[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:]
    
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    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:]
    
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    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:]
    
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    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:]
    
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    [Whereupon, at 11:32 a.m., the subcommittee was adjourned.]

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