing so.
        The EEOC also could utilize mediation as a viable
    alternative to litigation in the event the conciliation is
    unsuccessful. At that stage, an outside neutral with no stake
    in the outcome may greatly assist the parties and the agency in
    reaching a mutually acceptable resolution that avoids the costs
    and time involved in Federal court litigation.
        In my written comments, I discuss our concerns with the
    revised EEO-1 Report, which are consistent with Ms. Ponder's
    remarks. I'm happy to discuss those concerns if you wish during
    questions. Thank you again for the opportunity to testify.
        [The statement of Ms. Vann follows:]

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Byrne. Thank you, Ms. Vann. Mr. Cox, you are
    recognized for five minutes.

       TESTIMONY OF TODD A. COX, DIRECTOR OF POLICY, NAACP LEGAL
                   DEFENSE AND EDUCATIONAL FUND, INC.

        Mr. Cox. Thank you. Good morning, Chairman Byrne, Ranking
    Member Takano, and members of the subcommittee. My name is Todd
    Cox, and I am the Director of Policy for the NAACP Legal
    Defense and Educational Fund.
        Thank you for the opportunity to testify at this morning's
    hearing to express our views regarding the regulatory and
    enforcement priorities of the U.S. Equal Employment Opportunity
    Commission.
        The EEOC has throughout its existence played a pivotal role
    in ensuring that all Americans have access to equal
    opportunities in the workplace, and that there are adequate
    protections in place so that unlawful employment discrimination
    is quickly identified and remediated.
        An important part of that role has been the EEOC's
    regulatory and enforcement policies and activities, including
    its systemic litigation, and its work in emerging areas of
    discrimination.
        Despite the tremendous strides we have made as a nation
    towards equal opportunity, the EEOC continues to remain an
    incredibly important and necessary federal agency. There is no
    question that the EEOC has been incredibly successful in
    redressing various forms of employment discrimination.
        The Commission has been and continues to be a driving force
    in dismantling segregated workplaces, removing unnecessary and
    discriminatory employment barriers and obstacles, and ensuring
    the promise of equality at work could be realized for millions
    of Americans.
        Despite the tremendous progress, however, sadly, our work
    on eliminating discrimination in the American workplace is far
    from over. We commend the EEOC's decision to continue to
    prioritize the initiative revitalized under President George W.
    Bush's administration and focusing the Commission's resources
    on redressing systemic discrimination--pattern or practice,
    policy and/or class-wide investigations and litigation where
    the alleged discrimination has a widespread impact on industry,
    employers, or geographic areas.
        While individual claims have a place on the Commission's
    docket, it is imperative that the EEOC continue to maximize its
    impact by prioritizing systematic enforcement and litigation.
    An emphasis on systemic enforcement makes perfect sense
    strategically, because it allows the EEOC to address and remedy
    workplace discrimination on a large scale.
        We also applaud the EEOC's continued reliance on disparate
    impact liability as a tool through which to prove unlawful
    discrimination. Disparate impact is more important than ever,
    especially given that subtle and sophisticated types of
    discrimination are more commonplace today than instances of
    overt racial animus.
        The EEOC's work concerning the misuse of criminal records
    in employment highlights the ways in which the Commission is
    working to address and remedy discriminatory barriers that have
    disparate impacts on protected groups.
        In recent decades, the number of Americans who have some
    criminal history has increased significantly. The impact of the
    criminal justice system particularly resonates in communities
    of color and has important civil rights and racial justice
    implications.
        In response to this growing trend, the EEOC in a bipartisan
    manner issued enforcement guidance concerning the use of
    criminal records in employment. I would like to emphasize a few
    points about the guidance.
        First, neither Title VII nor the guidance itself prohibits
    employers from considering criminal history when they make
    employment decisions. Second, the guidance describes how
    employers considering criminal history in a targeted fact-based
    way can avoid Title VII liability consistent with existing law.
        Lastly, it reiterates that the fact of an arrest standing
    alone does not establish that criminal conduct occurred and
    that an employer should not rely on an arrest record alone to
    make employment decisions.
        What is important is that people have an opportunity to
    apply and be considered for jobs for which they are qualified
    and for which their criminal records are not relevant or
    predictive. Permanently excluding people from the workforce
    because of contact with the criminal justice system is
    inconsistent with Title VII.
        The EEOC's work on the guidance is consistent with the
    growing national and bipartisan consensus that we need to
    rethink our criminal reentry systems to ensure that millions of
    Americans who have a criminal record are afforded a second
    chance, and ultimately, that our communities are safer and more
    economically stable.
        The 53rd anniversary of the Civil Rights Act of 1964
    provides a timely opportunity to pause and consider the
    regulatory and enforcement priorities of the EEOC. Undoubtedly,
    the EEOC should be applauded for the tremendous role it has
    played in helping to ensure that American workers are not being
    denied equal opportunity.
        The Commission must continue its work of developing new and
    innovative ways to combat unlawful discrimination. As Naomi
    Earp, who served as Chair of the EEOC under President George W.
    Bush once remarked, ``New times demand new strategies to stay
    ahead of the curve. These old evils are still around in new
    forms, and the Commission intends to act vigorously to
    eradicate them.''
        Accordingly, we should take this opportunity to ensure that
    the EEOC has the resources it needs to continue its critically
    important work.
        Thank you for the opportunity to testify. I look forward to
    your questions.
        [The statement of Mr. Cox follows:]

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Byrne. Thank you, Mr. Cox. Ms. Olson, you are
    recognized for five minutes.

      TESTIMONY OF CAMILLE A. OLSON, PARTNER, SEYFARTH SHAW LLP,
      WASHINGTON, D.C., ON BEHALF OF THE U.S. CHAMBER OF COMMERCE

        Ms. Olson. Good morning. Thank you, Chairman Byrne, Ranking
    Member Takano, and other members of the subcommittee. My name
    is Camille Olson, and I'm testifying on behalf of the U.S.
    Chamber of Commerce, the world's largest business federation.
        I chair the Chamber's Equal Employment Opportunity Policy
    Subcommittee, and I'm also a partner with the law firm of
    Seyfarth Shaw, where I'm an active employment litigator.
        The Chamber is a long-standing supporter of reasonable and
    necessary steps to achieve the goal of equal employment
    opportunity for all. Over the years, the EEOC has taken
    positive steps toward that mission. However, the EEOC's track
    record since 2013 raises concerns that any positive
    developments have stalled.
        I will address three issues--the EEOC's investigation and
    direct party litigation amicus failures, improper guidance
    documents issued by the EEOC, and the misguided focus of the
    revised EEO-1 Report.
        First, the EEOC has not fulfilled its mandate to
    investigate charges with efficiency and timeliness. In 2009,
    the Senate HELP Committee characterized the EEOC's backlog as
    unacceptable. Yet, in 2016, the Inspector General again
    stressed the need to improve charge processing, noting there
    had been no fundamental improvements in this area.
        While there has been an overall decline in the backlog over
    the last eight years, since 2013, the EEOC's charge backlog has
    actually increased 3.9 percent.
        In addition, the EEOC's continuing emphasis on systemic
    cases has led to a drastic decline in both the volume as well
    as the quality of its litigation. The EEOC's focus on
    increasing the percentage of systemic cases incentivized the
    agency to take aggressive approaches when evaluating charges at
    the expense of targeted investigations and prompt resolutions
    of individual charges of discrimination.
        Individuals who file charges do not want press releases.
    They want a fair, timely examination of their complaint, and if
    appropriate, a remedy. Indeed, we have seen a significant
    decline in the number of merit suits filed. If you look between
    2001 and 2011, the EEOC filed between 250 and 388 merit suits
    each and every year. In striking contrast, the EEOC's General
    Counsel's Office filed only 86 lawsuits in 2016.
        Against this backdrop, lawsuits brought by the EEOC have
    been judged to be frivolous, unreasonable, and without
    foundation, resulting in significant attorney fees awarded
    against the EEOC.
        The Sixth Circuit criticized the EEOC in one case for
    ``playing a hand it just could not win.'' Sanctions against the
    EEOC have focused on its failure to conduct proper discovery
    and for bringing meritless cases.
        Similarly, the EEOC's amicus program has resulted in
    numerous defeats in recent years. This is a waste of resources
    and causes the agency to also lose credibility with the
    judiciary.
        Second, the EEOC's track record issuing guidance
    demonstrates the agency's improper attempts to establish new
    legal standards through these guidance enforcement documents.
    In one case, the Supreme Court characterized the EEOC's
    underlying enforcement guidance as ``a proposed standard of
    remarkable ambiguity.''
        Third, in 2016, the EEOC significantly expanded the EEO-1
    Form to collect for the very first time W-2 and hours worked
    information from employers across the country. Surprisingly,
    submitted under the Paperwork Reduction Act.
        While the Chamber strongly supports equal pay for equal
    work, the revised EEO-1 Form will not promote equal pay because
    the data being collected in that form at enormous cost is
    useless for that purpose.
        As an initial matter, the new EEO-1 Form is a massive
    expansion of the current form, which has been in use for
    decades. The form has been expanded, as noted earlier today,
    from less than 200 data points to over 3,000, and will force
    hundreds of millions of dollars in recordkeeping compliance
    costs alone upon employers.
        Also, the EEOC itself has admitted the revised EEO-1 will
    have no probative value in identifying discriminatory pay
    practices. That is because a fundamental principle under the
    Equal Pay Act as well as Title VII is that pay comparisons can
    only be made between employees who perform equal work or who
    are similarly situated to each other.
        The EEO-1 Report does the opposite and combines vastly
    dissimilar jobs. In addition, the data ignores legitimate
    explanations of pay differences, such as experience, employee
    work performance, and education levels.
        Finally, in addition to the significant increased burden of
    producing the data is the EEOC's inability to show how this
    sensitive data will be effectively protected from improper use
    or hacking by others, all of which means the revised EEO-1 Form
    is a substantial new recordkeeping obligation that will in fact
    do nothing to ensure equal pay for substantially equal work
    while at the same time siphoning employer resources from
    actively performing meaningful compensation audits, and--
        Chairman Byrne. Ms. Olson, I am going to have to ask you to
    wrap up as quickly as you can.
        Ms. Olson. And then acting upon those results.
        I have submitted with the written testimony analytical data
    and charts providing additional detail on the EEOC's
    unreasonable enforcement efforts and misplaced priorities.
        On behalf of the U.S. Chamber of Commerce, thank you for
    the opportunity to share some of these concerns with you today.
        [The statement of Ms. Olson follows:]

    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Byrne. Thank you, Ms. Olson. Thanks to every one
    of you, it was superb. Now, we go to the question portion of
    our hearing today. We are honored to have with us the
    chairwoman of the full committee, the Education and the
    Workforce Committee, Mrs. Virginia Foxx from North Carolina,
    and I recognize her for five minutes.
        Mrs. Foxx. Thank you very much, Mr. Chairman. I want to
    thank the witnesses for being here today, although I want to
    say this is pretty depressing testimony about the lack of
    action on the EEOC.
        I have to tell you, I am a person who absolutely abhors
    discrimination of any sort, and to hear the comments made about
    how the agency we consider most important, I think, in the
    government, and have for a long time, to make sure that we root
    out individual discrimination, it is pretty depressing.
        Let me go on with my questions. Ms. Vann, as I said, the
    primary role of the EEOC is to investigate charges of
    discrimination filed by individual workers to fairly and
    accurately assess the allegations and make a finding.
        Regrettably, you all testified and the chairman said in his
    comments, excellent comments at the beginning, that the backlog
    at the end of fiscal year 2016 was 73,508 unresolved charges.
    Some of them languishing for more than five years.
        We all know the phrase ``justice delayed is justice
    denied.'' You discussed the backlog in your testimony. Do you
    attribute the backlog to misguided policies and practices that
    can be changed? I think you imply that. Or, to a lack of
    resources? Would you say the emphasis on systemic
    investigations is the main reason for the persistently high
    backlog in the last eight years?
        Ms. Vann. Thank you for that question. I would answer it
    this way, beginning with your question about resources. I am
    skeptical that the steady increase in the charge backlog, we've
    seen an increase over the last four fiscal years, is as a
    result of a lack of resources as the agency's budget has either
    been increased slightly or remained flat.
        I would suggest that a large part of the backlog, the
    increasing backlog, is a direct result of the agency's
    misguided focus on systemic enforcement and the resources and
    time that is required to go into investigating those claims and
    prosecuting those claims.
        Now, to be sure, the backlog is not the highest that it's
    ever been, but in fiscal year 1995, as an example, the agency
    had over 90,000 charges in its backlog, but that was well
    before some of the very important steps that the agency took,
    including implementing the National Enforcement Plan and
    putting into place the priority charge handling procedures that
    really helped to address those issues.
        Mrs. Foxx. There is a similarity between 1995 and the last
    eight years, and that is these were both Democrat
    administrations.
        Ms. Vann, you also say in your testimony that the
    delegation of litigation authority to the EEOC General Counsel,
    with no vote by the Commission in most cases, how this has led
    to inconsistency in enforcement across the regions. The
    delegation also makes the litigation program unaccountable to
    the Commissioners who are supposed to lead the agency.
        How would you address this concern, and would you
    completely rescind the delegation so that the Commissioners
    must approve or disapprove legislation, or is there a mechanism
    you could see that would make this work better?
        Ms. Vann. Yes, ma'am. I would urge the agency to rescind
    the delegation of litigation authority entirely, at least in
    most cases. Perhaps the agency could flip the current approach,
    which as established now, allows the Commission to review only
    a handful of cases, really at the region's discretion.
        I would flip that model and have most of the cases except
    for perhaps a certain type of case go up to the Commission, and
    to that end, I would have the General Counsel also rescind his
    or her re-delegation to the regional attorneys and have General
    Counsel really making the call and being involved in every
    active litigation decision.
        Mrs. Foxx. Thank you very much. I yield back, Mr. Chairman.
        Chairman Byrne. Thank you, Madam Chairwoman. The
    subcommittee is also honored today to have the ranking member
    of the full committee, the honorable gentleman from Virginia,
    Mr. Bobby Scott. I recognize him for five minutes.
        Mr. Scott. Thank you, Mr. Chairman. Mr. Chair, this is the
    fourth hearing we have had in the last few years regarding the
    EEOC, but we have yet to hear from an actual Commissioner since
    2013.
        If we are going to criticize the priorities like individual
    cases, the value of class actions, and the various priorities,
    it seems to me we ought to invite a representative of the EEOC
    to explain their position.
        Mr. Cox, can you explain how the criminal justice guidance
    is consistent with Griggs v. Duke Power Company?
        Mr. Cox. Sure. Congressman Scott, Griggs stands for the
    concept that Title VII should be extended or should be
    interpreted as being able to reach discrimination that is sub
    rosa, that is not overt, that is sort of under the radar. That
    principle now more than ever is very important, the so-called
    ``disparate impact principle.''
        We know overt racial animus is something that we don't see
    as often as we used to, so Griggs is consistent with the
    criminal background check because that is exactly what is going
    on with the misuse of criminal backgrounds.
        The criminal justice system as we have discussed has a
    disproportionate impact on people of color because they are
    overrepresented in that system for a number of reasons,
    historically.
        We see and understand that so-called ``race neutral''
    policies that overtly don't discriminate can have a disparate
    impact on people of color because of that disproportionate
    representation in the criminal justice system.
        Title VII was interpreted as reaching that in 1975 in a
    case called Green v. Missouri Railroad. They set up a structure
    for employers to use in order to evaluate whether or not
    someone should be excluded because they had a criminal record.
        The EEOC guidance reflects that, and they set up a
    structure within the guidance to advise employers on how to
    apply Title VII in a way that would both protect frankly them
    from liability but also afford opportunities to those with
    criminal records.
        Mr. Scott. Thank you. I understand the EEOC is appealing a
    ruling of the Federal District Court in Michigan regarding the
    Religious Freedom Restoration Act and how it can possibly
    override Title VII. Can you explain the danger in allowing RFRA
    from overriding Title VII because an employer has a sincerely
    held religious belief?
        Mr. Cox. Certainly. That's the Harris Funeral Homes case, a
    transgender hiring case or employment case. I think cases like
    that, cases like Hobby Lobby, that allow for, as you described,
    sincerely held religious beliefs to be used to frankly
    discriminate or to exclude opens a dangerous door, and it
    threatens to open wide potential discrimination based on the
    number of bases, including race.
        In the past, we have seen such excuses or such beliefs be
    used for racial discrimination, and it's a slippery slope,
    particularly, frankly, in a climate where we see discrimination
    based on religion, in terms of who can immigrate to this
    country or attempts to discriminate based on religion, on that
    basis.
        So, we are very concerned about that, and would advise that
    not be the ruling obviously in this case but also not be
    policy.
        Mr. Scott. A lot has been said about systemic versus
    individual cases. Can you tell me the value of systemic cases?
        Mr. Cox. Systemic cases for the EEOC allows them to focus
    on an industry, on issues, a much broader set of circumstances.
    I have to also clarify that even with systemic discrimination
    cases in the EEOC, it all starts with a charge. Individual
    cases that come in, when they investigate them, if there is an
    allegation that has broader implications for the employer or
    for an industry, it may become a systemic case. It doesn't
    automatically become a litigation either. It could be
    investigated and resolved that way.
        There's not any inconsistency necessarily with an
    individual case or individual charge and a systemic piece of
    litigation. It's really about the strategy and the focus of the
    litigation, and why the EEOC decides to make it a systemic
    case. That is because there's an idea or belief there is a
    large set of circumstances or issues that can be addressed
    through the litigation.
        Mr. Scott. Can you quickly say the value of the EEO-1 pay
    data collection?
        Mr. Cox. Sure. As Mr. Takano pointed out, we are still
    seeing discrimination based on pay data for women, people of
    color, men of color, and also sort of discrimination that
    exposes a gap between their pay and the pay of white men.
        So, the idea behind the EEO-1 data collection was to afford
    employers an opportunity to collect information, collect data,
    and inspire them frankly to do some self-checking to perhaps
    get their own systems in order, so they are no longer
    discriminating.
        I understand the critique that's been leveled against the
    collection data, that it's not perfect, that it is seen as not
    necessarily getting the results that some would think are
    warranted.
        However, I think the response to that is to make it better,
    and to help the EEOC do a better job in doing the data
    collection, but the answer can't be not to comply or not to
    give the EEOC--
        Chairman Byrne. Mr. Cox, I am very sorry, you are going to
    have to wrap up fairly quickly.
        Mr. Cox. Sure. That's really the answer to the question.
        Mr. Scott. Thank you.
        Chairman Byrne. Thank you, Mr. Scott. I now call on myself
    for five minutes. Ms. Vann, the Obama administration made a
    number of claims over the years about the benefits of mandating
    the reporting of pay data.
        The Department of Labor's 2014 proposal to require federal
    contractors to report pay data said the data summarized at the
    industry level would enable contractors to ``assess their
    compensation structure along with those of others in the same
    industry and provide useful data to current and potential
    employees.''
        Quite apart from what the statutory obligation of an agency
    is, does not the Bureau of Labor Statistics and private
    entities already publish aggregate pay data for different
    occupations in geographical areas that is more refined and
    detailed than the EEOC will be able to publish?
        Ms. Vann. Mr. Chairman, I believe that's correct. The data
    that the EEOC would publish would provide no benchmarking
    utility whatsoever, aside from the lack of utility in its
    ability to identify actual potential discrimination.
        That is because even within industries, employers have very
    wide-ranging compensation and pay setting systems. Employers do
    not compensate their employees in the same way. There are a
    myriad of variables that go into calculating an individual
    employee's or class of employees' pay, so looking at those
    aggregated data as an employer, even within a particular
    industry, cannot tell me anything about where I am insofar as
    being a responsible employer that is complying with the law.
        Chairman Byrne. The second purpose listed in the Paperwork
    Reduction Act, and that is where the EEO-1 is coming from, the
    Paperwork Reduction Act increases paperwork. Only in Washington
    does that make sense.
        The second purpose is to ``Ensure the greatest possible
    public benefit from a maximized utility of information created,
    collected, maintained, used, shared, and disseminated by the
    Federal Government.'' Another purpose is to ``Improve the
    quality and use of federal information to strengthen decision
    making and accountability.''
        With respect to enforcement, will the pay data the EEOC
    collects be sufficiently refined or rigorous enough to be used
    as evidence in a court of law?
        Ms. Vann. Mr. Chairman, I believe it will not because again
    what the data collection purports to do is to provide to the
    enforcement agencies or to other outsiders summary data, which
    inherently is comparing apples to oranges.
        They're not comparing similarly situated individuals. It
    cannot produce data that is refined in that way because of all
    the problems and issues that were described by Ms. Ponder and
    others.
        Chairman Byrne. Ms. Olson, according to your testimony,
    EEOC vastly underestimated the burden estimate of the pay data
    reporting requirement by around $350 million. Would this error
    in the burden estimate constitute grounds for the Office of
    Management and Budget to rescind its prior approval of the pay
    data collection?
        Ms. Olson. Thank you. The answer is yes. Under the
    Paperwork Reduction Act, Section 3517 actually compels OMB to
    review and rescind a previously approved data collection device
    if the agency that proposed it substantially underestimated its
    burden.
        It could really do one of two things. It could either
    review it and rescind it or it could stay its effectiveness
    until there was an opportunity to have further review and input
    into that process.
        Chairman Byrne. Thank you. Ms. Ponder, you talked about
    mediation. I am a fan of mediation like you are. Explain from
    both an employer's perspective and an employee's perspective
    why mediation is a good thing.
        Ms. Ponder. Thank you, Mr. Chairman. From the employer's
    perspective, it is a time to look at the facts of the matter,
    see what happened, did we do something right, did something
    wrong, and really get a feel for the case. It is a time to
    actually hear from the claimant. A lot of times the complaints
    from the EEOC are very brief, and we actually have no idea what
    they're claiming. We always want to go to mediation and hear
    what they have to say and be able to assess what we need to do
    at that point.
        It's a time where we can settle it quickly, which for the
    employer is a good thing. We can move on, improve our
    practices, anything that we need to do that we've learned from
    the settlement.
        On the employee's side, the same thing. It's finality and
    quick. Sometimes these things can be taken care of within a few
    months of the claim being filed. Everyone goes on with their
    lives.
        Chairman Byrne. Thank you very much. I now call on Mr.
    Takano for five minutes of questions.
        Mr. Takano. Good morning. Thanks to all the witnesses. Ms.
    Olson, I want to begin with you. I just received some news
    about the Trump administration budget this morning. I have just
    learned they recommend moving the Office of Federal Contract
    Compliance Programs or OFCCP to the EEOC.
        I understand the Chamber has gone on record opposing this
    move. Can you share with us some of the Chamber's major
    concerns with this recommendation?
        Ms. Olson. Thank you for your question. Yes. I chair the
    EEO Subcommittee for the U.S. Chamber, and just last Friday, we
    had an extended conference call with companies across the
    country, approximately 50 companies joining. Each and every one
    of them expressed very serious concerns regarding a merger of
    the two agencies.
        Both the EEOC and the OFCCP are in need of reforms, and
    time would be better spent more efficiently, more effectively,
    more quickly on putting emphasis toward that as opposed to
    merging the two agencies.
        The two agencies serve very two different primary missions.
    Former, to advocate affirmative action and diversity, while the
    other to pursue discrimination claims as non-discrimination in
    employment. They have very different procedures. They have very
    different remedies.
        There is a concern that mixing the two different missions
    with very different enforcement devices as well as remedies is
    really going to confuse the issue as opposed to actually
    streamlining the mission, very different missions, of both of
    those agencies.
        Mr. Takano. Thank you. Mr. Cox, you might want to elaborate
    on the differences between EEOC and OFCCP and/or express your
    concerns about merging the two agencies.
        Mr. Cox. Sure. We would also oppose that and are very
    concerned about it. I think for us, we are worried that the
    missions of both agencies or both offices would be undermined.
        The EEOC, as has been discussed, is primarily a charge
    driven, complaint driven agency. OFCCP is more of a front-end
    focused organization. They're doing audits. They're assessing
    potential problems and helping employers on the front-end.
        We're concerned that by shifting the mission of OFCCP to
    the EEOC, it would definitely hamper the EEOC's ongoing work,
    particularly its systemic work, which we think is very
    important.
        We also worry that shifting that responsibility over
    without an increase in resources would undermine the EEOC's
    ongoing work as well. We already know the EEOC is suffering
    from being flat funded over the years, its inability to do
    aggressive hiring to meet the charges that are being filed with
    the EEOC.
        So, we have some serious concerns with that merger.
        Mr. Takano. I am heartened to hear that some on the
    Majority are concerned about the size of the backlog. I also
    understand the strategy of pursuing systemic review. Of the 90
    some odd cases in the backlog, do we understand if there is any
    pattern of those cases that would lend credence to the systemic
    strategy?
        Mr. Cox. Well, I think it's important to think about the
    backlog and systemic work or the work of the agency in general
    as complimentary. When I was at the EEOC working with Chair
    Berrien, she prioritized getting rid of the backlog, which has
    been talked about, why over the years it has come down. It's
    still significant, but it's come down significantly over the
    years.
        I think the way the backlog comes down is by looking at
    charges, resolving some that are not meritorious, moving some
    along the enforcement track, and then considering moving those
    down the enforcement track to possible litigation.
        Also, identifying those charges which again will have large
    impacts, that will have the ability to significantly move and
    protect a broad swath of rights in a particular industry.
        So, working on the backlog and reducing that is not at all
    at odds with systemic work or the work of the agency as a
    whole. I think what we want to do is think creatively about how
    we can use our investigative tools up front to make sure we can
    reduce the backlog, but also be strategic and focus on the most
    egregious discrimination that we see out there.
        Mr. Takano. Can you address more about the issue of pay
    data? We have heard a number of witnesses claim it is not going
    to do any good or it has no real purpose.
        Mr. Cox. Sure. As I said before to Mr. Scott, you know, the
    need for the pay data is clear, the disparities, particularly
    racial disparities, are well known and well documented.
        The critique that has been leveled that somehow the EEOC
    data collection is flawed does not remove the need to address
    pay discrimination, and what the EEOC would do with the data
    that has not really been discussed is not only use it for
    enforcement tools affirmatively, but provide an aggregate look
    at where we are with regard to pay discrimination regionally,
    by industry, they could do reports that would inform the public
    and employers about pay discrepancies, and to the extent
    employers are doing their own work internally that they think
    is better, I think one way to approach this is for them to
    partner with the EEOC and help them improve their data
    collection.
        I don't think the answer is--I know the answer is not to
    comply with the need to resolve pay discrimination.
        Mr. Takano. Thank you, Mr. Chairman.
        Chairman Byrne. Thank you, Mr. Takano. The chair now calls
    on Mr. Grothman of Wisconsin for five minutes.
        Mr. Grothman. Sure. I will start with Ms. Ponder or Ms.
    Vann. I am looking at this EEO-1 Form, which is the old form,
    which just hits me as incredibly burdensome, and I guess the
    number of data points is going to increase by a factor of over
    10. Who has to fill out this form?
        Ms. Ponder. In most companies, it is the H.R. Payroll
    Department.
        Mr. Grothman. Which companies?
        Ms. Ponder. Companies that have over 50 employees in one
    location.
        Mr. Grothman. Any company with at least 50 employees has to
    fill out one of these forms?
        Ms. Ponder. Yes.
        Mr. Grothman. How long has this been going on? How long
    have we been putting them under the problem of having to fill
    out this form or a predecessor of this form?
        Ms. Ponder. That, I don't know.
        Mr. Grothman. Anybody know?
        Ms. Vann. Decades.
        Mr. Cox. Over 50 years.
        Mr. Grothman. Over 50 years. Good we have Mr. Cox here, he
    knows what is going on. Over 50 years. For those of you back
    home that cannot see it, we have a form listing income, a
    plethora of job descriptions, male/female, and a variety of
    different races or ethnic groups here. This has been going on
    for 50 years.
        When you fill out this form, does it affect any hiring,
    firing, or promotion decisions of companies, and when they make
    these decisions, do they worry about how it is going to look on
    this form?
        Ms. Ponder. I can speak for my company, and we do look at
    them on a yearly basis. The form as it is today does give
    information where we are as far as men and women and the
    different races, and we do make sure that we're following the
    data there.
        I can tell you our internal data is much more specific, but
    we're going to look at the EEO-1 Report as it stands today.
        Mr. Grothman. You are with SHRM. It is the Society for
    Human Resource Management; right?
        Ms. Ponder. Yes.
        Mr. Grothman. When you make a hiring decision or a firing
    decision or a promotion decision, you begin to think how is it
    going to look at the end of the year on my EEO-1; correct?
        Ms. Ponder. Not how it's going to look, but are we actually
    hiring a diverse workforce. It's a tool that we can use today.
    It's one of many tools that we use to make sure we're hiring a
    diverse workforce.
        Mr. Grothman. You come from a big company, I take it. I do
    not know. How many employees?
        Ms. Ponder. Over 25,000, in charge of about 1,000 in the
    U.S.
        Mr. Grothman. So, you probably do this in-house, but the
    smaller companies, they hire firms to fill out these forms for
    them; correct?
        Ms. Ponder. Correct.
        Mr. Grothman. Usually, when those firms contract out to
    somebody, those organizations make suggestions as to who they
    should hire, I am told. Is that true?
        Ms. Ponder. As far as looking at the form as it is now?
        Mr. Grothman. Yes.
        Ms. Ponder. The form is self-evident, looking at your
    population, if you're hiring the right diversity--
        Mr. Grothman. It is self-evident you feel you have to hire
    certain people, and this has been going on for about 50 years
    now, in which we kind of push people into hiring one person
    over the other person?
        Ms. Ponder. I wouldn't say ``push.'' I would say keep us
    informed to make sure we are hiring a diverse workforce in the
    locations that we can.
        Mr. Grothman. It affects who you hire? These forms affect
    who you hire, you have two people in equal positions or close
    to an equal position, you may hire one person over the other
    person so it looks good on the form?
        Ms. Ponder. I've never done that.
        Mr. Grothman. You may or may not have. You say you are
    working towards making the form look better; correct?
        Ms. Ponder. We would like to make sure we're hiring a
    diverse workforce in the locations--
        Mr. Grothman. You are saying things but both things cannot
    be true. Either you are looking to make the numbers come out
    right for the federal government or you are not.
        Ms. Ponder. Not for the federal government. We don't base
    our hiring decisions on the EEO-1 Report. We base our hiring
    decisions on many data points to make sure again that our
    workforce is diverse. A diverse workforce is better for us.
    There are more ideas. There's more inputs coming into the
    business. Diversity is important for many reasons. The EEO-1
    Report is one tool that we can use to see how we're doing.
        Mr. Grothman. Okay. I will move on. How much do you think,
    and either for you or Ms. Vann, nationwide, we spend every year
    even filling out the current form?
        Ms. Vann. Sir, I don't have a precise estimate, but I would
    say it is in the tens of millions of dollars.
        Mr. Grothman. I will wait around for the second round.
        Chairman Byrne. Thank you, Mr. Grothman. The chair now
    recognizes the gentlewoman from North Carolina and my co-chair
    in the HBCU Caucus, Ms. Adams, for five minutes.
        Ms. Adams. Thank you, Mr. Chair, thank you, Ranking Member
    Takano, for bringing us together and to the panel, thank you
    very much for your testimony today, to discuss an issue that
    has major implications for our nation's economic outlook.
        The EEOC plays a critical role in promoting equal
    employment opportunity for American workers, including young
    people, our next generation of workers. Now more than ever we
    must do what we can to promote employment opportunities for
    youth. Nationally, almost 5 million young people are
    disconnected from both school and work.
        In my district in North Carolina, almost 15,000 young
    people are disconnected, and the disconnection rate for black
    youth is 16 percent. EEOC plays a pivotal role in breaking down
    barriers of employment for young people, especially young men
    of color.
        I do support the discussion about diversity. I think that
    is so critical, and I hope we are looking at the focus as well
    as making sure we are being inclusive.
        As a follow up, Mr. Cox, first of all, can you specifically
    speak to how EEOC's guidance on criminal background checks can
    help lessen barriers to employment for young people, especially
    young men of color?
        Mr. Cox. Certainly. First of all, the EEOC has an entire
    program dedicated to youth and youth at work, doing public
    education, designed public education programs focused on
    particular employment responsibilities and rights associated
    with work targeting youth.
        With regard to criminal background checks and criminal
    records, as I said before, the discredited war on drugs has
    disproportionately impacted people of color or communities of
    color, and given the prevalence of criminal records in
    communities of color and the ripple effect that it has had on
    young men of color, yes, eliminating blanket exclusions based
    on a criminal background would definitely help advance
    opportunities for that group.
        Ms. Adams. So, as a follow up, can you talk a little bit
    about what impact lessening these barriers and EEOC engagement
    in general can have on the economic outlook for communities of
    color?
        Mr. Cox. Sure. Well, with regard to criminal background
    checks?
        Ms. Adams. Right, absolutely.
        Mr. Cox. We know folks with criminal records face a number
    of barriers, folks who are newly released from prison or folks
    who have criminal records but never went to prison, facing
    enormous lifelong barriers, ability to get a job, ability to
    have housing, ability to get an education, all of which have
    ripple effects for them, for their communities, for their
    children going forward. Reducing earning opportunities,
    reducing opportunities for advancement economically. It impacts
    the entire community.
        It puts our communities at risk. We know that not having a
    job, not having housing, not having an education increases the
    likelihood that someone will recidivate. By offering
    opportunities, by removing the Scarlet Letter of sorts, of a
    criminal record, and removing the blanket exclusion of those
    with criminal records, we offer opportunities to increase
    economic opportunities for entire communities, but also to make
    our communities safer.
        Ms. Adams. Thank you, sir. In Footnote 42, page 17, Ms.
    Olson essentially asserts that for nursing homes or other
    health care facilities, it might be too expensive to assess
    whether a drug dealer or serial rapist is a suitable fit for
    employment.
        Mr. Cox, in your opinion, how difficult or expensive is it
    actually for an employer to simply conduct an individualized
    assessment at the appropriate stage in the hiring as the 2012
    guidance recommends?
        Mr. Cox. Sure. Well, two responses to that. First, I think
    it is important to reorient ourselves with regard to what we're
    talking about here. We're taking about a mandate pursuant to
    the Civil Rights Act of 1964. These are activities that
    employers should have been complying with since 1975.
        The guidance merely restates those requirements, laying out
    three tests that employers should apply regarding whether or
    not to exclude someone with a criminal record.
        So, I think the guidance really affords employers an
    opportunity to be efficient in how they conduct this. It lays
    out a very good, clear plan for how employers should look at a
    candidate and decide whether or not they should be excluded.
        The individualized assessment while not required by Title
    VII, in some ways breathes life into that process, and frankly,
    allows an employer to really incorporate that inquiry into its
    normal hiring process.
        Ms. Adams. Okay. Thank you very much. Mr. Chair, I yield
    back.
        Chairman Byrne. Thank you, Ms. Adams. The chair now
    recognizes the distinguished gentleman from New Jersey, Mr.
    Norcross.
        Mr. Norcross. Thank you, Mr. Chairman and ranking member. I
    represent over 200,000 people 55 years old or older. They have
    worked hard to build careers, raise families, excel at their
    jobs. Become outstanding members of their communities.
        We all know our economy is changing. Most people no longer
    work at just one company or even in the same profession for
    their entire career. This can be particularly difficult for
    older Americans who reinvent their career if their job becomes
    obsolete.
        For example, when a sales rep in New Jersey hit 60 years
    old, her quotas were changed completely to make it
    unachievable. Same thing happens for others over the age of 55.
        It is vital we protect employment opportunities for older
    Americans and perhaps more important now than ever before.
        A few weeks ago, the House passed the American Health Care
    Act that loosens the rules that allow insurance companies to
    charge older Americans higher premiums. Half of all Americans
    share in the cost of their health insurance premiums with their
    employers. When health insurance premiums cost more for older
    employees, it costs more for the employers.
        This creates another incentive for employers to use
    discriminatory practices, fire or avoid hiring older Americans
    altogether.
        Mr. Cox, talk about some of the challenges facing older
    Americans in the workforce as it relates to discrimination,
    reminding you that this is the 50th anniversary of the Age
    Discrimination and Employment Act in our country.
        Mr. Cox. Thank you, Congressman. Two responses. First, when
    I was at the EEOC, one of the major concerns that was raised
    was agreements that folks would be forced to sign that they
    would retire after a certain point in their employment process.
    There were cases that the EEOC litigated in that regard, and
    had a lot of opposition from my colleagues on this panel
    regarding the efficacy of extending age discrimination laws and
    strategies to protect that group.
        So, I think that is something we need to be aware of and
    think about. When someone goes and applies for a job and agrees
    to a job at a certain age, and they are in some ways coerced
    into signing a document saying at 55 or 60, they're going to
    retire, we need to be looking very closely at that. I think the
    EEOC was doing that, and I hope they will continue.
        I think the other thing to consider is that all of the
    strategies that we have been talking about, disparate impact,
    systemic, really apply across the board, across all of the
    EEOC's bases within which it does its work, whether that be
    race, sex, age, LGBT, or anything else.
        So, I think when you attack disparate impact or you attack
    systemic in one context, you really are pulling a thread at the
    overall enforcement strategy and tapestry of the agency that
    will affect everyone in this country who works, whether they be
    someone over 40 or over 55. Whether they are someone who faces
    discrimination based on race or sex.
        Mr. Norcross. Certainly, in making those decisions,
    employers take many things into consideration, like costs
    versus relevancy, experience of their employees is extremely
    important.
        You have two sides of the equation, and as we look into our
    health care system and the costs for older Americans are going
    to go up, that really impacts some of the decisions and the
    data collected is so relevant because particularly in a small
    company, is not able to look at that from their side of the
    aisle. It is very difficult to know what the employer is paying
    everybody.
        That is why the information collected is so important.
    Would you not agree?
        Mr. Cox. I would, Congressman. I think a critically
    important part of all of this is collecting it in an aggregate
    way. Obviously, the EEOC can use the data to inform its own
    enforcement, but for the Legal Defense Fund, it's critical for
    us to be able to see aggregately how an industry is behaving,
    how a particular set of employers are behaving in a region.
        We want to be able to lift up that information to inform
    our stakeholders, to inform other employers regarding the
    importance of not discriminating based on race and based on
    pay, and we want to be able to use that to educate folks.
        Mr. Norcross. Without this information, in many ways it
    would be impossible to see that.
        Mr. Cox. That's correct.
        Mr. Norcross. Thank you. I yield back.
        Chairman Byrne. Thank you, Mr. Norcross. The chair now
    recognizes the gentleman from Arizona, Mr. Grijalva, for five
    minutes.
        Mr. Grijalva. Thank you very much, Mr. Chairman. Mr. Cox,
    the unstated choice being presented today is the EEOC's work on
    individual cases versus systemic, broad-based, policy and
    practice over multiple entities, is it an either/or
    proposition?
        Mr. Cox. No, it's not, Congressman. I think, as I said
    earlier, and I really want to emphasize this, EEOC is a charge
    driven organization. It's a charge driven agency. It all begins
    with a charge. You look at that charge and you make a
    determination regarding the strategy that you're going to use
    to pursue it.
        Sometimes that charge may evolve into a larger systemic
    case, some folks would call that a ``class'' case, although the
    EEOC does not have that specific authority in the same way my
    organization does and can pursue.
        The bottom line is it all begins with a charge. It all
    begins with the charge comes through the door and the decisions
    are made on the merits regarding what to do.
        I think the other piece to think about is the EEOC sets
    priorities. The one thing we haven't talked about is the
    strategic enforcement plan that the EEOC issued this year and
    the last year, which lays out priorities for the agency to
    pursue, including emerging areas of discrimination. That also
    helps shape the priorities and the lens it uses in evaluating
    any of the charges that come in.
        Mr. Grijalva. The other question is--I do not know what the
    Trump recommendation is in terms of the budget regarding the
    EEOC, in particular, what allocation is being indicated there.
        Given the fact that maybe for the last four fiscal years,
    it has basically flat lined, not a reduction in EEOC activity,
    and the backlog that people complain about, it is a resource
    issue from your perspective, being able to deal individual plus
    what we just said on the either/or proposition?
        Mr. Cox. Sure. I think with regard to the backlog and with
    regard to its ability to file more cases, do more
    investigations, it's definitely a resource question. There have
    been a number of years, with all Federal agencies, but
    particularly the EEOC, who typically is under resourced from
    the very beginning. They have been living with continuing
    resolutions that flat fund them, but also living with, in the
    time I was there, a government shutdown, hiring freezes, the
    inability to actually source and plan for hiring in a way that
    is consistent with and allows them to be strategic, and that is
    something we all would favor. We think more resources would be
    in line.
        Mr. Grijalva. Accountability in terms of employment
    practices in this nation is an important part of the
    responsibility of the EEOC. We have not spoken about that, but
    I think it is important today in the testimony that EEOC,
    whether it is systemic cases, broad-based, the individual
    cases, provide fairness and the enforcement of law, and
    accountability.
        Could you speak to the issue of accountability and why the
    function is tied to that?
        Mr. Cox. Sure. I'm glad you asked that question. I think it
    is important not to lose sight in our discussion today about
    what this is frankly all about.
        The Civil Rights Act of 1964 is the embodiment of Brown v.
    Board of Education, which was sort of the tool for removing the
    stain of race discrimination in this country. The EEOC is the
    offshoot of the Civil Rights Act.
        So, it's important not to comodify rights. It's important
    not to simply see them as a cost of doing business.
        I think my colleagues, if they have a concern about Brown,
    they have a concern about the Civil Rights Act of 1964, we
    should actually have that conversation separately, and I'm
    happy to have that conversation, but I think today we should be
    talking about how we make the EEOC better, and how we can
    actually improve on its enforcement capabilities, how we can
    make sure the EEOC is holding all of us accountable, to make
    sure we're increasing employment opportunities.
        Mr. Grijalva. It is not about window dressing or it is not
    about them. It is a broad-based responsibility, not only to the
    Civil Rights Act, but to employment discrimination across many
    areas in this country.
        I yield back, Mr. Chairman.
        Chairman Byrne. Thank you, Mr. Grijalva. The chair now
    recognizes the gentleman from California, Mr. DeSaulnier, for
    five minutes.
        Mr. DeSaulnier. Thank you, Mr. Chairman. I want to thank
    the witnesses, the chairman and the ranking member for having
    this hearing.
        It is a little bit hard to process for me at this point in
    my life having lived through managing and owning businesses in
    California in the 1970s and 1980s and 1990s, when we had
    affirmative action, and in California, where we have fairly
    aggressive mechanisms in our legal process, but also just
    culturally, where equal opportunity, I always thought as an
    employer, was something that benefitted everyone. In the 30 to
    35 years I managed people, I can never remember it being a
    burden.
        Of course, as a small business person, you are always
    struggling, so when you have added layers, you have to think
    about it, first of all, it is just human nature. You tend to
    think how this makes your job more difficult, but then you
    think about the greater benefit.
        I certainly think in the Bay Area in California, we have
    benefitted from these protections, irrespective of the group of
    people we were trying to protect, and in a period of time when
    in this country opportunity is suffering in a country that
    prides itself on merit and hard work and the ability for talent
    to be able to rise up, that we are going in the opposite
    direction in this country, particularly in these protected
    classes.
        Mr. Cox, I have a couple of questions for you. We have had
    testimony today that at least appeared to be critical of the
    mediation process at EEOC, and who should accept the burden,
    and whether that was impartial or not.
        My understanding is the mediators are vetted to make
    certain they are impartial as possible, and the government
    actually covers the costs.
        Could you illuminate us on that?
        Mr. Cox. Sure. Yes, the government does cover the costs of
    mediation, that is my understanding as well. I think the
    mediation process is one tool the EEOC uses to resolve claims
    before litigation, like conciliation, like any other process.
        In the mediation process, in terms of who is speaking for
    the EEOC, that is the enforcement personnel, the folks who are
    doing the investigation, the folks who are in some ways
    advocating for the position of the EEOC, but the mediator
    stands as someone in between to try to work out the issues that
    are there.
        Mr. DeSaulnier. I want to talk a little bit about amicus.
    You obviously are very active in your role in the amicus
    subject. There has been criticism that the amicus process at
    the EEOC has had numerous ``defeats.'' Could you give your
    perspective on that view?
        Mr. Cox. Sure. Well, I can talk about how we approach our
    amicus program. First of all, amicus curiae offer their
    perspective to a court. They are called ``Friend of Court
    Briefs'' that are filed at any level within our judicial
    system.
        It's designed for parties or organizations that have an
    interest in a particular matter to share their perspective and
    expertise, and the EEOC's amicus program, they take great pride
    in it. The EEOC has an enormous amount of experience across a
    wide range of areas, so they have a robust program that they
    engage in.
        At the Legal Defense Fund, we do the same thing. We partner
    with the EEOC in filing amicus briefs in cases that they are
    working on, again, when we have an interest and we want to be
    able to advance our perspective on a particular matter.
        Mr. DeSaulnier. I have one other area that I want you to
    respond to or have the opportunity to respond to. There has
    been testimony today that ``Rather than focusing on increasing
    its systemic litigation docket, the EEOC should do more on the
    front-end to ensure that all discrimination charges it receives
    are properly categorized, investigated, and resolved.''
        On the surface, that makes perfect sense. Could you respond
    in the context of their budget being flat lined recently?
        Mr. Cox. Sure. Certainly, aligning the budget numbers with
    the amount of charges coming in would certainly help. I think
    the EEOC certainly has in place a strategy for dealing with and
    addressing charges that come in.
        This is in some ways responsive to your question, this
    notion that the EEOC is trigger happy or EEOC is just willy-
    nilly filing lawsuits is belied by the fact that they filed 86
    lawsuits in 2016, brought in 92,000 charges.
        Some would say and some have said that is a problem, if
    they filed double that, folks again on the panel would say
    that's a problem. I think it doesn't indicate that the EEOC is
    wildly filing lawsuits as opposed to dealing with and
    addressing charges on the front-end.
        I think increased resources and allowing the EEOC to be
    able to plan for hiring, again, this sort of willy-nilly C.R.
    approach that we have had in our budgeting doesn't allow
    agencies to properly plan, and I think that's been an issue.
        Mr. DeSaulnier. Thank you, Mr. Cox. I yield back.
        Chairman Byrne. The gentleman yields back. I would like to
    thank all of our witnesses for taking the time to testify
    before the subcommittee today. You each did a splendid job.
    Thank you for your testimony.
        Mr. Takano, do you have any closing remarks?
        Mr. Takano. I do, Mr. Chairman. Mr. Chairman, I appreciate
    that you held the hearing today on this subject. The name of
    our subcommittee, I want to remind everyone, is Workforce
    Protections, meaning that we should be doing our best to
    protect workers.
        Mr. Chairman, the EEOC's job should be about getting
    results for America's workers, not providing full employment
    for law firms looking for new ways to prevent resolution of a
    disputed discrimination case. We know all too well that justice
    delayed is justice denied.
        We have heard today about the burdens on employers that
    some feel the EEOC has placed, but we need to think about
    working people. When we talk about banning the box, we are not
    just discussing a policy initiative, we are talking about
    allowing real men and women a fair shot at a good job and life.
        When we talk about the EEO-1 Pay Data Form and the EEOC's
    work to end pay discrepancies, we are talking about ensuring
    that real people are getting all of their hard-earned money.
        The EEOC's work is still very much needed in our workforce,
    and we should not seek to hold them back. The Majority's claims
    that expanding the EEO-1 Form is burdensome was disproved by
    testimony today, even by some of the Majority's own witnesses.
        Much of this data has been collected for 50 years, and the
    employers already have W-2 data, which is one of the two forms
    of data the EEOC is proposing to add to the EEO-1.
        Ms. Ponder just told us that most employers' internal
    forms, meaning those forms that are not mandated by the federal
    government, are more detailed, and EEO-1 is just one of the
    forms employers collect and report on.
        I very suspicious the claim that data collection proposed
    under the EEO-1 Form is overly burdensome, it is admittedly
    complex, but I think collecting that data is very much common
    sense, and in the interest of trying to address the problem of
    pay disparities among minorities and women.
        Workers need to be protected, and that is why this
    subcommittee exists. As one of the seven openly LGBT members of
    Congress, I am encouraged by the work that the EEOC has
    undertaken to advocate for the rights of LGBT individuals under
    Title VII. All workers should feel safe and welcome in their
    work environments. Workers should not feel as though they are
    unwanted in their own workplace simply because of who they are,
    whom they love, or the color of their skin.
        I am disappointed once again, Mr. Chairman, that we have
    yet to have another hearing on the EEOC without actually
    inviting a representative from the Commission. We need to hear
    from the Commissioners directly.
        We have seen three of today's witnesses express their
    extreme reservations about combining the EEOC with OFCCP as a
    recommendation coming down today from the administration.
        I thank you for holding this hearing, and I yield back the
    balance of my time.
        Chairman Byrne. Thank you, Mr. Takano. Once again, I want
    to thank the witnesses. The 1964 Civil Rights Act makes America
    a better place. I know that because I am from Alabama. Alabama
    and things that happened in Alabama had a lot to do with the
    fact that we have a 1964 Civil Rights Act. I was nine years old
    when it was adopted. I got to grow up in Alabama and watch the
    beneficial changes from this law, and I strongly support it. It
    has done so many good things for people across America.
        I want to make sure we do everything in this subcommittee
    to assure that it's there for as far as the eye can see and it
    really works for the people of America.
        Now, the people that come to the EEOC seeking help are by
    definition ``workers.'' They are working, they are getting
    paychecks. We take money out of their paychecks every week or
    every two weeks, however they are paid. That money comes to the
    Federal Government, and it is supposed to go to departments and
    agencies that are there to help them.
        So, it is disturbing to me when we are supposed to be here
    to help them to find out, as I said earlier, unresolved cases
    are 90 percent higher in the last eight years than they were
    before, 90 percent.
        This is how it works, and the witnesses know this. An
    individual files a charge with the EEOC, the respondent, the
    employer, is told, given notice of it. The EEOC is supposed to
    investigate.
        There is nothing in that law that says the employee has to
    get a lawyer. That is why money was taken out of their
    paychecks to pay for this agency to investigate these claims. I
    can tell you as a practitioner, I rarely saw an investigation.
    Most of the time, there would be this long period of silence,
    and then a Right to Sue letter would come down.
        As a practitioner, I am a lawyer, that is what I do for a
    living, that is fine. You know, it is really not the way it is
    supposed to work. That agency was supposed to investigate the
    claim, and then if there was merit to it, go do something about
    it.
        Ms. Ponder and Ms. Vann talked about mediation. It works.
    You did not have to bring a claim in a lot of these cases, you
    mediate it and you get it resolved, quickly, as Ms. Ponder
    said, which is good for both the employer and the employee.
        Yes, you can do all that without a lawyer, and the employee
    does not have to pay a lawyer or have money taken out of
    whatever, the recovered amount is.
        It is better for the working people of America that we have
    an agency that simply does its job, and the evidence is
    overwhelming that in the last eight years, the EEOC did not do
    its most fundamental job, and we need to get it back to doing
    that fundamental job.
        I have heard a lot about these systemic cases. If there is
    a real systemic case out there, go make it. When I was a
    lawyer, that is what judges would tell us. Go make your case.
    The evidence we have is that many of these systemic cases
    turned out to be cases they could not make, and they have been
    reprimanded by federal judges for trying to make them. A
    further waste of resources that we do not have room to waste.
        This new EEO-1 plan, I said this earlier, only in the
    federal government would we use the Paperwork Reduction Act to
    come up with something that increases by 26 times the amount of
    information employers already provide. We have already heard
    this new data cannot be used as evidence in court, so once
    again, we are detracting ourselves from where we are supposed
    to be, which is taking care of these claims by individual
    Americans, the very heart of what the EEOC is supposed to do.
        I want very much for the EEOC to get back to the role
    designed by the 1964 Act for it to do. We are all about the
    individual workers in America on this subcommittee. I thought
    each and every one of you did a great job. You laid out the
    issues for us in a way that I think we all can understand.
        Now, it is our job on this subcommittee and the committee
    as a whole to work together to make sure we get the EEOC back
    to doing what it is supposed to do. That is to protect every
    American from unlawful discrimination by using the authority
    they have had for over 50 years, and using it in the
    appropriate way.
        There being no further business, this subcommittee stands
    adjourned.
        [Additional submission by Chairman Byrne follows:]

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        [Whereupon, at 11:32 a.m., the subcommittee was adjourned.]

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