[Senate Hearing 115-626]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 115-626

                              NOMINATIONS

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

                                HEARING

                                OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                                   ON

EXAMINING THE NOMINATIONS OF CARLOS G. MUNIZ, OF FLORIDA, TO BE GENERAL 
COUNSEL, DEPARTMENT OF EDUCATION, WHO WAS INTRODUCED BY SENATOR RUBIO, 
   AND JANET DHILLON, OF PENNSYLVANIA, AND DANIEL M. GADE, OF NORTH 
 DAKOTA, WHO WAS INTRODUCED BY SENATOR ISAKSON, BOTH TO BE A MEMBER OF 
              THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

                               __________

                           SEPTEMBER 19, 2017

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions
                                
                                
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                              


        Available via the World Wide Web: http://www.govinfo.gov
        
        
                                __________
                               

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
36-637 PDF                  WASHINGTON : 2019                     
          
--------------------------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected].                
        


          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

LAMAR ALEXANDER, Tennessee, Chairman
MICHAEL B. ENZI, Wyoming		PATTY MURRAY, Washington, Ranking Member
RICHARD BURR, North Carolina		BERNARD SANDERS (I), Vermont
JOHNNY ISAKSON, Georgia			ROBERT P. CASEY, JR., Pennsylvania
RAND PAUL, Kentucky			AL FRANKEN, Minnesota
SUSAN M. COLLINS, Maine			MICHAEL F. BENNET, Colorado
BILL CASSIDY, M.D., Louisiana		SHELDON WHITEHOUSE, Rhode Island
TODD YOUNG, Indiana			TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah			CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas			ELIZABETH WARREN, Massachusetts
LISA MURKOWSKI, Alaska			TIM KAINE, Virginia
TIM SCOTT, South Carolina		MARGARET WOOD HASSAN, 
                                         New Hampshire

               David P. Cleary, Republican Staff Director
         Lindsey Ward Seidman, Republican Deputy Staff Director
                 Evan Schatz, Democratic Staff Director
             John Righter, Democratic Deputy Staff Director

                                  (ii)

  
                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                      TUESDAY, SEPTEMBER 19, 2017

                                                                   Page

                           Committee Members

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, 
  Labor, and Pensions, Opening Statement.........................     1
Murray, Hon. Patty, Ranking Member, a U.S. Senator from the State 
  of Washington, Opening Statement...............................     3
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...     5
Rubio, Hon. Marco, a U.S. Senator from the State of Florida......     6
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina.    13
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania...................................................    18
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    21
Hassan, Hon. Maggie Wood, a U.S. Senator from the State of New 
  Hampshire......................................................    23
Murphy, Hon. Christopher S., a U.S. Senator from the State of 
  Connecticut....................................................    24
Warren, Hon. Elizabeth, a U.S. Senator from the State of 
  Massachusetts..................................................    26
Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin..    28
Kaine, Hon. Tim, a U.S. Senator from the State of Virginia.......    31

                               Witnesses

Dhillon, Janet, Newtown, PA, Nominated to be Member, Equal 
  Employment Opportunity Commission..............................     6
    Prepared statement...........................................     8
Gade, Daniel M., Ph.D., of New Windsor, NY, nominated to be 
  Member, Equal Employment Opportunity Commission................     9
    Prepared statement...........................................    11
Muniz, Carlos G., Tallahassee, FL, Nominated to be General 
  Counsel, Department of Education...............................    12
    Prepared statement...........................................    12

                                 (iii)
  

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Warren Question 11-US v. Fastrain II Corp.DE.226.Order 
      Granting MSJ Omnibus Order on Motions for Summary Judgement    38
    Warren Question 11-US v. Fastrain II Corp.DE.227.Final 
      Judgement in Favor of the U.S. Order.......................    47
Letters of National Support for Nomination of Daniel M. Gade and 
    Janet Dhillon to be a Member of the Equal Employment 
    Opportunity Commission:
    Hire Heroes USA..............................................    47
    Senator Bob Dole.............................................    48
    Senator Bob Kerrey...........................................    48
    Wounded Warrior Project......................................    49
    Retail Industry Leaders Association (RILA)...................    49
    Workforce Fairness Institute.................................    50
Response by Mr. Carlos G. Muniz to questions of:
    Senator Patty Murray.........................................    50
    Senator Bernard Sanders......................................    56
    Senator Robert P. Casey, Jr..................................    58
    Senator Michael F. Bennet....................................    58
    Senator Sheldon Whitehouse...................................    59
    Senator Tammy Baldwin........................................    60
    Senator Christopher S. Murphy................................    61
    Senator Elizabeth Warren.....................................    61
    Senator Tim Kaine............................................    69
    Senator Margaret Wood Hassan.................................    69
    Senator Todd Young...........................................    71
Response by Ms. Janet Dhillon to questions of:
    Senator Patty Murray.........................................    71
    Senator Bernard Sanders......................................    79
    Senator Al Franken...........................................    80
    Senator Sheldon Whitehouse...................................    81
    Senator Tammy Baldwin........................................    82
    Senator Elizabeth Warren.....................................    83
    Senator Tim Kaine............................................    89
    Senator Margaret Wood Hassan.................................    89
Response by Dr. Daniel M. Gade to questions of:
    Senator Patty Murray.........................................    90
    Senator Bernard Sanders......................................    98
    Senator Robert P. Casey, Jr..................................    98
    Senator Al Franken...........................................   100
    Senator Sheldon Whitehouse...................................   100
    Senator Elizabeth Warren.....................................   101
    Senator Tim Kaine............................................   106
    Senator Margaret Wood Hassan.................................   106



 
                              NOMINATIONS

                              ----------                              


                      Tuesday, September 19, 2017

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 10:04 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Lamar 
Alexander, Chairman of the Committee.
    [presiding] Murray, Isakson, Scott, Casey, Franken, 
Baldwin, Murphy, Warren, Hassan, and Kaine.
    Also present: Senator Rubio.

                 Opening Statement Of Senator Alexander

    The Chairman. Senator Murray is on her way, and she 
suggested that I go ahead and start, so I will do that.
    The Senate Committee on Health, Education, Labor, and 
Pensions will please come to order.
    This morning, we're holding a confirmation hearing on Janet 
Dhillon, nominated to be Commissioner and Chair of the Equal 
Employment Opportunity Commission; Daniel Gade, nominated to be 
Commissioner on the same Commission; Carlos Muniz, nominated to 
be the General Counsel of the U.S. Department of Education.
    Senator Murray and I will each have a brief opening 
statement. Senator Isakson will then introduce Dr. Gade, and 
Senator Rubio--and we welcome you, Marco. Thank you for being 
here--we'll introduce Mr. Muniz. After the nominees' 
testimonies, Senators will have an opportunity to ask the 
nominees 5 minutes of questions.
    Today we will consider two nominations for the Equal 
Employment Opportunity Commission. It was established by the 
Civil Rights Act of 1964 and serves an important role in our 
Nation's workplaces. Under the leadership of five commissioners 
and a General Counsel, EEOC is charged with protecting 
employees from discrimination at work through enforcement of 
equal employment opportunity laws.
    The Commission investigates allegations of discrimination 
and seeks to mediate cases, allowing lawsuits to go forward if 
settlements are unsuccessful. The General Counsel pursues 
allegations of discrimination in court and has been deputized 
by the Commission to initiate litigation in many instances. The 
Commission also issues guidance to inform the public about how 
it believes employers should interpret and apply the laws.
    Currently, the EEOC has three vacancies. Two are vacant 
Commissioner seats, and the third is for the agency's General 
Counsel. Today, we are considering the Commissioner nominees.
    Ms. Dhillon has been nominated to serve as Commissioner and 
Chair. She has an impressive record. She served as General 
Counsel for three Fortune 500 companies: Burlington Stores, JC 
Penney, and US Airways. She graduated from UCLA Law School, 
where she was first in her class. She spent 13 years in private 
practice.
    She was nominated on June 29. On July 18, we received her 
Ethics paperwork. The Office of Government Ethics wrote to me 
that she is in compliance with all of the applicable laws and 
regulations. The Committee received her paperwork on July 27.
    Dr. Gade is the second Commissioner nominee. He is a 
decorated veteran who served in Iraq and was wounded in action. 
He has earned a Bronze Star, two Purple Hearts, and an Army 
Commendation Medal for Valor. He has become a national expert 
on disability policy and the challenges facing disabled 
veterans and all disabled people in this country.
    He graduated from West Point. He returned there as a 
professor in 2011. He holds a Masters and Ph.D. in public 
administration and policy from the University of Georgia. He 
served in the White House Domestic Policy Council for George W. 
Bush, was appointed to the National Council on Disability, and 
has served on various advisory Committees advising the 
Secretary of Veterans' Affairs. We received his nomination 
August 2nd, his paperwork from Government Ethics on August 8th, 
and OGE wrote that he was in compliance with all of those, and 
we received his Committee paperwork on August 10th.
    For the last 7 years, Congress has been stuck in a partisan 
stalemate over health insurance, which is not the main issue we 
ought to be addressing. We ought to be focusing on the rest of 
health care, which has grown from consuming 9 percent of the 
Gross Domestic Product in 1980 to nearly 18 percent in 2015, 
and a predicted 20 percent in 2025, according to CMS. While 
there are many components to the cost of health care, there is 
a consensus that wellness and leading a healthier lifestyle 
reduce the need for health care and saves money and lives.
    For example, the Cleveland Clinic said that if you achieve 
at least four normal measures of good health, such as a healthy 
body mass index and blood pressure, and you see a primary care 
physician regularly, and you keep immunizations up to date, you 
will avoid chronic disease about 80 percent of the time. 
Congress agreed when it passed the Affordable Care Act in 2010 
by including a provision that allowed employers to discount 
health insurance premiums for healthy lifestyle choices like 
quitting smoking or maintaining a healthy cholesterol level. It 
was one of the few parts of the Affordable Care Act that 
everybody agreed on.
    The Obama administration sought to implement the provision 
through three different agencies, but the EEOC issued 
regulations that limited the ability of the administration to 
do what Congress told it to do and reduced the discount that 
employers could give for participation in a wellness program. 
Roughly 60 percent of insured Americans get their health 
insurance on the job, and one of the most straightforward ways 
to encourage wellness and reduce health care cost is to give 
those employers clear guidelines. As Commissioners, my hope is 
that you will create clear rules for employer-sponsored 
wellness programs and implement the law the way Congress wrote 
it.
    I look forward to your testimony and thank you for your 
willingness to serve.
    Senator Murray.

                  Opening Statement of Senator Murray

    Senator Murray. Well, thank you very much, Chairman 
Alexander.
    Before I begin, I do want to address the pivotal moment 
that we are in on health care. This Committee has had a 
productive bipartisan conversation about really concrete ways 
to stabilize the market and prevent families from paying higher 
premiums next year, and it's imminent upon us.
    When it comes to policy, I think it's very clear that there 
is a lot more that we agree on and disagree on. I feel 
optimistic if we can focus on that common goal and come to our 
final differences and deliver a result, it will be the right 
thing for the country, and I just wanted to say that at the 
top.
    With that, I do want to thank you again, Chairman 
Alexander, for this hearing. I want to thank all of our 
nominees today and their families who are here.
    Dr. Gade, I want to thank you for your service to our 
country as well.
    I am pleased that we're going to be able to hear from all 
three of you today on your visions for these critically 
important roles at the Department of Education and the Equal 
Employment Opportunity Commission. You all are being nominated 
to these positions at a really pivotal moment, and I am 
concerned that since taking office, the President has rolled 
back protections for workers and students and promoted policies 
that do make it harder for working families to get ahead. I'm 
hoping to hear from each of you today that you don't intend 
just to be a rubber stamp for the President's policies and 
agenda.
    Mr. Muniz, I'm sure you will recall the millions of parents 
and students and teachers who stood up after Secretary DeVos' 
nomination and her confirmation hearing to raise their concerns 
about her lack of knowledge about education and oppose her 
anti-public school agenda. It is clear to me that since day 
one, she has rolled back protections for students and 
borrowers, making it easier for predatory for-profit colleges 
to take advantage of students. She has promoted her 
privatization agenda, and her record on upholding civil rights 
protection for students has been abysmal.
    She scaled back the Office of Civil Rights, signaled to 
schools that they can once again discriminate against 
transgender students, and is considering revoking guidance that 
directs schools on how to investigate claims of campus sexual 
assault. The Department of Education's primary responsibility 
is to stand up for our students.
    I have to say I'm disappointed by those actions, because I 
think our children are the most important investment we make, 
and the protections they have are critically important. We 
should be working together to make sure every student can get a 
good public school in their own neighborhood and those who want 
to attend college are able to afford it and to climb that 
ladder of opportunity without a mountain of debt.
    We need to make sure that those in the workforce are being 
paid what they deserve, working in safe environments, and free 
from discrimination at work. I am concerned that we have 
watched as President Trump undermined worker protections and 
made it easier for corporations to take advantage of workers 
today, and he has, as we all know, repeatedly disparaged and 
discriminated against millions of people across this country. 
His actions, though not surprising after his behavior on the 
campaign trail, do go against everything the EEOC stands for. 
That is a critical, independent agency that is responsible for 
protecting workers from discrimination.
    Ms. Dhillon and Dr. Gade, I hope you are prepared to 
demonstrate that you do not share all of the President's views 
on race and civil rights and women and immigrants and people 
with disabilities and the LGBT community, and that you are 
willing to stand up to him when it's necessary. I want to 
discuss some of my initial concerns that I'm hoping the three 
of you can address today.
    Mr. Muniz, Secretary DeVos' clear lack of understanding on 
education issues and current law makes it clear to me that she 
does need an independent General Counsel who will stand up to 
her if laws are being broken or ethics rules are being bent. 
You have worked for individuals and companies that seem to care 
more about big businesses and for-profit colleges, sometimes at 
the expense of families and students.
    You indicated in our meeting that you admired Secretary 
DeVos. I hope you plan today to lay out your commitment to 
remaining independent at the Department of Education and not 
just blindly implement whatever is handed to you.
    Ms. Dhillon, the Chair of the EEOC influences the agenda 
and decisions of the EEOC. You spent your career, as we know, 
fighting on the side of big businesses, advocating for rules 
that often undermine worker protections. I really hope today 
that you can speak a little bit about how you stand with 
workers and not just be another voice for those at the top.
    Dr. Gade, in news reports yesterday, you confirmed that in 
2011, you made disparaging quotes about women in combat roles, 
saying, and I quote, ``The idea of women in that environment is 
laughable.'' Though you said your position has changed, these 
comments, as you can imagine, are pretty troubling and suggest 
a lack of judgment and respect for women. Along with your lack 
of experience in employment law, it is really concerning to me. 
I hope to hear from you today on that.
    This is a critical agency. You know that. It helps our 
workers by enforcing their civil rights. I'm very interested on 
where you stand on major issues, including the wage gap that's 
important to workers, sexual orientation and gender identity 
discrimination, wellness rules, and cases involving systemic 
discrimination, because we all know today that a lot of 
families are really struggling, and we need to be doing 
everything we can to help them get ahead. Whether they choose 
to do that through higher education or working hard at a good-
paying job, we need to help families join that middle class.
    That's what I'm interested in hearing today, and I look 
forward to all of your testimonies and answers to questions.
    The Chairman. Thank you, Senator Murray.
    Senator Isakson, would you like to introduce Dr. Gade?

                      Statement of Senator Isakson

    Senator Isakson. I would, Mr. Chairman, and it's really a 
privilege and honor. You know, as Senators, we're called upon 
to come before Committees when somebody from our state is 
nominated and make what, many times, is a perfunctory 
introduction of that individual. For me, this is not 
perfunctory. I have the chance to introduce a true American 
hero, a man that I met a number of years ago when he came to do 
an internship in my office for a month, after recovering at 
Walter Reed from severe injuries he suffered in Iraq.
    I got to know Dan as a person, as a man, and as a veteran 
of the United States military. He was not just a man who talked 
the talk. He walked the walk and is the perfect nominee for the 
Equal Employment Opportunity Commission today, and I commend 
him to all of you.
    Dan is not a Georgian, but he has deep roots there. He 
graduated twice from the University of Georgia with a Master's 
and a Doctorate in public administration. He had a young man 
that he commanded in his company in Iraq whose first name was 
Tyler, who was severely wounded and died in Iraq. Dan came 
home, and when he had his first son, he named his son Tyler 
after him, out of respect for the man he served with who died 
for our country.
    Dan is an unequalled individual, in my knowledge, for the 
subject he's been nominated to handle in terms of the Equal 
Employment Opportunity Commission, and I know he'll do a great 
job. More importantly, he'll do a great job for America, and he 
will represent the best interests of people with disabilities, 
as well as any other things upon which discrimination is often 
applied in terms of employment.
    He's a lucky guy, too. His wife is here with his kids 
today, and I want them to stand up. His wife, Wendy, of 18 
years; Anna Grace--she's beautiful, by the way--Tyler and 
William; Dan's mother, Erica; and his cousin, Melanie. Will you 
all stand, please?
    Give them a big round of applause.
    [Applause.]
    Senator Isakson. We all know that although it's Dan who's 
appointed, it's the family and the children who support him in 
his appointment. He will be a great servant to the people of 
the United States of America as he already has been on the 
battlefield and as an instructor at West Point, and he serves 
us well today in the U.S. Senate.
    Dan, welcome to the Senate. Congratulations on your 
nomination. I commend you to the Members of the Committee and 
urge them to vote for a man who served our country well and 
will serve us well on a continuing basis on the Commission.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Isakson.
    Senator Isakson is Chairman of the Veterans' Affairs 
Committee, and we thank him for that.
    We welcome Senator Rubio. Thank you for being here, and we 
look forward to your introductory remarks about Mr. Muniz. I 
know you've got a busy schedule this morning, so if you need--
you're welcome to stay, but if you need to leave after the 
introduction, why, we understand that.
    Senator Rubio.

                       Statement of Senator Rubio

    Senator Rubio. Thank you, Mr. Chairman. I'd love to stay, 
but I have a couple of other Committees, but we'll watch it on 
television.
    In any event, I thank you, Mr. Chairman, and to the Ranking 
Member and all of you. I'm honored to be here today to 
introduce my friend and a fellow Floridian, Carlos Muniz, to be 
the President's nominee for the General Counsel for the United 
States Department of Education. Carlos has a long history of 
public service. I actually had the pleasure of working with him 
during my time as Speaker of the Florida House, where he served 
as my deputy chief of staff and counsel.
    He's also served under Governor Jeb Bush and most recently 
under our Attorney General Pam Bondi. Without a doubt, he's 
been an asset to the people of Florida everywhere he has 
served. As you can see on paper, he's clearly an extraordinary 
and accomplished individual. Knowing him, he'd probably tell 
you that he's most proud of being a father to his three 
children, Robert, William, and Lydia, and a husband to his 
wife, Katie.
    Without a doubt, he has a servant's heart and a keen sense 
of selflessness that I think drives him to help others. I also 
think that the fact that he's still devoted to the Washington 
Redskins demonstrates he has a sense of loyalty and commitment 
even during times of incredible adversity. Look who's talking, 
as a Dolphin fan.
    [Laughter.]
    Senator Rubio. In any event, most importantly, I have seen 
his ability to work in an objective, nonpartisan fashion, which 
makes him the ideal candidate for the position of General 
Counsel, and I'm confident he will serve this Nation the way he 
served Florida, admirably.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Rubio.
    Now we'll look forward to--if you could summarize your 
remarks in about 5 minutes, we'll start with Ms. Dhillon and 
Dr. Gade and then Mr. Muniz. Then we'll go to rounds of 
questions by the Senators.
    Ms. Dhillon, welcome.

                   STATEMENT OF JANET DHILLON

    Ms. Dhillon. Thank you. Chairman Alexander, Ranking Member 
Murray, and Members of the Committee, thank you for the 
opportunity to appear before you today. It is an honor to be 
here as the President's nominee for Chair of the Equal 
Employment Opportunity Commission, and I thank the President 
for his nomination.
    With me here today is my husband, Uttam Dhillon. We 
recently celebrated our 32nd wedding anniversary, and I'm 
grateful every day for his love and support.
    I grew up in southern California, the daughter of two 
public school teachers. My parents had high standards. They 
expected that my sister and I would respect our teachers, do 
well in school, and graduate from college. They never placed 
any limits on our ambitions and certainly not because of our 
sex.
    For example, in elementary school, I informed my parents 
that I wanted to learn how to play the trombone. I'd seen the 
boys playing the trombone in the school marching band, and it 
looked like it was fun to me. My parents dutifully acquired a 
trombone, which was significantly more expensive than the 
flutes and clarinets that my girlfriends played. They then 
spent the next decade driving me and my trombone to and from 
band practices and events. Had I decided to play the flute or 
clarinet, as the other girls did, I could have walked. For the 
10 years that I played the trombone in school bands, I was the 
only girl in the trombone section.
    After college and law school, I was in private practice for 
13 years, most of that time litigating cases. I then moved into 
an in-house role, and I served as General Counsel of three 
Fortune 500 companies. My professional career is a testament to 
the impact of the Civil Rights Act of 1964, as well as the 
efforts of the EEOC and others in the civil rights community, 
as well as the women who came before me.
    In the over 50 years since the Equal Employment Opportunity 
Commission was established, this country has made great strides 
toward achieving the goal of equal opportunity in the 
workplace. Barriers have been reduced and opportunities have 
been expanded. Yet, unfortunately, the goal of a 
nondiscriminatory workplace has not been fully achieved, and, 
thus, the EEOC's work is not done.
    Notwithstanding the tremendous efforts on the part of many, 
including those at the EEOC, there continues to be unlawful 
discrimination in the workplace. Such discrimination is not 
only illegal. It's economically counterproductive, and it's 
corrosive to the very fabric of our society.
    In my prior roles in the private sector, I have seen the 
EEOC in action and the positive impact that it has on 
workplaces across the country. If I have the privilege of being 
confirmed, I would work to build on the agency's legacy to 
tackle workplace discrimination, seeking to strike a careful 
balance between enforcement and compliance assistance.
    I believe that the EEOC must be highly responsive to those 
who raise claims of discrimination. We owe it to those 
employees, as well as everyone else involved, to swiftly 
address their concerns. Notwithstanding the efforts of many in 
the agency, the EEOC currently has a substantial backlog of 
charges, and this situation is not new. It's a sad reality 
that, too often, justice delayed can be justice denied. 
Evidence can be misplaced, and memories can fade. Thus, it's 
critical that charges are handled promptly.
    Part of that effort involves meaningful conciliation 
efforts, which are a vital part of the agency's mission. 
Successful conciliation avoids time-consuming, expensive 
litigation and is a win-win for all. I believe that litigation 
truly is a last resort. However, when it does become necessary, 
the EEOC's litigation should be conducted with the highest 
ethical standards.
    The EEOC is the preeminent Federal agency on workplace 
discrimination issues. Its work in the courtroom should be 
consistently excellent and at all time demonstrate respect for 
the tribunal and other litigants. Courts and others in the 
litigation process should recognize the EEOC as an honest 
broker whose advocacy is above reproach, whose motives are 
transparent, and whose approach is always constructive.
    Critically important to the EEOC's mission is outreach and 
education. When the EEOC is called upon to provide guidance or 
take regulatory action, it should do so in a way that is 
transparent and provides opportunity for all stakeholders to 
provide input. Honest exchanges and views, sharing of best 
practices, and vigorous debate will result in a better product 
for all involved.
    The past 50 years have seen tremendous changes in the 
workplace which have benefited not only employees and 
employers, but our Nation as a whole. The progress has been 
remarkable, but the job is not done.
    Thank you for your consideration, and I look forward to 
answering your questions.
    [The prepared statement of Ms. Dhillon follows:]
                  Prepared Statement of Janet Dhillon
    Chairman Alexander, Ranking Member Murray, and Members of the 
Committee:
    Thank you for the opportunity to appear before you today. It is an 
honor to be here as the President's nominee for Chair of the Equal 
Employment Opportunity Commission. With me here today is my husband, 
Uttam Dhillon. We recently celebrated our 32nd wedding anniversary--I 
am grateful every day for his love and support.
    I grew up in Southern California, the daughter of two public school 
teachers. While we were never wealthy, my parents always found the 
funds for books and set the example themselves by being voracious 
readers. My parents also had high standards. They expected that my 
sister and I would respect our teachers, do well in school, and 
graduate from college. They never placed any limits on our ambitions--
and certainly not because of our gender.
    For example, in elementary school I informed my parents that I 
wanted to learn how to play the trombone. I had seen boys playing 
trombone in the local high school marching band, and it looked like fun 
to me. My parents dutifully acquired a trombone--which was more 
expensive than the flutes that the other girls played. They then spent 
the next decade driving the trombone (and me) to and from band 
practices and events. Had I decided to play the flute, as the other 
girls did, it would have fit in my backpack and I could have walked. 
For the 10 years I played the trombone in school bands, I was the only 
girl in the trombone section. I learned early on in my life the 
importance of equal opportunity.
    After college and law school, I was in private practice for 13 
years, most of that time litigating cases. I then moved into an in-
house role. I have served as General Counsel of three Fortune 500 
companies, in the airline and retail industries. My professional career 
is a testament to the impact of the Civil Rights Act of 1964, as well 
as the efforts of the EEOC and others in the Civil Rights community, 
and the women that went before me. Now, after practicing law in the 
private sector for over 25 years, I would like to have the opportunity 
to give back in the form of public service as Chair of the EEOC.
    In the over 50 years since the Equal Employment Opportunity 
Commission was established, this country has made great strides toward 
achieving the goal of equal opportunity in the workplace. Barriers have 
been reduced, and opportunities expanded. Yet, unfortunately, the goal 
of a nondiscriminatory workplace has not been fully achieved, and thus 
the EEOC's work is not done. Notwithstanding the tremendous efforts on 
the part of many, including those at the EEOC, there continues to be 
unlawful discrimination in the workplace. Such discrimination is not 
only illegal, it is economically counterproductive, and is corrosive to 
the very fabric of our society.
    In my prior roles in the private sector, I have seen the EEOC in 
action--and the positive impact that it has had on workforces across 
the country. If I have the privilege of being confirmed as Chair of the 
EEOC, I would work to build on the agency's legacy to tackle workplace 
discrimination, seeking to strike a careful balance between enforcement 
and compliance assistance.
    I believe that the EEOC must be highly responsive to the employees 
who raise claims of discrimination. An employee's decision to bring a 
charge can be, in many instances, a courageous act--but an act that can 
also be stressful for the individual and his or her family. We owe it 
to these employees, as well as everyone else involved, to swiftly 
address their concerns. Notwithstanding the efforts of many in the 
agency, the EEOC currently has a substantial backlog of charges--and 
this situation is not new. It is the sad reality that too often, 
justice delayed is justice denied. Evidence can be misplaced, and 
memories fade with the passage of time. The opportunity to quickly 
remediate a discriminatory practice can also be lost--potentially to 
the detriment of other impacted employees. Thus, it is critical that 
charges are handled promptly--it is the right thing to do for 
employees, as well as employers. Part of that effort involves 
meaningful conciliation efforts--which are a vital part of the agency's 
mission. Successful conciliation avoids time-consuming, expensive and 
stressful litigation. It truly is a win-win result.
    I believe that litigation truly is a last resort. However, when it 
does become necessary, the EEOC's litigation should be conducted in 
accordance with the highest ethical standards. The EEOC is the 
preeminent Federal agency on workplace discrimination issues--its work 
in the courtroom should be consistently excellent, and at all times 
demonstrate respect for both the tribunal and other litigants. The 
EEOC's litigation attorneys should have access to the resources needed 
to conduct litigation to these high standards, and should be subject to 
careful oversight and given appropriate guidance. Courts and others in 
the litigation process should recognize the EEOC as an honest broker, 
whose advocacy is above reproach, motives are transparent, and approach 
is always constructive.
    Critically important to the EEOC's mission is outreach and 
education. I believe that most employers want to be law-abiding; the 
EEOC should continue to build on its work of providing tools to 
employers that allow them to be legally compliant. Where the EEOC is 
called upon to provide guidance or take regulatory action, it should do 
so in a way that is transparent, and provides opportunities for all 
stakeholders to provide input. Honest exchanges of views, sharing of 
best practices, and vigorous debate will result in a better product, 
which benefits all involved.
    The past 50 years has seen tremendous changes in the workplace, 
which have benefited not only employees and employers, but our nation 
as a whole. This progress has been remarkable--but the job is not done.
    Thank you for your consideration. I look forward to answering your 
questions.

                                 ______
                                 
    The Chairman. Thank you, Ms. Dhillon.
    Dr. Gade, welcome.

                  STATEMENT OF DANIEL M. GADE

    Dr. Gade. Chairman Alexander, Ranking Member Murray, and 
Members of the Committee, thank you for considering my 
nomination as a Commissioner of the Equal Employment 
Opportunity Commission.
    I want to start my statement by acknowledging my wife of 
more than 18 years and our three children. My first and most 
important job is to love them and provide for them, and I hope 
that I will always be the kind of man that they can emulate and 
respect. My mother, a patriot and mother of patriots, is also 
here and is a key reason that I am who I am.
    I also want to publicly thank the many men and women who I 
served with in my more than 20 years in the United States Army, 
some of whom have joined us this morning and are in the 
gallery. Your many examples of selflessness, courage, and 
sacrifice awe me and awe the American people. In particular, I 
want to thank the families of First Lieutenant Tyler Brown and 
Specialist Dennis Miller, both of whom were killed in action 
while under my command in Iraq in 2004. You laid your son's 
lives on the altar of freedom, and the American people are 
forever grateful.
    If confirmed, I will consider my service on the EEOC to be 
a natural sequel to my military service, recalling that the key 
phrase of my oath as a commissioned officer was to, quote, 
``Support and defend the Constitution of the United States 
against all enemies.'' My oath of office was not to a political 
party, nor to a particular President, but to a system of laws, 
not of men. Being able to point to the Constitution as the 
ultimate law of the land allows me to be anchored to a set of 
values that are independent of the political winds that have 
blown with increasing force for the last quarter century.
    The EEOC performs a critically important role in enforcing 
laws that prohibit employment discrimination on the bases of 
race, color, religion, sex, pregnancy, national origin, age, 
disability, and genetic information. I am committed to 
enforcing these laws in accordance with the authorizing statues 
of the EEOC and look forward to continuing to protect the 
vulnerable against those who would marginalize them or dismiss 
them from employment based on characteristics unrelated to 
their ability to perform the job at hand.
    I bring a unique though not unprecedented background to 
this position. I am one of very few non-attorneys to be 
appointed to the EEOC. Similarly, the EEOC has only had a small 
number of veterans as Commissioners in the 53 years since it 
was created. Fortunately, I am no stranger to either the 
Federal Government or the veterans and disability community. 
From 2007 to 2008, I served as an associate director of the 
Domestic Policy Council at the White House, where I was 
responsible for veterans' disability policy, ADA oversight, and 
military health care policy.
    I've also served on two different advisory Committees to 
the Secretary of Veterans' Affairs, and since 2015, I've served 
on the National Council on Disability, where I have been active 
in various critical disability policy initiatives. Simultaneous 
to several of those commissions, I taught political science and 
leadership courses for more than 5 years at the United States 
Military Academy after earning both a Master's and a Ph.D. in 
public administration and policy.
    I believe that my record of accomplishment in academia, 
government, military, and nonprofit roles makes me well suited 
to serve on the EEOC. I will bring a fresh, energetic, outside 
perspective; well developed judgment; proven character; and 
constitutional fidelity to my role as a Commissioner.
    If confirmed, I intend to act in a spirit of careful 
consideration and collegiality. I'm excited about working with 
the other Commissioners, the professional staff, law makers, 
and interested citizens and groups of citizens to combat 
illegal discrimination in all of its forms. Where the current 
anti-discrimination laws are unclear or contested, I intend to 
work with Congress, advocating that they be updated.
    My priorities, if confirmed, will be in the following 
areas. First, the backlog of charges being investigated by the 
EEOC needs to be addressed. Each outstanding charge means that 
both an employer and employee are waiting, sometimes for 
months, for a resolution. Second, I intend to take a close look 
at the Strategic Enforcement Plan in concert with the other 
Commissioners and professional staff to ensure that it is 
plotting the right course into the future. Third, I would like 
to spend time on educational and outreach functions of the EEOC 
in the sincere belief that most discrimination is unintentional 
and could be prevented with better information.
    I look forward to your questions.
    [The prepared statement of Dr. Gade follows:]
                  Prepared Statement of Daniel M. Gade
    Chairman Alexander, Ranking Member Murray, and Members of the 
Committee: Thank you for considering my nomination as a Commissioner of 
the Equal Employment
    Opportunity Commission. I want to start my statement by 
acknowledging my wife of more than 18 years, Wendy, and our three 
children. My first and most important job is to love them and provide 
for them, and I hope that I will always be the kind of man that they 
can emulate and respect. My mother, a patriot and mother of patriots, 
is also here and is a key reason that I am who I am.
    I also want to publicly thank the many men and women who I served 
with in my more than 20 years in the United States Army. Your many 
examples of selflessness, courage, and sacrifice awe me and awe the 
American people. In particular, I want to thank the families of First 
Lieutenant Tyler Brown and Specialist Dennis Miller, both of whom were 
killed in action while under my command in Iraq in 2004. You laid your 
sons' lives on the altar of freedom, and the American people are 
forever grateful.
    If confirmed, I will consider my service on the EEOC to be a 
natural sequel to my military service, recalling that the key phrase of 
my oath as a commissioned officer was ``to support and defend the 
Constitution of the United States against all enemies... ``My oath of 
office was not to a political party, nor to a particular President, but 
to a system of ``laws, not of men''. Being able to point to the 
Constitution as the ultimate law of the land allows me to be anchored 
to a set of values that are independent of the political winds that 
have blown with increasing force for the last quarter-century.
    The EEOC performs a critically important role in enforcing laws 
that prohibit employment discrimination on the bases of race, color, 
religion, sex, pregnancy, national origin, age, disability or genetic 
information. I am committed to enforcing these laws in accordance with 
the authorizing statute of the EEOC, and look forward to continuing to 
protect the vulnerable against those who would marginalize them or 
dismiss them from employment based on characteristics unrelated to 
their ability to perform the job at hand.
    I bring a unique, though not unprecedented, background to this 
position. I am one of very few non-attorneys to be appointed to the 
EEOC. Similarly, the EEOC has only had a small number of Veterans as 
Commissioners in the 53 years since it was created. Fortunately, I am 
no stranger to either the Federal Government or the Veterans and 
disability community. From 2007 to 2008, I served as an Associate 
Director of the Domestic Policy Council at the White House, where I was 
responsible for Veterans' disability policy, ADA oversight, and 
military health care policy. I have also served on two different 
advisory Committees to the Secretary of Veterans Affairs, and since 
2015 have served on the National Council on Disability, where I have 
been active in various critical disability policy initiatives. 
Simultaneous to several of those commissions, I taught political 
science and leadership courses for more than 5 years at the United 
States Military Academy after earning both a Master's degree and a 
Ph.D. in public administration and policy. I believe that my record of 
accomplishment in academia, government, military, and non-profit roles 
makes me well-suited to serve on the EEOC. I will bring a fresh, 
energetic outside perspective, well-developed judgment, proven 
character, and Constitutional fidelity to my role as a Commissioner.
    If confirmed, I intend to act in a spirit of careful consideration 
and collegiality. I am excited about working with the other 
commissioners, the professional staff, lawmakers, and interested 
citizens and groups of citizens to combat illegal discrimination in all 
of its forms. Where the current anti-discrimination laws are unclear or 
contested, I intend to work with Congress, advocating that they be 
updated.
    My priorities, if confirmed, will be in the following areas. First, 
the backlog of charges being investigated by the EEOC needs to be 
addressed. Each outstanding charge means that both an employer and an 
employee are waiting, sometimes for months, for a resolution. Second, I 
intend to take a close look at the Strategic Enforcement Plan, in 
concert with the other Commissioners and professional staff, to ensure 
that it is plotting the right course into the future. Third, I would 
like to spend time on the educational and outreach functions of the 
EEOC, in the sincere belief that most discrimination is unintentional 
and could be prevented with better information.
    I look forward to your questions.

                                 ______
                                 
    The Chairman. Thank you, Dr. Gade.
    Mr. Muniz, welcome.

                  STATEMENT OF CARLOS G. MUNIZ

    Mr. Muniz. Chairman Alexander, Ranking Member Murray, and 
Members of the Committee, it's an honor to appear before you 
today, and it's especially an honor to appear with these 
distinguished nominees.
    I've had the opportunity to meet with several of you and 
with your staffs. I'm grateful for the courtesy I've been shown 
in those meetings, and, if confirmed, I look forward to working 
with you cooperatively and in a spirit of good will.
    I'd like to begin by thanking President Trump for 
nominating me, Secretary DeVos for her support and confidence, 
and Senator Rubio for that very kind introduction. I'm 
especially grateful that Senator Rubio took time to be here 
today, given all the work that he's been doing helping our 
state recover from Hurricane Irma. I'd also like to thank the 
many mentors and colleagues who have helped me throughout my 
career, including Judge Jose Cabranes, for whom I had the great 
privilege of clerking.
    Finally, I'd like to mention and thank my family. My wife, 
Katie, and our three children, Robert, William, and Lydia, are 
at home in Tallahassee studying hard, but I know they're with 
me today in spirit. In the audience today are my parents, 
Carlos Muniz and Veronica Moreland, along with two of my dear 
friends, Greg Garr and Joe Riley. I appreciate their support 
and encouragement.
    My many years of prior government service, particularly on 
behalf of the State of Florida, have taught me the importance 
of the rule of law and the special accountability and 
obligations that come with public service. I would consider it 
a great honor to work with the leaders in the Department of 
Education, as well as the Department's career lawyers and civil 
servants, to carry out the many important responsibilities that 
this body's laws have assigned to the Department.
    If I am confirmed, I will embrace my obligation to follow 
the law. I will exercise independent judgment to give my 
clients at the Department candid legal advice. I understand and 
appreciate that my ultimate duty will be to the law, not to any 
individual or objective. You have my full commitment to honor 
these responsibilities.
    Thank you for your consideration, and I look forward to 
answering your questions.
    [The prepared statement of Mr. Muniz follows:]
                 Prepared Statement of Carlos G. Muniz
    Chairman Alexander, Ranking Member Murray, Members of the 
Committee: It is an honor to appear before you today as the nominee to 
be General Counsel of the U.S. Department of Education.
    I would like first to thank President Trump for nominating me and 
Secretary DeVos for her support and confidence. I would also like to 
thank Senator Rubio for introducing me. Finally, I would like to 
acknowledge how grateful I am to the many mentors, colleagues, and 
friends who have helped me over the years, and to my family, especially 
my wife Katie and our three children, Robert, William, and Lydia.
    At her own confirmation hearing, Secretary DeVos outlined many 
goals for her tenure as Secretary of Education-including: to promote an 
education system that meets the unique needs of each student; to 
support access to quality, affordable higher education; and to embrace 
new pathways of learning. She spoke of her commitment to supporting our 
public schools, to empowering our teachers, and to ensuring that all 
our students can pursue an education free from discrimination. She 
pledged to carry out Congress's intention to restore States' and local 
communities' primary role in education. It would be a great privilege 
to assist Secretary DeVos and her colleagues at the Department of 
Education in working to accomplish these noble objectives.
    Should I be given the honor of serving as the Department's General 
Counsel, I would bring to the position legal expertise and management 
skills developed over a 20-year career in private practice and in 
public service. As Deputy Attorney General of the State of Florida, 
Deputy General Counsel to the Florida Governor, an adviser to the 
Speaker of the Florida House of Representatives, and a State agency 
General Counsel, I have cultivated an expertise and appreciation for 
rigorous legal analysis, learned the importance of leading by example, 
and internalized the accountability that comes with public service. 
Perhaps most importantly, I have gained invaluable experience in, and 
pride myself on providing candid and independent legal advice, even 
when doing so is difficult.
    If confirmed by the Senate, I will strive to carry out my duties 
with humility, integrity, and civility. I will work cooperatively with 
Congress and with the Department's partners in the executive branch. I 
will be guided always by a reverence for the Constitution and for the 
rule of law.
    Thank you again for the opportunity to appear before you.

                                 ______
                                 
    The Chairman. Thank you, Mr. Muniz.
    We'll now go to 5-minute rounds of questions. I'll try to 
keep the questions to about 5 minutes. We have an 11 o'clock 
vote, so we'll take that into account. We'll begin with Senator 
Scott.

                       Statement of Senator Scott

    Senator Scott. Thank you, Mr. Chairman, and thank you to 
the panel for being here this morning.
    My question is for the EEOC nominees around two subjects. 
One is helping folks with disabilities find full time paid 
employment. It certainly seems to be easier for folks with 
disabilities to get apprenticeship programs and internships 
that don't always pay. I have found as a former employer and as 
a policymaker that there should be an emphasis placed on the 
priority for folks with disabilities to have access and 
opportunity for paid work.
    I've also seen studies from the Institute for Corporate 
Productivity that confirm that bringing people with 
disabilities onto your team is a boon for employers. It boosts 
morale and bolsters the bottom line, as companies of every 
variety have begun to recognize this. That's good news. We're 
still behind the curve, but we're making a lot of progress. 
I've found that in my own office that hiring folks with 
disabilities has been incredibly important to improving morale 
at the office.
    I will also suggest that having the opportunity to tour 
workplaces in South Carolina where companies focus on that 
prioritization has been an amazing experience for me. 
Walgreen's is a classic example where their distribution center 
in Williamston, South Carolina, has about 40 percent of the 
employees with disabilities, and according to the folks in the 
company headquarters, it is one of if not the most productive 
distribution center in their organization.
    We're not doing something positive and good just for the 
employee. We're doing something strong and helpful for the 
employer and, frankly, creating a better environment for our 
country from my perspective. I want to ensure that the rules 
passed down from agencies like the EEOC do not discourage 
employers from hiring individuals with disabilities.
    What role, if any, should the EEOC play in encouraging 
employers to hire individuals with disabilities, and how can 
the EEOC balance this role with a duty to preserve employer 
flexibility such that existing initiatives can proceed without 
disruptive unnecessary interventions?
    We'll start with you, ma'am.
    Ms. Dhillon. Thank you for your question, Senator Scott, 
and I completely agree with you about the importance of 
integrating disabled workers into the workforce, and I also 
agree with you that it is a win-win for the employers and the 
employees. In terms of what the EEOC can do, I think in terms--
it does have a bully pulpit, and the private employer community 
listens to what the EEOC has to say carefully. I think it can 
use that and highlight some of the types of examples that you 
brought up to help employers think creatively about how to 
expand opportunities in their workplace for disabled Americans 
and disabled workers.
    In addition, one of the things that EEOC has recently done 
is it has enacted some new regulations that will apply in the 
Federal workplace that are interesting and very creative in a 
lot of ways, and they will take effect next year. I think we're 
going to learn a lot from some of the very innovative 
approaches that the EEOC is advocating, and I think we're going 
to be able to develop some best practices that we can then 
share with the private employer community.
    Senator Scott. Thank you.
    Dr. Gade.
    Dr. Gade. Senator, thank you for the question. One of the 
key things to remember is that people with disabilities still, 
even though it's 2017, often face significant discrimination in 
the workplace and in society. I had a brief--maybe about a 30 
minute conversation this morning with the Capitol Police about 
why I needed to use a Segway in the building, and eventually I 
was able to get in. It was a moment where, if I had been late 
for a job interview or something, that could have cost me the 
job.
    The EEOC has a critically important role in enforcing 
those--the anti-discrimination laws that protect people with 
disabilities. More broadly, I think, as my colleague said, the 
fact that the agency has a bully pulpit is really important in 
educational outreach and in the--as we discuss the wellness 
regulations and so forth, all of those need to be carefully 
crafted so that they are assisting people with disabilities and 
assisting employers in hiring those folks.
    Senator Scott. Thank you.
    Mr. Chairman, my time is running out very quickly here. I'm 
not sure that you set the clock for 5 minutes or 2 minutes, but 
it went really fast.
    I will ask a question for the record about wellness 
programs. They are very effective. Voluntary wellness programs 
have helped many folks reduce their weight, improve their BMI 
indexes, become more consistent on their medicine, and help me 
make better choices on eating less ice cream. The reality of it 
is a lot of folks benefit in a lot of ways.
    I'd love to hear your perspective on that, and I'll ask for 
your answers to be submitted in writing.
    Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Scott.
    Senator Murray.
    Senator Murray. Thank you very much.
    Mr. Muniz, let me start with you. The bipartisan Every 
Student Succeeds Act was written by this Committee just 2 years 
ago, and we worked very hard to carefully strike a balance 
between providing states with flexibility while holding them 
accountable for ensuring that our schools provide high-quality 
education for all of our students.
    According to news reports, Secretary DeVos wished the law--
and I'm going to quote her--``gave states even more 
flexibility,'' and she encouraged states to, quote, ``go right 
up to the line, test how far it takes to get over it.'' Well, 
I'm worried about that willingness to skirt the law in a number 
of instances from the Department, and, in fact, the Department 
is now facing lawsuits for unilaterally delaying and failing to 
implement rules that would protect students and provide relief 
to defrauded borrowers in violation of current law.
    I wanted to ask you would you give states and other 
stakeholders the legal advice to go right up to the line of a 
law that Congress has written and test how far it takes to go 
over it?
    Mr. Muniz. Senator, thank you for that question. My advice 
to states would be to make a good faith effort to comply with 
the law, and my advice to the Secretary will always be to 
scrupulously follow the law and apply the requirements in ESSA 
when she is reviewing state plans.
    Senator Murray. Okay. You have said your role is to help 
your clients understand their bounds of discretion in the law. 
Correct? Is it your job to help Secretary DeVos figure out how 
to get past the laws Congress has written?
    Mr. Muniz. No, Senator. My job will be to advise her as to 
what the law requires, advise her what her discretion might be, 
advise her of her options, and give her the opportunity to make 
an informed judgment as to what the right to do is.
    Senator Murray. Okay. I appreciate that.
    Let me turn to both of you. The EEOC interprets the Civil 
Rights Act as forbidding employment discrimination based on 
gender identity or sexual orientation. The EEOC's work has 
allowed millions of people now to seek employment while knowing 
that if they run into discrimination, the EEOC will have their 
back. This is really important, because lesbian, gay, bisexual, 
and transgender workers are far more likely to be unemployed or 
live in poverty. Dr. Gade and Ms. Dhillon, I want to ask you--
millions of LGBTQ workers want to know if you'll stand up for 
them in this position.
    Dr. Gade, let me start with you, and in the interest of 
time, please, yes or no. If the question is raised at the 
Commission about whether to change any part of the EEOC's 
current position, do you commit to advocating for that current 
interpretation that it is against Federal law for employers to 
discriminate based on sexual orientation or gender identity?
    Dr. Gade. Senator, I'm personally opposed to discrimination 
on the basis of sexual orientation or gender identity, and I'm 
committed to enforcing the law as it is written and as the 
courts have interpreted it.
    Senator Murray. Ms. Dhillon, you want to be Chair of the 
EEOC, and the EEOC already has a position, and their position 
is clear. Discrimination includes sexual orientation and gender 
identity. It is not clear when the courts can take up this 
matter. The question I want to ask you is what will you do when 
the question is before you to decide? Will you commit to 
keeping the current position or not?
    Ms. Dhillon. Well, Senator, thank you for the question. As 
Dr. Gade has indicated, and I will echo, I am personally 
opposed to discrimination on the basis of gender identity or 
sexual orientation. As Chair of the EEOC, on this issue, I 
would be one of five votes. What I can commit to you is a very 
careful review and careful consultation with the career 
professional staff at the agency who have been working on this 
issue. As you noted, there is a dispute----
    Senator Murray. There is. My question to you is will you 
stand up for current law or not?
    Ms. Dhillon. Well, the current law, Senator, is in flux.
    Senator Murray. The question will come before you.
    Ms. Dhillon. It will. We now have a split in the circuits, 
and we also have two agencies that have taken differing views 
of the very same text. Absent a legislative solution to clarify 
that, I do believe, given that circumstance----
    Senator Murray. It sounds wishy-washy to me, but I 
appreciate the first part of your answer that you believe in 
not discriminating. I just have a few seconds left, and I did 
want to ask both of you a quick question. Women make up half 
the workforce. Two-thirds of them are primary or co-bread 
winners in America today, yet women still only make 80 cents on 
the dollar.
    Both of you have said that you support the collection of 
pay data by the EEOC. When we met in my office, you both told 
me it's important that we have that information so companies 
take a hard look at wage gaps in their workforce and for the 
EEOC to be able to use its enforcement power effectively. Late 
last month, the Trump administration froze the EEOC rule that 
would have finally brought some transparency to the pay 
practices of large employers.
    I only have--well, I'm out of time, so yes or no. Will each 
of you commit to me that you will make finalizing a transparent 
pay data collection by the EEOC a priority and that it will be 
finished in a timely manner?
    Dr. Gade. Yes, ma'am, absolutely.
    Ms. Dhillon. Yes, Senator.
    Senator Murray. Okay. Thank you to both of you. I 
appreciate that.
    The Chairman. Thank you, Senator Murray.
    Senator Isakson.
    Senator Isakson. Thank you, Chairman Alexander, and I 
apologize to the panel that I had to leave for a minute to make 
a quorum in Foreign Relations, but I'm back, and I'm glad to be 
back, because this is an important hearing.
    Dan, I welcome you to the Committee.
    Dr. Gade. Thank you, sir.
    Senator Isakson. I know you started the Independence 
Project, if I'm not mistaken----
    Dr. Gade. Yes, sir.
    Senator Isakson [continuing]. to empower veterans and 
employ veterans. Can you talk a little bit about what that has 
done since its founding?
    Dr. Gade. Yes, sir. It's part of my commitment to disabled 
veterans and to those who have served our country so admirably 
and with whom I was in the hospital. I was in the hospital with 
many of them, as I spent a year recovering from my wounds. One 
of the things I discovered was that, in many cases, what they 
need is a helping hand and not a handout. What the Independence 
Project does is help people get back on their feet by 
incentivizing wellness and by incentivizing employment, and 
we're gathering data on that project right now, and we're 
excited about what that could do for veterans in the future.
    Senator Isakson. You know, one thing I watched you do in my 
office the month that you worked for me when I was a Member of 
the House--you had just lost your leg in Iraq, if I'm not 
mistaken, the year before. Is that correct?
    Dr. Gade. Yes, sir, in 2005.
    Senator Isakson. You were in the process of rehabilitating 
at Walter Reed, Is that correct?
    Dr. Gade. I was--yes, sir.
    Senator Isakson. Well, for the benefit of the Committee and 
to answer some of Ms. Murray's questions, Senator Murray's 
questions, I would come in the office late in the afternoon, 
and something would be going on back in the back room, and Dan 
would have taken his leg off to use it as an example of how my 
staff shouldn't be embarrassed or afraid to deal with somebody 
with a disability but to embrace it. He was a great role model 
with our young staff and with people in the House on what 
somebody with a disability can do. I think that as a Member of 
this Commission, you have the opportunity to do the same thing 
for employees and for those who would employ people that have 
disabilities and handicaps.
    How much other work have you done with organizations other 
than your Independence Project that you can think of that 
promote the employment of people with disabilities?
    Dr. Gade. Extensive work with the Department of Veterans' 
Affairs, and then in government, while I was working at the 
White House, that was one of my key focuses as I worked with 
the Department of Veterans' Affairs, the Department of Labor, 
and others on those issues.
    Senator Isakson. You were an appointee of Speaker John 
Boehner at the time--council, Is that correct?
    Dr. Gade. No, sir. That's the National Council on 
Disability, which I currently serve on, and I was appointed in 
October 2015 right before he left office, and I currently serve 
as a Member of the National Council on Disability.
    Senator Isakson. We commend you on your work. Thank you for 
being willing to accept this responsibility, and I wish you 
well.
    Dr. Gade. Thank you, sir.
    Senator Isakson. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Isakson.
    Senator Casey.

                       Statement of Senator Casey

    Senator Casey. Mr. Chairman, thanks very much.
    I want to thank the nominees for your willingness to serve 
and the willingness of your families to support that. We're 
grateful, and, Dr. Gade, especially for your exemplary service 
to the country.
    Ms. Dhillon, I know you've got Pennsylvania connections, 
but in limited time, I'm going to direct my questions for 
today--the questions here as opposed to in writing--to Mr. 
Muniz.
    Two questions, one focused on the 2011 Dear Colleague 
letter, the guidance on sexual assault on our college campuses, 
and the other on public education. First of all, on the issue 
of sexual assault, to say it's an epidemic on our campuses is 
not in any way an overstatement. It might be an understatement. 
The best estimate is that one in five women are victims of 
sexual assault. We're just beginning over the last several 
years to deal with it more effectively, both by way of 
legislation, statutory change, as well as by the regulatory 
work that the--or the oversight work that the Department of 
Education does.
    I had a bill that I was able to get passed a couple of 
years ago when we made changes to the Violence Against Women 
Act, the so-called Campus SaVE Act, passed in 2013 after the 
regulatory process and went into effect the fall of 2015. We're 
into our second academic year of those requirements in place, 
and I think they're essential for college campuses to provide 
victims more help than they would provide otherwise.
    For example, if a victim comes forward and says that she 
wants to report an assault, the school now has to support her 
in a range of ways, according to my bill, but they have to help 
her to the extent that she can leave the campus and get a 
protective order from a court if that's what she desires. She 
can report it to law enforcement outside of the campus. One 
thing we tried to do in that bill was to say this is an issue 
for the whole campus. Everyone has to be part of the solution. 
That was progress made. There's other legislation to do even 
more.
    A lot of the debate, a lot of the discussion, has been 
around the so-called 2011 Dear Colleague letter by the 
Department. I don't agree with the assertion that somehow it's 
controversial to have a preponderance of the evidence standard 
as opposed to clear and convincing. In fact, there's a great 
white paper submitted by--I don't know how many--I didn't 
count--but many, many law professors who went through this. 
Among other things, they talk about how this standard has been 
around since the 1990s, through the Clinton administration, 
through the George W. Bush administration, never the subject of 
controversy or even comment, and now we have this debate that 
has ensued in the last couple of years.
    The assertions against the Dear Colleague letter are wrong, 
and, unfortunately, my prediction about what Secretary DeVos 
would do was correct. I knew that--I had a sense that she would 
challenge it, and, apparently, she is.
    I guess the first question I have is: As someone seeking 
this position, despite the longstanding articulation of this 
preponderance of the evidence standard being used and being 
necessary to ensure, quote, ``prompt and equitable,'' unquote, 
proceedings for Title IX sexual assault cases, how would you 
approach that, given that that preponderance standard is used 
for other areas of civil rights law as well? Will you commit to 
upholding this policy, which I believe, and I think a lot of 
people believe, is consistent with longstanding Department 
policy as well as longstanding civil rights law?
    Mr. Muniz. Senator, thank you for your question, and thank 
you for all the work you've done on this really important 
issue. In my capacity as a private citizen, I'm familiar with 
the public statements the Department has made about what they 
intend to do. I understand that the Department is going to be 
looking at the 2011 letter, looking at all the developments in 
this area, trying to keep a robust commitment to protecting 
students from any kind of sex discrimination, particularly 
sexual assault, while also trying to see if there are due 
process protections that might be helpful in that regard.
    The preponderance of the evidence standard, I understand, 
is something that's been debated and studied, and I fully 
expect that that will be part of the discussion during whatever 
process the Department undertakes. Hopefully, by going through 
that process, they'll be able to hear all sides of that 
argument and then end up with a product that ends up serving 
students as well as possible.
    Senator Casey. I would hope--I know I'm out of time. I 
would hope that as a good lawyer and, I'm sure, a very capable 
one, that you would tell the Secretary that not only you and 
your team, but she should read that white paper on the legal 
underpinning of where we are now with regard to that guidance. 
There's nothing wrong with a debate, but to create uncertainty 
and confusion for our colleges on something this important is 
just unacceptable. We're going to be watching very closely.
    I'll submit a question for the record on Title I funding 
and public education. Thanks very much.
    The Chairman. Thank you, Senator Casey.
    I'll ask my questions now, and at 11, I'm going to go vote, 
and Senator Isakson will chair, and then I'll come back, and 
other Senators can go back and forth.
    Let me continue with Senator Casey's line of questioning, 
Mr. Muniz. In April 2011, the Department issued a guidance 
under Title IX, known as a Dear Colleague letter, which told 
colleges and universities for the first time the standard of 
proof that must be used when investigating allegations of 
sexual assault. That guidance applies to about 6,000 colleges 
and universities and about 20 million students. There wasn't a 
public comment period.
    The head of the Office of Civil Rights for the Department, 
the Assistant Secretary, was here in June 2014, and I asked her 
this. I said, ``I've got here about 66 pages of guidance under 
Title IX. Do you expect institutions to comply with your Title 
IX guidance documents? The Secretary said, ``We do.'' I said, 
``You do?'' What authority do you have to do that? Why do you 
not go through the same process of public comment that the 
Department is going through under the Cleary Act?'' She said, 
``Well, we would if they were regulatory changes.'' I asked, 
``Why are they not regulatory changes?'' You require 6,000 
institutions to comply with this, correct?'' ``We do.'' ``Then 
who gave you the authority to do that?'' She said, ``Well, with 
gratitude, you did when I was confirmed.''
    Now, Mr. Muniz, do you agree that the Assistant Secretary 
for Civil Rights can issue a guidance and that colleges and 
universities must comply with that guidance?
    Mr. Muniz. Senator, thanks for that question. Although 
sometimes the line can be hard to find, I think the law is 
clear that guidance cannot create new binding obligations on 
regulated parties or entities. Whenever any agency is trying to 
decide whether to proceed through guidance or through 
rulemaking, they need to make sure that if they're issuing 
guidance that it's merely interpreting existing law and not 
creating new duties. Otherwise, they wouldn't be complying with 
the law.
    The Chairman. A guidance is not a law.
    Mr. Muniz. A guidance by definition is not law. It doesn't 
create new binding obligations.
    The Chairman. On the issue is standard of proof when 
investigating allegations of sexual assault, particularly 
changing an existing definition, wouldn't that seem to be more 
appropriate for a law or a regulation, which has the force of 
law after a period of public comment?
    Mr. Muniz. Senator, if the Department is imposing new 
obligations and new requirements that are binding, then that 
should be done through regulations.
    The Chairman. Let me ask the nominees for the Equal 
Employment Opportunity Commission--you heard my comments, and 
we discussed in my office my interest in focusing this 
Committee's attention on the high cost of health care, and my 
disappointment, which has been shared by other Senators, that 
perhaps the one thing, or at least one of the few things that 
Democrats and Republicans agreed with in the Affordable Care 
Act was the focus on wellness. If one were looking at a--I 
mean, there's agreement everywhere that a few lifestyle changes 
make a difference in health in a way that almost nothing else 
does.
    It's pretty elementary, also, that if you're looking for a 
way to implement incentives for those lifestyle changes, it's 
hard to think of a better way than the health insurance 
provided by employers, because 60 percent of us in the United 
States get our--that's 170 million or 180 million people--get 
our health insurance from employers. The Affordable Care Act 
said that employers could give employees discounts for 
following a healthy lifestyle, and the Obama administration had 
three agencies try to do that, and then the Equal Employment 
Opportunity Commission came long and limited what they could do 
and redefined what they could do.
    Now, my question to you is: Will you agree, now that it's 
back in your lap--because it went to court--back in your lap, 
and you have a chance to reconsider it, given the high cost of 
health care in the United States and your opportunity to clear 
up what employers may do to encourage a healthy lifestyle by 
their employees in the provision of health insurance and other 
benefits--will you make that a priority so employers in America 
will have a clear guideline about what they may do and what 
they may not do?
    Ms. Dhillon. Well, thank you, Senator, for the question. I 
share your views. I think wellness programs are incredibly 
important and very beneficial for employees and employers. As 
you noted, the district court has sent the EEOC's regulations 
back to the agency, and so yes, it would be a priority to redo 
those regulations to comply both with congressional intent and, 
obviously, the court's direction as well.
    The Chairman. Dr. Gade, I'm out of time, but your answer?
    Dr. Gade. Yes, sir, absolutely. One of the things I want to 
point out is that people with disabilities are particularly 
vulnerable to--if the wellness incentives are set in a way that 
disadvantage people with disabilities or disadvantage people 
because of their genetic information, those would be areas that 
would be very problematic as the new regulation is eventually 
rolled out. That's something that I look forward to 
participating in, but I absolutely agree with you that wellness 
is important.
    The Chairman. Dr. Gade, thank you.
    Senator Franken.

                      Statement of Senator Franken

    Senator Franken. Thank you, Mr. Chairman, and I want to 
thank you and the Ranking Member for holding today's hearing 
and for the hearings that we've had in this Committee over the 
past 2 weeks on individual health insurance market reforms.
    Our Committee is working in a very productive bipartisan 
way to tackle a difficult issue. We've heard from Governors, 
we've heard from insurance commissioners, and we've heard from 
experts, that all span the ideological spectrum. This is what 
regular order looks like, and this is the way the Senate is 
supposed to work.
    I've worked with everybody on the Committee here in good 
faith to reach a compromise that we can all feel proud of. 
However, all that work is in jeopardy because of a destructive 
partisan last-ditch effort to repeal the Affordable Care Act 
and end the Medicaid program as we know it. The Graham-Cassidy 
legislation, which would fundamentally restructure our health 
care system, was introduced just last week, and yet it could 
pass next week using the partisan reconciliation vehicle. This 
is not regular order.
    I urge my Republican colleagues to drop this repeal 
immediately. This is not what Americans want, and it is an 
affront to the way that the Senate should work. When Senator 
McCain talked about the importance of regular order, he was 
referring to the type of process that you, Chairman Alexander 
and Ranking Member Murray, have gotten underway to address rate 
increases in the individual market. Please do not abandon these 
efforts, and I urge my colleagues to oppose the Graham-Cassidy 
legislation.
    Now, on to today's regular order. Mr. Muniz, LGBT students 
deserve to learn in an environment free of discrimination, and 
they deserve to be treated with dignity and respect. Do you 
agree?
    Mr. Muniz. Yes, Senator.
    Senator Franken. Well, Mr. Muniz, far too often, LGBT 
students, particularly transgender kids, endure harassment and 
discrimination. When that happens, those students are deprived 
of an equal education. Now, part of the reason that happens is 
that many schools don't understand what the law requires. In 
May of last year, the Obama administration issued comprehensive 
guidance on what Title IX means for transgender students. That 
guidance made crystal clear that under Title IX, students must 
allow transgender students to use the bathrooms and locker 
rooms that match their gender identity. In February, the Trump 
administration scrapped those guidelines.
    Mr. Muniz, back in June of last year, then candidate Trump 
tweeted, quote, ``Thank you to the LGBT community. I will fight 
for you.'' When he later accepted the Republican nomination, he 
said, quote, ``As your President, I will do everything in my 
power to protect our LGBTQ citizens from violence and 
oppression. Believe me.''
    Tell me, Mr. Muniz, do you think that rescinding the Title 
IX guidance is what LGBT children and their families expected 
when they heard the President promise to fight for them?
    Mr. Muniz. Senator, what I can say about that is that 
rescinding that guidance, I believe, from what I understand as 
a private citizen, was to give the new administration an 
opportunity to study the law and study those issues and, 
hopefully, address them in the way that they think is right. I 
will say that the Department has been clear that all students 
have a right to be free from sex discrimination in schools that 
receive Federal funds, and they've been equally clear that any 
student who feels that they've been subject to sex 
discrimination should submit their complaint and that it will 
be thoroughly reviewed to see whether, under any theory of sex 
discrimination, they've been wronged and, hopefully, get help 
from the Department.
    Senator Franken. I just want to make it clear that the 
rescinding of the guidance, while it sent a terrible message to 
LGBT students and their parents, the guidance didn't change the 
law, and it didn't change--take away students' rights. Even 
without the guidance and the model policies issued by the Obama 
administration, Title IX still protects transgender students, 
and all you have to do is ask the Seventh Circuit Court of 
Appeals.
    In May, the Seventh Circuit ruled in favor of a transgender 
boy named Ash Whitaker, whose school wouldn't let him use the 
boys' bathroom. The court ruled that the school's 
discriminatory bathroom policy violated Title IX and the 14th 
Amendment.
    I know I'm out of time, Mr. Chairman, but I hope to 
continue in a second round.
    I just want to say that students--LGBT students go to 
school afraid, and 30 percent of LGBT students report missing a 
day of school in the last month because of fear, and that going 
to school--it's hard to learn if you dread going to school. I 
want to raise this again in my next round.
    Thank you.
    Senator Isakson. [presiding]. Thank you, Senator Franken.
    Senator Hassan.

                      Statement of Senator Hassan

    Senator Hassan. Thank you, Senator Isakson, and thank you, 
Ranking Member Murray, for holding this hearing. I will add my 
two cents in to say that I hope very much that we can continue 
in this Committee to find our way forward on bipartisan 
solutions to stabilize our current health insurance market and 
that we should--and encourage my colleagues on the other side 
of the aisle to not bring forward the Graham-Cassidy bill which 
hasn't been through regular process and has the potential of 
greatly, greatly disrupting the lives of many, many granite 
staters and Americans who need healthcare.
    With that, now I will turn to our nominees. Congratulations 
on your nominations to all of you and thank you to your 
families as well. This is, in fact, a family affair, and we are 
very appreciative. To the children in the audience, you are 
doing much better than many adults do in this process.
    [Laughter.]
    Senator Hassan. Thank you very much for your poise and 
attention.
    I want to start, Mr. Muniz, with you, because one of the 
things that I've been concerned about is that you have a 
current client who is a large for-profit college company, 
career education corporation, which has a history of providing 
inaccurate job placement numbers to prospective students. When 
you worked for the State of Florida, you also helped to set up 
meetings between Attorney General Bondi and Bridgepoint 
Education, which is a large publicly traded for-profit college 
chain with a history of targeting and taking advantage and 
defrauding service members and veterans.
    While many other states were investigating Bridgepoint, as 
I understand it, the State of Florida decided not to. Can you 
help us understand why, when there was so much information 
coming out about Bridgepoint and other for-profit colleges, 
that the State of Florida decided not to investigate?
    Mr. Muniz. Senator, thank you for that question. During my 
time in the Florida AG's office, there were several 
investigations in that sector. I never was part of any 
conversations where Bridgepoint was mentioned as being a 
possible subject of investigation. I've read in the media that 
there weren't a large number of complaints against Bridgepoint 
in Florida. As you know, they operate throughout the country, 
and Florida looks at things mainly from a Florida perspective.
    I just want to be clear on this issue, because I know that 
it's important to the Committee. One of the obligations that 
the Department has is to protect student borrowers, to protect 
taxpayers, to make sure that laws and regulations holding 
schools accountable in this sector are enforced. I'm fully 
committed to helping my prospective client, if confirmed, to 
carry out that mission, and if I weren't committed to that 
aspect of the mission, I wouldn't be seeking this position.
    Senator Hassan. Well, I thank you for that reassurance. I 
will tell you that, given some of the Department's decisions 
such as pulling back on the gainful employment role, a lot of 
us are very concerned that the Department is refraining from 
oversight on the for-profit sector, even though there's 
extraordinary information to show that the for-profit sector 
has been taking advantage of students. I hope very much that if 
you are confirmed that you will take this to heart and that 
your past associations and representations of for-profit 
entities in this field won't cloud your judgment or present a 
conflict of interest.
    I also just wanted to ask you a question about forced 
arbitration. Forced arbitration clauses in contracts prevent 
students from having access to the courts when, for instance, 
Bridgepoint University has cheated them or lied to them. The 
use of forced arbitration is well known in the for-profit 
college sector.
    You were asked about this issue in your staff interview, 
specifically about whether you thought that forced arbitration 
agreements get in the way of groups of students obtaining 
relief from student debt. You responded, as I understand it--
the quote is ``I guess they can.'' I just want to clarify this 
for the record. In your 20 years of experience as an attorney, 
would you agree that forced arbitration typically limits relief 
to students?
    Mr. Muniz. Senator, I actually haven't had a lot of 
experience with arbitration, and I think, depending on the 
specific case, arbitration may or may not be beneficial. 
Sometimes arbitration can help someone get relief more quickly. 
Other times, maybe they might be in a better legal position 
without that.
    Senator Hassan. Of course, when students--and I see my time 
is up, so if I have a chance for a second round, we might 
pursue this. What I'd ask you to think about is this. When 
there are standard clauses, students don't have the option of 
negotiating their contracts with these entities one at a time, 
and it is denying people access to the courts, even though they 
find out that they have been defrauded or lied to in some cases 
and deserve compensation. There are a group of us that really 
believe forced arbitration clauses shouldn't be allowed in this 
type of contract, and I'd ask you to consider that, and if you 
are confirmed, I'd look forward to working with you on that.
    Thank you.
    Mr. Muniz. Thank you, Senator.
    Senator Isakson. Senator Murphy.

                      Statement of Senator Murphy

    Senator Murphy. Thank you very much, Mr. Chairman. I may 
submit questions to the record for this panel, but 
notwithstanding the fact that it's just you and I here, and 
Chairman Alexander is no longer present, I want to use my time 
to just raise similar concerns to others about the process 
going forward on health care reform.
    I worry that we're watching a Charlie Brown and Lucy move 
be perpetuated on the Democrats on this Committee. I took it on 
faith that this Committee was truly dedicated to a bipartisan 
Committee process that was real. I spent the last 2 weeks 
working hard to study up for our hearings with experts and 
Governors and insurance commissioners. I sat through those 
hearings. I had multiple discussions with the Chairman and 
other Members of this Committee about paths forward, only to 
receive news through the press that the intent of leadership 
may be to bring a repeal bill once again before the Senate that 
has not gone through this Committee, that has not gone through 
the Finance Committee, that has not received a hearing, that 
has not gone through a markup, and, incredibly, may come before 
the Senate without even receiving a CBO score.
    I am hopeful that we are going to reinvest in our 
bipartisan process here, because when I spent time back in my 
State over the course of August, I heard one thing loud and 
clear from Republicans, Democrats, and unaffiliated voters. 
They wanted us to stop the political games and come together 
and try to find a bipartisan compromise to keep what works in 
the Affordable Care Act and get rid of what doesn't work or fix 
what doesn't work, and we are very close to achieving that on 
this Committee.
    I am really hopeful that this was not a ruse, that this was 
not all a distraction to make sure that Democrats on this 
Committee who tend to spend the most time working on health 
care policy didn't use the last few weeks to study up on 
Graham-Cassidy, to get serious about talking about its danger 
to our constituents and instead got pulled in to a Committee 
process and a bipartisan legislative process that, in the end, 
may be simply used as cover and distraction to get a partisan 
bill passed through the U.S. Senate.
    I know there are a lot of Members of this Committee who 
care about the traditions and precedent of the Senate. If you 
care about the traditions and precedent of the Senate, then you 
can't support this process or this bill. It was bad enough that 
for the first 6 months of this year, this Committee was totally 
cut out of any discussion of the repeal bill that was being 
developed behind closed doors and ultimately moved to a vote 
before the Senate. I said multiple times here that I didn't 
really see the point of continuing to show up if this Committee 
wasn't going to ultimately weigh in on a reordering of the 
entire American health care system.
    This is even worse. At least, Republicans waited for a CBO 
score, waited to find out what the bill did before bringing it 
for a vote. What we're hearing is that if this bill comes 
before the Senate next week, not only will it blow up all of 
the good work that has been done on this Committee to try to 
find a bipartisan solution, but it will also be voted upon 
without any, any understanding of how much it costs, how many 
people it hurts, what it does to premium increases.
    I think we're at a point now where the Republican majority, 
if they walk away from this bipartisan process and move to a 
vote on the floor on a bill that no one understands, will have 
completely broken the U.S. Senate. It will be unfixable. It 
will be unfixable if we were all asked to be part of this 
bipartisan process, have the rug pulled out from under us, and 
a bill voted on that has no CBO score, reordering one-fifth of 
the American economy.
    Mr. Chairman, I don't have questions for the witnesses 
because I think this is a really dire moment for this country 
and for the future of the Senate. As a new member, as someone 
who hopes to be around the Senate for a long time, I don't know 
whether you can fix the Senate if this process that we are all 
asked to take part in breaks down and a partisan bill comes 
before the Senate next week. I hope that everyone on this 
Committee will do whatever is possible to stop that from 
happening.
    Thank you, Mr. Chairman.
    Senator Isakson. I note that there are no other Members 
present. Are any other members coming back other than Senator 
Alexander? Today or tomorrow or----
    [Laughter.]
    Senator Isakson. Today, now?
    Senator Murphy. Mr. Chairman, we have three Members who are 
on their way as we speak. Senator Warren----
    Senator Isakson. Out of respect for the comments you just 
made, I'm not about to shut the Committee down when somebody 
wants to have something to say.
    Senator Murphy. Thank you.
    Senator Isakson. I also don't want to just keep--oh, 
there's Ms. Warren.
    Would you like to be recognized?
    Senator Warren. I would in 1 minute.
    Senator Isakson. You're limited to five.
    [Laughter.]
    Senator Isakson. You can do whatever you want to during 
those five.
    Senator Warren.
    Senator Warren. Thank you, Mr. Chairman.

                      Statement of Senator Warren

    You know, this Committee has had bipartisan discussions 
over how to stabilize the health insurance markets in this 
country, and I applaud the work of Senator Alexander and 
Senator Murray as they've tried to get us on the right path 
here, and I strongly oppose turning back in the wrong direction 
by attacking the health insurance coverage of millions of 
Americans and gutting the Medicaid program. I hope we stay on 
the path we have set out in this Committee.
    Now, what I want to ask about today is a really important 
employment issue. Two weeks ago, Equifax, one of the big three 
consumer credit reporting agencies, announced that they had 
been hacked, jeopardizing personal information for about 143 
million Americans. Americans are outraged by this hack, and 
let's face it, they have every right to be.
    There is a lot at stake here. Identity theft can follow you 
literally for the rest of your life, particularly the theft of 
your social security number and your birth date. It gets worse. 
Your credit history can affect your ability to get a loan, to 
buy a car, and even whether or not you can get a new job. 
According to a survey by the Society for Human Resource 
Management, about 50 percent of employers in America check the 
credit histories of prospective hires.
    Now, Ms. Dhillon, you are President Trump's nominee to 
serve as Chair of the Equal Employment Opportunity Commission, 
the independent Federal agency that enforces civil rights laws 
prohibiting workplace discrimination. Do you think employees 
should compete on the merits of the job, or on whether or not 
they already have enough money to pay their bills?
    Ms. Dhillon. Well, thank you, Senator Warren, for your 
question and also for your time last week--I appreciated it--
when we discussed this issue.
    Senator Warren. Yes. No surprises.
    Ms. Dhillon. As we discussed, currently, the FTC has 
jurisdiction for enforcing FCRA, and with respect to the 
current structure of employment law, really, I think the 
remedies are limited to whether or not, if an employer decides 
to have credit checks as part of its hiring process, it does so 
in a nondiscriminatory fashion. The issues that you raised, I 
think, are very interesting issues, and I would like to look at 
the data. I think we agreed we're both data geeks. I would look 
forward to working with you on this issue, because I think that 
the issue raises an important one.
    Senator Warren. If we can, let's talk just a little bit 
about the data, because this is a good chance to get it out 
there and have people think about this. You know, there are a 
number of problems with employers using credit histories in 
their decisions for hiring and promoting people. First, neither 
job performance nor worker productivity is correlated with 
credit history, and, second, credit histories are riddled with 
mistakes. The recent Equifax breach will make those mistakes 
even more likely.
    According to a 2012 study by the Federal Trade Commission, 
more than a quarter of Americans sampled had an error in their 
credit report already, and these errors are really hard to 
correct. I don't know if you've ever tried to correct one, but 
they are a bear to try to fix. A followup study by the FTC 
found that a majority of their sample who had reported an error 
on one of their credit reports still believed that some part of 
their credit report was inaccurate.
    There's one more problem, though, with using credit 
histories to screen job applicants. Credit reports may look 
objective, but they have a disproportionate impact on people of 
color. For example, blacks are more likely than their white 
counterparts to have no credit history at all, and those who do 
have a credit history, on average, have lower credit scores 
than whites.
    There's even evidence in a new working paper from 
researchers at the University of Wisconsin and Harvard 
University showing that employers penalize black applicants 
with bad credit more than identical white applicants with bad 
credit. The unemployment rate already for black Americans is 
twice that of white Americans, and we should be finding ways to 
close the gap, not to help the gap get wider.
    Ms. Dhillon, if you are confirmed to the EEOC, you'll have 
plenty of ability to bring claims against employers whose use 
of this policy is having a disparate impact on groups protected 
by Title VII of the Civil Rights Act of 1964, including workers 
of color. I just want to know if you will commit to doing that.
    Ms. Dhillon. Well, Senator, as we discussed, if I were 
confirmed, I would want to work with the career professional 
staff. I would want to review the data, the data that you 
cited, whatever data they may already have collected that I am 
not privy to, to completely understand the issue, and I look 
forward to working with you to address the issue.
    Senator Warren. Okay. I take it that what that answer means 
is you'll look at the data. If the data back up these claims, 
then you're ready to move.
    Ms. Dhillon. Then we're ready to work on solutions, 
absolutely.
    Senator Warren. Thank you very much.
    You know, the magnitude of this Equifax problem is just 
almost impossible to comprehend. One small thing that Congress 
can do to make life a little easier for people who are affected 
by this hack is to pass a bill--I've got a bill going forward 
now--to say that employers cannot use this information in a 
decision about who to hire and who not to hire.
    Thank you, Mr. Chairman. I appreciate the time.
    Senator Isakson. Thank you, Senator Warren.
    Senator Baldwin.

                      Statement of Senator Baldwin

    Senator Baldwin. Thank you.
    I wanted to follow-up with our EEOC nominees on an issue 
that Ranking Member Murray raised about Title VII. I strongly 
support the EEOC's decision to make it clear that Title VII's 
sex discrimination provisions are properly understood to 
prohibit discrimination based on both gender identity and 
sexual orientation. I applaud the Commission for its advocacy 
on behalf of LGBTQ workers.
    For example, in July 2017, the agency brought a suit 
against a Georgetown Restaurant on behalf of Alejandro 
Hernandez. He is a young gay man who was subjected to 
harassment because of his sexual orientation. That case 
resulted in a $50,000 settlement and changes to the employer's 
policies and training to address discrimination and harassment. 
In May 2016, the Commission secured a $140,000 settlement and 
policy changes on behalf of a transgender woman who was blocked 
from doing her job as an IT contractor at a Minnesota college 
when she announced her intent to transition from male to 
female.
    I wanted to followup on Senator Murray's question, because 
I want to be clear. I did hear each of you, Dr. Gade and Ms. 
Dhillon, speak to your personal opposition to discrimination on 
the basis of sexual orientation or gender identity.
    Ms. Dhillon, I heard you talk about the agencies that have 
taken different positions, about careful review and 
consultation with senior career staff at the Commission--is 
what I jotted down in terms of the notes, what I understood you 
to say. I guess I want some greater clarity here. No. 1, will 
you commit to supporting the EEOC bringing cases on behalf of 
workers like the two that I mentioned who face discrimination 
because thy are gay, lesbian, bisexual, or transgender? Yes or 
no?
    Ms. Dhillon. Well, thank you for your question, Senator. As 
I indicated, I am personally opposed to that form of 
discrimination. It's unrelated to the ability of someone to be 
able to perform their job duties. The challenge that we have 
right now, though, is that we have two agencies of government 
who have taken different interpretations of the same statutory 
language. In addition, we have courts----
    Senator Baldwin. The Commission has taken one, and you're 
joining the Commission. Would you pursue the understanding and 
the finding that the Commission has made previously?
    Ms. Dhillon. The challenge, Senator, is that it actually 
says----
    Senator Baldwin. Is that a no?
    Ms. Dhillon. No, it's not a no. The challenges that--and I 
think that this is something that I am focused on--is that 
while the EEOC has jurisdiction over the private workforce and 
state and local government and Federal Government, the 
Department of Justice actually enforces Title VII with respect 
to state and local government employees. I think it's critical 
that the Federal Government ultimately speak with one voice on 
how this statute is appropriately interpreted and whether 
that's a legislative solution, which would be----
    Senator Baldwin. Let me--I'm going to cut you off, because 
I want to just point out two things from your testimony. One 
thing you said was that an employee's decision to bring a 
charge can, in many instances, be a courageous act, but an act 
that can also be stressful for the individual and his or her 
family. You go on to comment on justice delayed is justice 
denied sort of thoughts about the backlog and how swiftness is 
important.
    I want to underscore both of those points. I only practiced 
law for a very brief time many years ago. When I represented 
individuals who had been discriminated against in the workforce 
on the basis of sexual orientation, bringing a complaint in and 
of itself was definitely a courageous act, potentially 
subjecting them to additional discrimination.
    I agree with the point that you made in your testimony 
about the delay, and it just strikes me that what you're saying 
in terms of waiting to resolve differences is going to impact 
both of those in the opposite way than you want.
    Thank you, Mr. Chairman.
    The Chairman [presiding]: Thank you, Senator Baldwin.
    We'll now begin a second round of questions unless some 
Senator arrives who has not had a first round. I'll begin.
    Ms. Dhillon, for 3 years in a row now, the appropriations 
bill which funds the EEOC has included report language 
directing greater transparency for the guidance documents that 
EEOC releases, that those guidances be circulated for public 
input at least 6 months before adoption. Do you think an EEOC 
guidance document will be a better product if it goes through a 
public comment period? If you're confirmed, will you set a 
permanent policy requiring this type of transparency for new 
guidance documents?
    Ms. Dhillon. Thank you, Senator Alexander. Yes, I believe 
that guidance can absolutely be improved with greater input, 
and if I'm confirmed, I would commit to working to solicit the 
views of all stakeholders and to engage in a vigorous notice 
and comment process so that the final guidance or regulations 
that are issued by the Commission reflect the best thinking and 
the input of all stakeholders.
    The Chairman. Thank you, Ms. Dhillon. Ms. Dhillon, in 2016, 
President Obama's Office of Management and Budget approved 
revisions to what's called the EEO-1 that would have required 
employers to submit not just demographic information but also 
W-2 wages and hours worked for all employees in a variety of 
categories. It increased by 20 times the number of pieces of 
information, from 180 to 3,660, for each of the 61,000 private 
employers on their 63 million employees.
    In August 2017, OMB issued a stay of the effectiveness of 
EEO-1. I was one of those Senators who was very concerned about 
the increased burden on employers that seemed to me to be 
completely unnecessary by this action. What would you do to 
make sure that any future EEO-1 revisions are more reasonable?
    Ms. Dhillon. Well, Senator, certainly the focus of the EEOC 
on enforcement of the equal pay laws is an appropriate priority 
and an important priority of the agency. If I were confirmed, I 
would want to work with the career staff to understand what 
additional data the agency needs to improve its enforcement of 
the Nation's equal pay laws.
    I think, going back to your earlier question about the 
importance of input and the importance of the notice and 
comment process, that with respect to the EEO-1, in particular, 
it would have benefited from a more vigorous process. There 
were recommendations that were made----
    The Chairman. I only have a little time. Do you agree that 
was an unnecessarily burdensome order?
    Ms. Dhillon. I think it was unfortunate that the agency did 
not incorporate the input of a number of stakeholders who had 
suggested revisions to the guidance that I think could have--or 
the regulation that could have improved it.
    The Chairman. Let me go to Mr. Muniz.
    Mr. Muniz, Senator Murray asked you about congressional 
intent. You know, we debated a lot of issues here and worked 
them out when we fixed No Child Left Behind, which is what 
we're elected to do, and wrote the language carefully, 
therefore. It's the result of compromise here on the Committee. 
We knew what we were doing when we wrote the law. We might have 
been wrong. We might have been wrong, but we were elected to 
write it.
    Now, we did the extraordinary thing, too, of placing in the 
law some prohibitions, some things the Secretary may not do, 
and that concerned me with the previous administration. Yet 
early in this administration--I'll give you an example. The 
U.S. Department of Education under this administration said the 
Delaware Department of Education must revise its plan to 
identify and describe long-term goals that are ambitious for 
all students and for each subgroup of students.
    Now, the law says that each state shall establish ambitious 
state-designed goals, and then the law says the Secretary may 
not do a number of things: add new requirements, add new 
criteria, prescribe long-term goals, promulgate a definition of 
any term used in this part. Now, Secretary DeVos then clarified 
what was meant there.
    Do you agree that when Congress writes plain English words 
like ambitious state-designed goals and then prohibits the 
Secretary from defining it, that the Secretary should follow 
that?
    Mr. Muniz. Yes, Senator. Thanks for that question, and I 
can assure you that if I'm confirmed, I'll do my best to advise 
the Secretary and the other clients at the Department as to 
what the law requires and that I'll be equally scrupulous about 
advising about what the Department may do and, in cases where 
Congress has been clear, about what the Department or the 
Secretary may not do. I will also so advise the Secretary.
    The Chairman. Thank you, Mr. Muniz.
    Senator Kaine.

                       Statement of Senator Kaine

    Senator Kaine. Thank you, Mr. Chairman.
    Thank you to the witnesses and congratulations on your 
nomination to these very important positions. I want to ask a 
question to both of the EEOC nominees about gender identity and 
sex discrimination. You've had a number of opportunities in 
private discussions and during the hearing to describe whether 
you'll support or oppose any change to the EEOC's approach to 
sexual orientation and gender identity discrimination under 
Title VII. The EEOC has long held that that is a violation of 
law.
    From each of the EEOC nominees I'd love to know whether you 
personally believe that this type of discrimination, that is, 
employment discrimination based upon sexual orientation or 
gender identity, is wrong, and if you could just answer that 
with a simple yes or no, that would be great.
    Ms. Dhillon. Yes, I believe it's wrong.
    Dr. Gade. Yes, Senator.
    Senator Kaine. Given those answers, which I appreciate, if 
someone proposed to scale back the EEOC's approach to this type 
of discrimination, would you support or oppose that?
    Ms. Dhillon. Well, Senator, again, this goes back to what 
the statutory language actually requires, and the challenge 
that we face currently is that the EEOC has interpreted the 
statute in one way, and the Department of Justice has 
interpreted the statute another way in the very same case, 
which is currently pending before the Second Circuit. There is 
a split in the circuits. I think the courts are wrestling with 
this statutory interpretation issue as well.
    The fact that both the EEOC and the DOJ have jurisdiction 
over enforcing Title VII, I think, also mandates that we come 
to a solution to this. This has real human implications for the 
people who are impacted and for their families. It's easy to 
give a quick answer, but the issue is too serious to give an 
easy quick answer.
    You know, ideally, a legislative solution could resolve 
this. I know that there have been bills that have been 
introduced and that people have worked hard on that. I also 
think that, given the situation that we face with the split in 
the circuits as well as the fact that there's now various 
different state laws, it makes it more likely that the Supreme 
Court will ultimately take up this issue and----
    Senator Kaine. Assuming there continues to be some 
ambiguity in the circuits, would it be your intent to continue 
to follow the current EEOC practice and insist that 
discrimination on the grounds of sexual orientation or gender 
identity violates Title VII until there is clear legal 
precedent suggesting that the EEOC position is wrong?
    Ms. Dhillon. Well, I think the challenge here is that there 
are conflicting decisions out of different circuit courts----
    Senator Kaine. Right.
    Ms. Dhillon [continuing]. and the EEOC, though, is bound by 
those decisions because those are Federal appellate courts. The 
agency is faced with really interpreting the same statute in 
different ways, depending on geography.
    Senator Kaine. Well, let me ask you this. The EEOC has a 
provision, and in any jurisdiction where a circuit court has 
followed or been consistent with the EEOC provision, you're 
going to continue to enforce the EEOC doctrine, correct, in a 
circuit where the circuit court----
    Ms. Dhillon. Oh, yes.
    Senator Kaine. In any circuit where there hasn't been a 
decision, you're not going to backtrack off EEOC's 
nondiscrimination provision, are you?
    Ms. Dhillon. That is where I would like to consult with the 
career professional staff because they have both access to 
information I don't have, but also experience in what is a very 
unusual situation where the agency is being called upon to 
enforce the same law in different ways in different parts of 
the country.
    Senator Kaine. When you mentioned the human--I'm glad you 
mentioned that this is an important issue about human cost. I 
mean, discrimination is one of the worst things that can happen 
to somebody, being turned away from a position or a promotion 
because of sort of an organic thing about who you are--being 
turned away for that reason. There is a significant human cost.
    Ms. Dhillon. Absolutely, because it's unrelated to their 
ability to perform the work.
    Senator Kaine. Right. The EEOC has a current policy. It is 
subject to some legal challenge, but the current policy is to 
treat gender identity and sexual orientation discrimination as 
in violation of Title VII. I recognize that in circuits where 
the circuit court has held otherwise, that can create a 
challenge. In circuits where the circuit has decided in accord 
with the Title VII policy, or in circuits where the circuit has 
not countered the Title VII policy, I would love to hear you 
commit that you would follow the Title VII policy, and perhaps 
I would ask of the other witness, Dr. Gade, to respond.
    Dr. Gade. Yes, sir. I'm committed to enforcing the law as 
it's passed by the Congress and interpreted by the courts, and 
right now, that means different things in different parts of 
the country, and it means different things at different levels 
of government, as we discussed.
    Senator Kaine. Mr. Chair, if I could just--so you will 
enforce current law of the EEOC about this topic in a circuit 
that has upheld the EEOC's interpretation, and you will also 
enforce it in any circuit that has not countered the EEOC 
interpretation. Is that your commitment to me today?
    Dr. Gade. Sir, as far as I know, there is no move afoot in 
the EEOC to reinterpret those guidelines, but I'm committed 
to----
    Senator Kaine. You would not support such a move unless 
there is clear legal----
    Dr. Gade. Unless there are clear legal reasons for such a 
move, I am not going to drive that process myself.
    Senator Kaine. Thank you, Mr. Chair.
    The Chairman. Thank you, Senator Kaine.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    Mr. Muniz, while you were a top aid to Attorney General Pam 
Bondi, were you aware of student complaints against Trump 
University?
    Mr. Muniz. Senator, I became aware of the existence of 
Trump University when our office got a press inquiry about 
that.
    Senator Franken. There are emails that show that you were 
included in discussions about student complaints alleging fraud 
with Trump's real estate seminars. Were you aware of complaints 
from Floridians who had taken Trump University seminars?
    Mr. Muniz. Senator, after we got the media call that I just 
referred to, I and others at the office tried to find out what 
Trump University was and what, if any, contact there had been 
regarding that with our office. In the course of that due 
diligence, I learned that there had been one complaint in 2011, 
and I believe after the initial media report, a couple of more 
complaints may have come into the office.
    Senator Franken. Had you received emails before you got the 
media--you heard about the complaints in the media?
    Mr. Muniz. I had never gotten any emails or been involved 
in any discussion about Trump University before that.
    Senator Franken. Before that, but then, subsequently, you 
did.
    Mr. Muniz. Once we got the media inquiry, my role was 
largely to find out how the office would handle that and to 
make sure that we were getting the facts right and 
communicating accurate information to people who were 
interested in learning about that.
    Senator Franken. There are emails that show you were 
included in discussions about these complaints, and did you 
approve the decision as the Attorney General's chief advisor 
not to investigate Trump University?
    Mr. Muniz. Well, once I learned about the issue and I 
learned about how the career staff believed it should be 
handled, I agreed with that then under the facts and 
circumstances that I knew, and sitting here today, I still 
agree with that.
    Senator Franken. Why?
    Mr. Muniz. Well, I think for me, the two main factors were 
the small number of complaints, given--you know, we're an 
office that focuses on consumer protection across the board. A 
conservative estimate of the complaints that come in is 
something like 70,000 a year. In this case, there were a couple 
of complaints. There was another----
    Senator Franken. There were two complaints? Is that your 
testimony?
    Mr. Muniz. Senator, my understanding is when we first 
learned about this, there was one complaint that had come in 
2011 that related to Trump University. There was another entity 
with a similar name that was not Trump University and, previous 
to Attorney General Bondi taking office, there were complaints 
involving that. When it came to the question of how to handle 
the issue of Trump University, the number of complaints--my 
understanding is that there was the one in 2011 and a couple 
of--after the media reports, and to complete my answer----
    Senator Franken. Now, you said there were a couple. This is 
the Orlando Sentinel. Well, let me see--Trump University and a 
Florida-based Trump Institute had stopped offering classes by 
the time Bondi took office in 2011. By then, more than 20 
consumer complaints had been filed by former students who said 
they were swindled. Is it still your testimony that there were 
only two?
    Mr. Muniz. Well, as the article there points out--and, 
again, this is to the best of my recollection and my 
understanding of this--Trump Institute was a completely 
different entity that had a completely different business 
relationship. The question that we got was about Trump 
University, and the question----
    Senator Franken. What is it Trump Institute did that was 
different than Trump University?
    Mr. Muniz. Well, if I could finish, the question that came 
in was about a lawsuit that another State was filing, and the 
question that was posed to us was essentially sort of asking 
for a comment on that from the Florida Attorney General's 
Office. The focus of our due diligence in collecting 
information was to find out about this New York lawsuit and 
what, if anything, the office knew about Trump University, 
which was a different entity from Trump Institute.
    Then, again, I just want to put things in context. Seventy 
thousand complaints a year. The career servants in the Florida 
Attorney General's Office have to make a lot of decisions 
about----
    Senator Franken. Okay. I'm now out of time. Would the 
chairman let me----
    The Chairman. Well, let him finish the answer before you 
ask another question, if you please.
    Senator Franken. OK.
    Mr. Muniz. Well, I don't want to minimize any complaints 
that the office might get, but I also want to put--if you're 
asking about whatever the number of complaints were that were 
at issue with Trump University or even Trump Institute, I 
believe that those need to be viewed in context of the overall 
work in front of the office.
    Senator Franken. My question was do you know what the 
difference between Trump Institute and Trump University was?
    Mr. Muniz. Senator, I actually don't know what services 
Trump Institute offered.
    Senator Franken. Is it possible that they were essentially 
the same entity?
    Mr. Muniz. Senator, my understanding of this is that I 
don't believe they were the same entity. I believe that it 
was----
    Senator Franken. Your understanding is that you--so your 
understanding is that you don't believe that.
    Mr. Muniz. I do not believe that they were the same entity.
    Senator Franken. You don't know for sure.
    Mr. Muniz. When we were trying to answer these questions, 
my understanding--what I recall is that they were completely 
separate entities and had been handled--prior to Attorney 
General Bondi taking office in 2011, the office had interaction 
with Trump Institute. I don't know the exact details of that. 
What I can say sitting here today is that to the best of my 
understanding, they were two completely separate businesses, 
separate entities.
    Senator Franken. Thank you.
    The Chairman. Thank you, Senator Franken.
    Senator Warren.
    Senator Warren. Thank you, Mr. Chairman.
    Now, Mr. Muniz, at this point, Betsy DeVos isn't really 
even trying to hide the fact that she's giving her friends at 
student loan companies and--the for-profit student loan 
companies and colleges pretty much anything on their wish list. 
That's bad enough. I have an even bigger problem when she 
breaks the law to do it.
    For example, 19 State Attorneys General led by 
Massachusetts Attorney General Maura Healey have sued Betsy 
DeVos for illegally delaying rules to help students who have 
been defrauded by for-profit colleges.
    Mr. Chairman, I'd like to enter this July 2017 complaint 
filed by 19 State Attorneys General in Federal court against 
Betsy DeVos into the hearing record, if I could.
    The Chairman. It will be.
    Senator Warren. Thank you. I'm just trying to understand 
what, in your record, should give us confidence that, if you're 
confirmed, you would help reverse the problem at the Department 
of Education or at least make sure that Secretary DeVos is 
following the law. Can you give me just one example from when 
you were a top aid to the Florida Attorney General's Office 
when you initiated a new case to stand up for students who were 
being cheated by for-profit colleges?
    Mr. Muniz. Senator, thanks for that question. When I worked 
for the Florida Attorney General, I was the Deputy Attorney 
General and Chief of Staff.
    Senator Warren. Yes, I know.
    Mr. Muniz. As you may know, my role wasn't to initiate 
particular cases----
    Senator Warren. Is the answer none?
    Mr. Muniz. The answer is that, in general, not just, 
Senator, in the area of these companies--but what I was going 
to say is that we have a lot of respect for the career 
attorneys----
    Senator Warren. Is the answer none?
    Mr. Muniz. We have a lot of respect for the career----
    The Chairman. Let the witness answer the question, please.
    Senator Warren. All right. I'm going to run out of time 
here, Mr. Chairman. This is not----
    The Chairman. I'm going to insist that the witness be 
allowed to answer the question.
    Senator Warren. Fair enough.
    The Chairman. You can have additional time if you'd like.
    Mr. Muniz. Senator, I'll be brief. We had a lot of respect 
for the career attorneys in our office. Consumer protection is 
something that is largely driven by our career employees, and I 
can assure you that when I was there, the cases that you're 
asking about in this industry weren't--I did not handle those 
or oversee those or have any involvement with those that was 
any different from the way that I would have treated anything 
else that we worked on in that office.
    Senator Warren. All right. I'll just point out this is not 
a new question. I asked you this a week ago when you were in my 
office. I asked you specifically, ``Do you have one example 
that you can just give me where you stood up and you said, 
``You know, here's some evidence that came to us, and we're 
going to use that evidence to go after one of the for-profit 
colleges.'' I asked you for the example and made it pretty 
clear that I was going to ask you here again in public. What 
I'm hearing is no, you don't have any.
    You know, as Senator Franken pointed out, we know that once 
your boss got a $25,000 political donation from Donald Trump, 
you didn't join the other states that were suing Trump 
University for cheating students, and you didn't join the other 
states in going after Bridgepoint University for cheating 
students after that for-profit college set up a private meeting 
with your boss. I think this is important, because Betsy DeVos 
has filled the Education Department with for-profit college 
hacks, including a former Bridgepoint executive and another 
administrator of for-profit colleges who is now in charge of 
policing sham colleges.
    It looks like, from the point of view of the Department of 
Education, that these for-profit colleges can just go right on 
cheating students and so can the student loan companies. Betsy 
DeVos recently terminated the Department's partnership with the 
Consumer Financial Protection Bureau. I want to understand if 
you're going to help shield these companies from 
accountability, or if you'll at least get out of the way when 
other agencies are trying to take steps to protect students.
    Mr. Muniz, do you believe that when student loan giant, 
Navient, illegally overcharged our military troops on their 
student loans, the Department of Justice had the legal 
authority to enforce the Service Member Civil Relief Act to 
fine them in 2014?
    Mr. Muniz. Senator, I'm not familiar with that case.
    Senator Warren. Do you believe that when the Department of 
Education debt collector was caught hounding borrowers about 
debts that weren't even theirs, the Federal Trade Commission 
had the legal authority to enforce the Fair Debt Collection 
Practices Act and fine them?
    Mr. Muniz. Senator, I'm not familiar with that case. As we 
discussed when we met privately, I fully respect the authority 
of any other entity, whether it's another Federal agency or 
whether it's a State Attorney General, to exercise whatever 
authority they have under their power----
    Senator Warren. You'll get out of the way? You're making a 
commitment to get out of the way so that those agencies can do 
that, even if that's contrary to what your boss has said?
    Mr. Muniz. Senator, if I'm confirmed, my focus is going to 
be to advise the Secretary on what the Department of Education 
can and can't do. Obviously, part of that may sometimes involve 
advising about jurisdictional issues between----
    Senator Warren. Let me ask you one more jurisdictional 
issue. I'm trying to keep my time short. I don't want to cut 
him off----
    The Chairman. Go ahead.
    Senator Warren. When Navient railroaded borrowers into 
repayment options that cost students more money but boosted 
Navient's profits, do you believe the CFPB had legal authority 
to enforce Dodd-Frank and the Fair Credit Reporting Act to go 
after them?
    Mr. Muniz. Senator, I don't have a view on other agencies 
or what their authority is.
    Senator Warren. Look, I'll just quit on this, because this 
is really frustrating. The Department of Education under Betsy 
DeVos has now said that she's in the way of these other 
agencies trying to enforce legal rules to help students, rules 
over which I believe they have jurisdiction. This has been all 
over the news. You've been nominated to be the lead counsel 
here, and the idea that you haven't even looked into the 
question of whether these three other agencies, the Department 
of Justice, the FTC, and the CFPB, do, in fact, in cases that 
have actually come up in very recent history, have legal 
jurisdiction to go forward.
    I think it's a fair question to ask you. Do you think they 
have jurisdiction? If you don't have an opinion on that, I'm 
sorry, but you just sound like a guy who's going to say, 
``Whatever Betsy DeVos wants me to say, I promise I'll sit down 
and do that.''
    I appreciate the extra time, Mr. Chairman.
    The Chairman. Thank you, Senator Warren.
    I want to thank Ms. Dhillon, Dr. Gade, Mr. Muniz for 
coming, and for their family Members, welcome.
    I want to ask unanimous consent to introduce five letters 
of support for Dr. Gade and two letters of support for Janet 
Dhillon into the record.
    The Chairman. If Senators wish to ask additional questions 
of the nominees, those questions are due by 5 p.m. Thursday, 
September 21st. For all other matters, the hearing record will 
remain open for 10 days. Members may submit additional 
information for the record within that time. We will meet next 
week to consider these nominees.
    Thank you for being here. The Committee will stand 
adjourned.
    [Additional material follows:]

                          ADDITIONAL MATERIAL

                     UNITED STATES DISTRICT COURT 
                      SOUTHERN DISTRICT OF FLORIDA

                   Case No. 12-Civ-21431-COOKE/TORRES

    UNITED STATES OF AMERICA, et al.,

                Plaintiffs,

    vs.

    FASTTRAIN II CORP., d/b/a FASTTRAIN COLLEGE,
    an administratively dissolved for profit
    Florida corporation and ALEJANDRO
    AMOR, an individual,

                Defendants.

    --------------------------------------/

             OMNIBUS ORDER ON MOTIONS FOR SUMMARY JUDGMENT

    This is an action under the Federal False Claims Act, 31 U.S.C. 
Sec. Sec. 379-3733 (``FCA''). Plaintiff, the United States of America, 
alleges Defendants FastTrain II Corp., d/b/a FastTrain College 
(``FastTrain'') and its President, Chief Executive Officer and co-
owner, Alejandro Amor,\1\ knowingly presented, or caused to be 
presented, false statements and claims to the United States and the 
United States Department of Education (``DOE''). Plaintiff seeks treble 
damages and civil penalties.
---------------------------------------------------------------------------
    \1\ On October 26, 2016, I granted Amor's leave to proceed pro se 
in this action. (ECF No. 103). With respect to FastTrain, however, I 
granted Plaintiff's Motion for Default Judgment (ECF No. 173) because 
after FastTrain's counsel withdrew, it failed timely to obtain new 
counsel. See Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1386 (11th Cir. 
1985).
---------------------------------------------------------------------------
    I have jurisdiction under 28 U.S.C. Sec. 1331 and 31 U.S.C. 
Sec. 3732(a).
    Pending are: (1) the United States' Motion for Summary Judgment 
(ECF No. 131); and (2) Amor's Cross-Motion for Summary Judgment (ECF 
No. 141).\2\ For the reasons that follow, I grant Plaintiff's Motion 
and deny Defendant's Motion.
---------------------------------------------------------------------------
    \2\ Amor's September 22, 2016 Cross-Motion for Summary Judgment was 
untimely, as dispositive motions were due by August 26, 2016. 
Nonetheless, in the interest of bringing this tortuous litigation to a 
long-overdue final resolution, I address Amor's arguments herein.
---------------------------------------------------------------------------

                             I. BACKGROUND

    This action arises from violations of the FCA and common law by 
FastTrain and its President, Chief Executive Officer, and co-owner 
Amor. From at least January 2010 through June 2012, when FastTrain 
closed, FastTrain and Amor knowingly presented, or caused to be 
presented, false claims and statements to the DOE and concealed 
material information in order to participate in the Federal student aid 
programs authorized under Title IV of the Higher Education Act of 1965 
(``HEA''), as amended, 20 U.S.C. Sec. Sec. 1070 et seq. (``Title IV, 
HEA Programs'').
    At Amor's direction, FastTrain knowingly submitted and/or caused to 
be submitted false information relating to the eligibility of students 
to receive Title IV, HEA Programs funds--through the Federal Pell Grant 
Program (Pell Grant''), the--Federal Family Educational Loan Program 
(``FFEL''), the Federal Direct Loan Program (``FDL'') and the Campus 
Based Programs--by providing false documentation that certain students 
had a high school diploma or its recognized equivalent when in fact 
they did not have such credentials. Also at Amor's direction, FastTrain 
admissions employees instructed and counseled ineligible prospective 
students to provide false high school completion attestations and 
further coached them to lie on their Free Application for Federal 
Student Aid (``FAFSA''), the document that students file to obtain 
Title IV, HEA funds. As a result of Amor's fraudulent scheme and false 
representations of Title IV eligibility, FastTrain received millions of 
dollars of Title IV financial aid that it otherwise would not have 
received.
    After a twenty-three day trial in United States of America v. 
Alejandro Amor, Case No. 1:14-cr-20750-JAL(s)-1 (S.D. Fla.) (``Amor 
Criminal Proceeding''), a jury convicted Amor of one count of 
conspiracy to steal Government funds, in violation of Title 18, United 
States Code, Section 371, and 12 counts of theft of Government funds, 
in violation of Title 18, United States Code, Section 641.\3\ The 
United States now seeks to recover treble damages and civil penalties 
under the FCA for Amor's illegal acts.
---------------------------------------------------------------------------
    \3\ Amor Criminal Proceeding, ECF Nos. 393, 489.
---------------------------------------------------------------------------

                         II. STANDARD OF REVIEW

    Summary judgment ``shall be granted if the pleadings, depositions, 
answers to interrogatories, and admissions on file, together with the 
affidavits, if any, show that there is no genuine issue as to any 
material fact and that the moving party is entitled to a judgment as a 
matter of law.'' Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 
1997) (quoting Fed. R. Civ. P. 56(c)) (internal quotations omitted); 
Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1358 
(11th Cir. 1999). Thus, the entry of summary judgment is appropriate 
``against a party who fails to make a showing sufficient to establish 
the existence of an element essential to that party's case, and on 
which that party will bear the burden of proof at trial.'' Celotex 
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
    ``The moving party bears the initial burden to show the district 
court, by reference to materials on file, that there are no genuine 
issues of material fact that should be decided at trial.''Clark v. 
Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). ``Only when 
that burden has been met does the burden shift to the non-moving party 
to demonstrate that there is indeed a material issue of fact that 
precludes summary judgment.'' Id.
    Rule 56 ``requires the non-moving party to go beyond the pleadings 
and by her own affidavits, or by the `depositions, answers to 
interrogatories, and admissions on file,' designate `specific facts 
showing that there is a genuine issue for trial.'' Celotex, 477 U.S. at 
324. Thus, the nonmoving party ``may not rest upon the mere allegations 
or denials of his pleadings, but must set forth specific facts showing 
that there is a genuine issue for trial.'' Anderson v. Liberty Lobby, 
Inc., 477 U.S. 242, 248 (1986) (internal quotation marks omitted).
    ``A factual dispute is genuine if the evidence is such that a 
reasonable jury could return a verdict for the non-moving party.'' 
Damon, 196 F.3d at 1358. ``A mere `scintilla' of evidence supporting 
the opposing party's position will not suffice; there must be enough of 
a showing that the jury could reasonably find for that party.'' Abbes 
v. Embraer Servs., Inc., 195 F. App'x 898, 899-900 (11th Cir. 2006) 
(quoting Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)).
    When deciding whether summary judgment is appropriate, ``the 
evidence, and all inferences drawn from the facts, must be viewed in 
the light most favorable to the non-moving party.'' Bush v. Houston 
County Commission, 414 F. App'x 264, 266 (11th Cir. 2011).

                       III. THE FALSE CLAIMS ACT

    The FCA provides that:
          (1) [A]ny person who--
                  (A) knowingly presents, or causes to be presented, a 
                false or fraudulent claim for payment or approval; [or]
                  (B) knowingly makes, uses, or causes to be made or 
                used, a false record or statement material to a false 
                or fraudulent claim;

                                 . . .

        is liable to the U.S. Government for a civil penalty of not 
        less than $[5,500] and not more than $[11,000], as adjusted by 
        the Federal Civil Penalties Inflation Adjustment Act of 1990 
        (28 U.S.C. 2461 note; Public Law 104-41), plus 3 times the 
        amount of damages which the Government sustains because of the 
        act of that person.
31 U.S.C. Sec. 3729(a)(1)(A)-(B); see 28 C.F.R. Sec. 85.3(a)(9) 
(adjusting penalties for inflation).
        As used in the FCA, a ``claim''
                  (A) means any request or demand, whether under a 
                contract or otherwise, for money or property and 
                whether or not the United States has title to the money 
                or property, that--
                          (i) is presented to an officer, employee, or 
                        agent of the United States. . .
31 U.S.C. Sec. 3729(b)(2), as amended.
    While Congress did not define what makes a claim ``false'' or 
``fraudulent,'' the ``phrase `false or fraudulent claim' in the [FCA] 
should be construed broadly.'' United States ex rel. Sanchez v. 
Abuabara, 2012 WL 254764, at *6 (S.D. Fla. 2012) (quoting Harrison v. 
Westinghouse Savannah River Co., 176 F.3d 776, 788 (4th Cir. 1999); see 
S. Rep. No. 99-345, at 9 (1986). The FCA does not require specific 
intent to defraud, only knowledge of the false information or 
deliberate ignorance or reckless disregard of its falsity. 31 U.S.C. 
Sec. 3729(b)(1).
    The FCA further provides that:
        Notwithstanding any other provision of law, the Federal Rules 
        of Criminal Procedure, or the Federal Rules of Evidence, a 
        final judgment rendered in favor of the United States in any 
        criminal proceeding charging fraud or false statements, whether 
        upon a verdict after trial or upon a plea of guilty or nolo 
        contendere, shall estop the defendant from denying the 
        essential elements of the offense in any action which involves 
        the same transaction as in the criminal proceeding and which is 
        brought under subsection (a) or (b) of section 3730.
31 U.S.C. Sec. 3731(e).

                             IV. DISCUSSION

    Before I turn to the merits of the parties' Motions, I first 
address two procedural arguments Amor raises. He asserts: (1) this 
Court lacks subject matter jurisdiction because the Government is a 
party to a civil administrative money penalty proceeding involving 
Amor; and (2) the Second Amended Complaint (``SAC'') does not meet the 
heightened pleading standards of Fed. R. Civ. P. 9(b).\4\ (ECF Nos. 
141, 162).
---------------------------------------------------------------------------
    \4\ In addition to these arguments, Amor contends: (1) students do 
not need a high school diploma or equivalent degree to be eligible for 
Federal student aid; (2) students were not, in fact, ineligible; (3) 
this action violates the Double Jeopardy Clause of the Fifth Amendment; 
and (4) res judicata established Government loss to be $1,900,000. (ECF 
Nos. 141, 162).
---------------------------------------------------------------------------
                     A. Subject Matter Jurisdiction
    Amor argues that the Court lacks subject matter jurisdiction under 
31 U.S.C. Sec. 3730(e)(3) and (4), and lacked jurisdiction over the 
dismissed Relator's original qui tam complaint, because FastTrain was 
subject to a 2011 DOE Program Review. The relevant subsections of 
Sec. 3730(e) provide:
          (3) In no event may a person bring an action under subsection 
        (b) which is based upon allegations or transactions which are 
        the subject of a civil suit or an administrative civil money 
        penalty proceeding in which the Government is already a party.
          (4)(A) The court shall dismiss an action or claim under this 
        section, unless opposed by the Government, if substantially the 
        same allegations or transactions as alleged in the action or 
        claim were publicly disclosed--
                         (i) in a Federal criminal, civil, or 
                        administrative hearing in which the Government 
                        or its agent is a party;
                         (ii) in a congressional, Government 
                        Accountability Office, or other Federal report, 
                        hearing, audit, or investigation; or
                         (iii) from the news media, unless the action 
                        is brought by the Attorney General or the 
                        person bringing the action is an original 
                        source of the information.
31 U.S.C. Sec. 3730(e)(3)-(4).
    Amor's ``public disclosure bar'' argument fails because he provides 
no evidence that the DOE's preliminary Program Review Report \5\ about 
FastTrain (ECF No. 141-1) ever reached the public domain (i) in a 
Federal criminal, civil, or administrative hearing in which the 
Government or its agent is a party; (ii) in a congressional, Government 
Accountability Office, or other Federal report, hearing, audit, or 
investigation; or (iii) from the news media. See United States ex rel. 
Wilson v. Graham Cty. Soil & Water Conservation Dist., 777 F.3d 691, 
697 (4th Cir. 2015) (``[T]he government is not the equivalent of the 
public domain.'') (quoting Kennard v. Comstock Res., Inc., 363 F.3d 
1039, 1043 (10th Cir. 2004)). Indeed, Federal law requires the DOE to 
``maintain and preserve'' the confidentiality of any program review 
report until the institution has responded and the DOE issues a Final 
Program Review Determination (``FPRD''). 20 U.S.C. Sec. 1099c-
1(b)(6)(8). That never happened here. Where there is ``no `public 
disclosure' under section 3730(e)(4)(A), [the] qui tam action is not 
jurisdictionally barred under that section.''\6\ United States ex rel. 
Williams v. NEC Corp., 931 F.2d 1493, 1500 (7th Cir. 2016).
---------------------------------------------------------------------------
    \5\ According to the DOE's Program Review Guide, the purpose of a 
program review is to promote and improve compliance by improving 
institutional performance. The reviewer(s) will: (1) analyze the 
institution's data and records and identify any weaknesses in the 
institution's procedures for administering Title IV, HEA program funds; 
(2) frame required actions and recommendations that will strengthen the 
institution's future compliance with Title IV, HEA rules and 
regulations; (3) quantify any harm resulting from the institution's 
impaired performance and identify liabilities where noncompliance 
results in loss, misuse, or unnecessary expenditure of Federal funds; 
determine the extent to which any weaknesses in the institution's 
administration of Title IV, HEA program funds may subject students and 
taxpayers to potential or actual fraud, waste, and abuse; and (4) refer 
institutions for administrative action to protect the interests of 
students and taxpayers, when necessary. Program Review Guide for 
Institutions (2009), https://ifap.ed.gov/ programrevguide/attachments/
2009ProgramReviewGuide.pdf.
    \6\ In any event, the United States has invoked its statutory right 
under 31 U.S.C. Sec. 3730(e)(4) to oppose dismissal on this basis.
---------------------------------------------------------------------------
    As for Armor's arguments under Sec. 3703(e)(3), it is his burden to 
show that the Government is a party in an administrative civil money 
penalty proceeding based on the same allegations or transactions at 
issue in this case. See United States ex rel. Johnson v. Shell Oil Co., 
26 F. Supp. 2d 923, 928 (E.D. Tex. 1998) (burden lies with defendant). 
He is correct that the FCA does not define the phrase, ``administrative 
civil money penalty proceeding,'' and thus leaves it open to 
interpretation. The fact is, however, that the preliminary Program 
Review Report contains no demand for payment of a money penalty. Cf. 
id. (payment demands and audit letters do not bar suit under 
Sec. 3730(e)(3)). Indeed, the DOE may seek to recover money from an 
institution only after it issues an FPRD. 34 C.F.R. pt. 668. Again, 
that never happened here. Amor therefore has not convinced me that the 
preliminary Program Review Report is an administrative civil money 
penalty proceeding that would bar this action under Sec. 3730(e)(3), or 
that it is evidence that such a proceeding was pending.
    Simply put, Amor's contention that this Court lacks subject-matter 
jurisdiction is misguided.
                              B. Rule 9(b)
    The United States contends Amor waived his argument under Rule 9(b) 
by failing timely to raise it. ``Rule 9(b)'s pleading standard is not 
an affirmative defense that is waived by a defendant's failure to raise 
it'' in an initial pleading. See, e.g., Olson v. Fairview Health Servs. 
of Minnesota, 831 F.3d 1063, 1074 (8th Cir. 2016). A court may resolve 
a Rule 9(b) deficiency even on a motion for summary judgment. United 
State ex rel Schwartz v. Coastal Healthcare Group, Inc., 2000 WL 
1595976, at *4 (10th Cir. 2000). That said, Amor's Rule 9(b) argument 
is unavailing.
    A complaint under the False Claims Act must meet the Rule 9(b) 
pleading standard. See United States ex rel. Clausen v. Lab. Corp. of 
Am., 290 F.3d 1301, 1309-10 (11th Cir. 2002) (noting ``it was `well 
settled' and `self-evident' that the False Claims Act is `a fraud 
statute' for the purposes of Rule 9(b)'') (citation omitted). A False 
Claims Act complaint satisfies Rule 9(b) if it sets forth `` `facts as 
to time, place, and substance of the defendant's alleged fraud,' 
specifically `the details of the defendants' allegedly fraudulent acts, 
when they occurred, and who engaged in them.' '' Id. at 1310 (quoting 
United States ex rel. Cooper v. Blue Cross & Blue Shield of Fla., 19 
F.3d 562, 567-68 (11th Cir. 1994)).
    The SAC easily satisfies Rule 9(b)'s requirements. It specifies the 
substance of Amor's fraudulent acts in exacting detail, see generally 
ECF No. 83, including the approximate time periods and, in some cases, 
specific dates of fraudulent acts, see, e.g., id.  63, 100, and who 
engaged in them, see, e.g., id.  86, 100. Amor's argument under Rule 
9(b) therefore fails.
                    C. The United States' Arguments
    I next address the United States' arguments in support of its 
Motion, as they are case dispositive. The United States contends: (1) 
Amor's criminal conviction precludes him from denying any of the 
elements of the fraudulent and/or false claims alleged in this action; 
(2) Amor's false claims were material to the DOE's payments to 
FastTrain; (3) the United States is entitled to treble damages; and (4) 
Amor is liable for civil penalties under 31 U.S.C. Sec. 3729(a). I 
discuss the effect of Amor's criminal conviction first.
              1. The Effect of Amor's Criminal Conviction
    Under the principles of collateral estoppel, the preclusive effect 
of a criminal conviction on future civil proceedings is well 
established. See, e.g., Emich Motors Corp. v. Gen. Motors Corp., 340 
U.S. 558, 568-69 (1951) (``It is well established that a prior criminal 
conviction may work an estoppel in favor of the Government in a 
subsequent civil proceeding.''). Under Federal common law, for 
collateral estoppel to apply: ``(1) the issue must be identical in the 
pending case to that decided in the earlier proceeding; (2) the issue 
must necessarily have been decided in the earlier proceeding; (3) the 
party to be estopped must have been a party or have been adequately 
represented by a party in the earlier proceeding; and (4) the issue 
must actually have been litigated in the first proceeding.'' Montalbano 
v. C.I.R., 307 F. App'x. 322 (11th Cir. 2009) (citing In re Raiford, 
695 F.2d 521, 523 (11th Cir. 1983)).
    For claims arising under the FCA, the principle of collateral 
estoppel is codified in the FCA at 31 U.S.C. Sec. 3731(e). The statute 
makes clear that a criminal conviction for a violation of 18 U.S.C. 
Sec. Sec. 371 and/or 641 estops a defendant in a FCA case from denying 
the essential elements of the Sec. Sec. 3729(a)(1)(A) and (B) offenses 
when the claims involve the same transaction at issue in the 
defendant's prior criminal proceeding. See, e.g., United States v. 
Anghaie, 633 F. App'x. 514, 516 (11th Cir. 2015).\7\
---------------------------------------------------------------------------
    \7\ See also United States v. Aleff, 772 F.3d 508, 510 (8th Cir. 
2014) (defendants who pled guilty to conspiracy to defraud the United 
States by submitting false applications for loan-deficiency payments 
estopped from denying essential elements of FCA offenses); United 
States ex rel. Nottingham v. Thomas, 2015 WL 7424738 (E.D. Va. 2015) 
(criminal conviction precludes denying liability); United States ex 
rel. Green v. Schuykill Products, Inc., 2014 WL 2154664 (M.D. Pa. 2014) 
(guilty plea for 18 U.S.C. Sec. 371 violation conclusively established 
all factual issues as to his liability under the FCA); United States v. 
Karron, 750 F.Supp.2d 480, 487 (S.D.N.Y. 2011) (defendant in a FCA suit 
precluded from denying liability for false statements when previously 
convicted in criminal proceeding for the ``same transaction.''); United 
States v. Mastellone, 2011 WL 4031199 (S.D.N.Y. 2011) (defendant who 
pled guilty to felony charge of fraudulently stealing money from the 
United States, in violation of 18 U.S.C. Sec. 641, ``estopped from 
denying the essential elements of the Sec. Sec. 3729(a)(1)(A) and (B) 
offenses, since these claims involve the same transaction at issue in 
[defendant]'s prior criminal proceeding, at which he pled guilty.''); 
United States v. Sriram, 2008 WL 516306 (N.D. Ill. 2008) (statutory 
estoppel proper where civil action involved the ``same course of 
conduct'' and overlapping ``specific factual matters'' as prior 
criminal case); United States v. Eghbal, 475 F. Supp. 2d 1008 (C.D. 
Cal. 2007) (no genuine issue of material fact regarding liability under 
FCA because defendants' prior convictions and admissions in plea 
agreements established that their false statements caused the 
Government ``to pay out money'').
---------------------------------------------------------------------------
    Here, the Second Superseding Indictment against Amor and his co-
conspirators alleges, as the United States alleges in this action, 
inter alia, that the DOE approved FastTrain to receive both Pell Grants 
and Direct Loans. See Second Amended Complaint, E.C.F. No. 83  37-68; 
Amor Criminal Proceeding, Second Superseding Indictment, ECF No. 252  
15-30. Amor signed Program Participation Agreements (``PPAs'') in which 
he agreed that FastTrain would comply with all applicable Federal 
statutes and regulations relating to the Pell Grant and Direct Loan 
Programs, including, inter alia, the requirement that FastTrain enroll 
only students with a high school diploma, GED, or other approved 
credential. Based on those representations, the Government charged Amor 
with fraud or false statements in the Amor Criminal Proceeding. For 
example, the Second Superseding Indictment alleges, inter alia:

                         PURPOSE OF CONSPIRACY

3. It was the purpose of the [Defendants'] conspiracy to unlawfully 
enrich themselves by obtaining and misappropriating Pell Grant and 
Direct Loan funds from the United States Department of Education by 
making materially false and fraudulent representations, and by the 
concealment of material facts, concerning, among other things, the 
eligibility of students to receive Pell Grant and Direct Loan funds and 
the students' status as high school graduates.

                   MANNER AND MEANS OF THE CONSPIRACY

The manner and means by which the defendants and their co-conspirators 
sought to accomplish the object and purpose of the conspiracy included, 
among other things, the following:
4. Beginning in or around January 2010, ALEJANDRO AMOR directed JOSE W. 
GONZALEZ, ANTHONY MINCEY, Michael Grubbs, Luis Arroyo, Juan Arreola, 
Juan Pena, and others, to enroll students without high school diplomas 
or GEDS in FastTrain. AMOR further directed [them], and others, to 
coach those students to lie to FastTrain financial aid representatives 
assisting students with their FAFSAS, in order to falsely and 
fraudulently obtain Pell Grant and Direct Loan funds for the students.
5. JOSE W. GONZALEZ, ANTHONY MINCEY, Michael Grubbs, Luis Arroyo, Juan 
Arreola, Juan Pena, and others, acting at the direction of ALEJANDRO 
AMOR, recruited students without high school diplomas to enroll in 
FastTrain by, among other things, falsely and fraudulently advising the 
students that they could obtain a high school diploma for a fee and 
should falsely and fraudulently respond yes when asked by FastTrain 
financial aid representatives whether they had a high school diploma or 
GED.
6. ALEJANDRO AMOR, JOSE W. GONZALEZ, ANTHONY MINCEY, Michael Grubbs, 
Luis Arroyo, Juan Arreola, Juan Pena, and others, caused the students 
without high school diplomas to submit FAFSAS to the United States 
Department of Education falsely and fraudulently indicating that the 
student had graduated from high school or had a GED.
7. As a result of these false and fraudulent FAFSAS, ALEJANDRO AMOR 
received Pell Grants and Direct Loans from the United States Department 
of Education.
8. ALEJANDRO AMOR used the proceeds from the false and fraudulent 
FAFSAS for his own benefit and the benefit of others, and to further 
the fraud.
    See Amor Criminal Proceeding, Second Superseding Indictment, ECF 
No. 252, Purpose of Conspiracy  3; Manner and Means of the Conspiracy 
 4, 5, 6, 7, 8 (emphasis added); see also Second Superseding 
Indictment, ECF No. 252, Overt Acts  1-40.
    The SAC in this case contains nearly identical allegations. To 
highlight just a few examples:
7. Beginning in at least July 1, 2009 and continuing through its 
closure in 2012, FastTrain engaged in a widespread scheme to defraud 
the Department of Education in order to receive Federal funding it 
would not otherwise have been entitled to receive.
8. FastTrain made false statements and concealed material information 
from the Department of Education in order to ensure that it would 
continue to receive Federal funding under Title IV of the HEA. For 
example, FastTrain and its employees knowingly submitted and/or caused 
to be submitted false information relating to the eligibility of 
students to receive title IV, HEA program assistance, by providing 
false documentation that students had high school diplomas or its 
recognized equivalent, when such students did not have such 
credentials.
9. FastTrain engaged in fraudulent conduct in an attempt to secure 
Federal aid for students who, but for FastTrain's conduct, would have 
been ineligible for assistance under Title IV of the HEA. FastTrain 
fabricated high school diplomas of some of its prospective students at 
some of its campuses in order to permit unqualified students to enroll 
at FastTrain. FastTrain then improperly received and retained Title IV 
assistance for those unqualified students. FastTrain also told 
prospective students who did not have high school diplomas or their 
equivalency that they could enroll and receive Federal financial 
assistance if they attended FastTrain. FastTrain instructed and 
counseled certain ineligible prospective students to provide false high 
school completion attestations and further coached certain prospective 
ineligible students to lie on Free Application for Federal Student Aid 
(``FAFSA'') documentation. FastTrain also improperly received and 
retained Title IV assistance for those unqualified students.
10. FastTrain also routinely altered attendance records of students who 
were not meeting minimum requirements. FastTrain kept students on its 
attendance rolls--and, as such, Federal financial aid recipient list--
when students were not attending FastTrain. Finally, FastTrain 
employees falsified financial aid records in order to secure more 
Federal funding for students than the students were eligible to 
receive.
11. Defendants' conduct was knowing and material to FastTrain's 
continued eligibility to participate in the Title IV programs. As a 
result of Defendants' fraudulent scheme and false representations of 
Title IV eligibility, FastTrain received millions of dollars of Title 
IV financial aid that it otherwise would not have received but for 
Defendants' conduct.
    (ECF 83  7-11) (emphasis added).
    Amor argues that estoppel does not apply because the elements of 
his criminal charges are different than the elements of the civil 
claims in this case. That argument ignores the FCA's plain language, 
which specifies that preclusion applies where ``the essential elements 
of the offense [in the civil case] . . . involve[] the same transaction 
as in the criminal proceeding.'' 31 U.S.C. Sec. 3731(e) (emphasis 
added). The court's Order Denying Defendant Amor's Motion for New Trial 
(ECF No. 410) in the Amor Criminal Proceeding leaves no doubt that the 
transactions at issue there were the same as those at issue here. It 
states, in relevant part:
        This case arose from an investigation by the United States 
        Department of Education, Office of [Inspector] General, 
        regarding illegal student recruiting and enrollment practices 
        at Fast Train, a for-profit college with seven campuses 
        throughout Florida. Testimony at trial revealed that Fast Train 
        admissions representatives--acting at the direction of the 
        school's owner, Defendant Alejandro Amor (``Defendant'')--
        routinely recruited and enrolled students at Fast Train who 
        were not eligible for Federal student aid because they did not 
        have a high school diploma or GED. In order to obtain Federal 
        student aid on behalf of the ineligible students they 
        recruited, Fast Train admissions representatives . . . coached 
        the students to falsely claim that they did have the required 
        credential--first on their Fast Train enrollment paperwork, 
        then in interviews with Fast Train's financial aid officers, 
        and finally on their applications for Federal student aid 
        (``FAFSAs''). As part of their efforts to induce ineligible 
        students to enroll in Fast Train, admissions representatives 
        falsely promised students they would earn a high school diploma 
        while attending Fast Train and, in some cases, representatives 
        actually sold students fictitious high school diplomas.
                                  . . .
        The Government presented approximately forty witnesses, 
        including several former Fast Train students who testified that 
        they were recruited, coached to lie on their FAFSAs about their 
        eligibility for student aid, and saddled with thousands of 
        dollars in debt that they are unable to repay. Most of the 
        student witnesses testified that they dropped out of Fast Train 
        for personal reasons or because they were not satisfied with 
        the school. Six Jacksonville students identified Mincey as the 
        (or one of the) admissions representatives who falsely advised 
        them that a high school diploma or GED was not required for 
        admission to Fast Train.
        The Government also presented the testimony of several former 
        Fast Train employees who were either directed by Defendant to 
        enroll ineligible students or fired for refusing to do so. For 
        example, former admissions director Luis Arroyo testified that 
        he and his staff began creating fake high school diplomas for 
        ineligible students and that he got the idea from Defendant, 
        who had ordered education director Santiago Martinez to create 
        a diploma for a student. Additionally, former financial aid 
        representative Caridad Perez testified that Defendant routinely 
        pressured her to process ineligible students for Federal 
        student aid, and ultimately fired her for refusing to do so. 
        Moreover, former admissions representative Jose W. Gonzalez 
        testified that, with Defendant's blessing, he obtained invalid 
        high school diplomas for recruits from a high school called 
        American Worldwide Academy, by taking the test for students and 
        collecting a fee; in some cases, Mr. Gonzalez enrolled the 
        students without actually collecting the fee or providing the 
        diploma at all. Finally, the Government presented several 
        emails and other documents, as well as an audio recording, 
        which, together with the testimony, established that Defendant 
        was repeatedly advised about the illegal activities at Fast 
        Train, and took active steps to conceal those activities, 
        including creating false reports of internal investigations, 
        fake ``secret shopper'' programs, and fake employee 
        disciplinary reports.
                                  . . .
    Defendant presented several witnesses in his defense. . . . Fifth, 
former Fast Train operations manager German Vargas testified that 
Defendant never asked him to do anything illegal and, in fact, that 
Defendant had directed him to conduct an investigation into allegations 
of misconduct raised by former Fast Train employee (and Government 
witness) Joseph Bodden. . . .
    The Government called eight rebuttal witnesses to establish that 
Amor had falsified the results of the Bodden investigation, about which 
German Vargas had testified. Specifically, the rebuttal witnesses 
demonstrated that, even when presented with notes of the investigation, 
which included names of Fast Train enrollees without high school 
diplomas, Defendant had not only retained Federal student aid in those 
enrollees' names, but had also prepared a lengthy type-written report 
falsely claiming that the Bodden investigation had revealed no 
improprieties in any area, including students without diplomas.
    Applying the criteria for estoppel under the FCA, Amor's prior 
conviction has preclusive effect in the instant case.\8\ The criminal 
and civil cases both involve the same transactions--Amor's fraudulent 
claims to the DOE.\9\ The falsity of Amor's statements and claims were 
central to his criminal charges, and are central to his liability in 
this case. Thus, as a matter of law, the final judgment rendered in 
favor of the United States and against Amor in the Amor Criminal 
Proceeding estops Amor from denying the essential elements of the 
offense in this action. See 31 U.S.C. Sec. 3731(e). The effect of this 
estoppel is that Amor cannot deny liability under 31 U.S.C. 
Sec. 3729(a)(1)(A) and (B).\10\
---------------------------------------------------------------------------
    \8\ The fact that Amor is currently appealing his conviction is 
irrelevant to the preclusion analysis. See, e.g., Nat'l Union Fire Ins. 
Co. of Pittsburgh, Pa. v. Sun, 1997 WL 165331, at *2 (2d Cir. 1997) 
(``[A] pending appeal does not relieve a conviction of its preclusive 
effect.'').
    \9\ Indeed, the parties previously stipulated that this action and 
the Amor Criminal Proceeding arise from the ``same general facts.'' 
See, e.g., Joint Motion to Stay Civil Proceedings Pending Final 
Resolution of Related Criminal Case (E.C.F. No. 84 at 6).
    \10\ Because I conclude Amor is estopped from denying liability in 
this case, I need not address the parties' arguments as to whether Amor 
actually violated the FCA.
---------------------------------------------------------------------------
    As Amor is estopped from contesting the FCA cause of action against 
him, there are no genuine issues of material fact upon which Amor might 
craft a defense. Summary Judgment in favor of the United States and 
against Amor is therefore warranted. Accordingly, the only issue left 
for me to resolve is the amount of damages and/or civil penalties to 
which the United States is entitled.
                               2. Damages
    When found to have violated the FCA, a defendant ``is liable to the 
U.S. Government for . . . [three] times the amount of damages which the 
Government sustains because of the act of that person,'' plus civil 
penalties. 31 U.S.C. Sec. 3729(a). Amor does not appear to dispute that 
fact. Instead, he challenges the United States' proposed measure of 
single damages. He argues that in the Amor Criminal Proceeding, the 
court made a ``judicial determination'' of the United States' losses 
when it ordered him to pay restitution totaling $1,900,000. Thus, he 
contends, that ``amount is indeed res judicata'' as to damages in this 
case. (ECF No. 162 at 9). That contention lacks merit.
    The Eleventh Circuit has recognized that ``[a]n order of 
restitution is not a judicial determination of damages. Damages measure 
the amount of compensable loss a victim has suffered. Restitution, by 
contrast, is an equitable remedy, `subject to the general equitable 
principle that [it] is granted to the extent and only to the extent 
that justice between the parties requires.' '' United States v. 
Barnette, 10 F. 3d 1553, 1556-57 (11th Cir. 1994) (citation omitted). 
In Barnette, the Eleventh Circuit declined to limit a damages award in 
a civil FCA case to the amount of restitution awarded by the district 
court, noting that the defendant's attempt to equate the sentencing 
judge's restitution order with a determination of damages was 
``unpersuasive''. Barnette, 10 F.3d at 1556-57. The court held that 
``[m]ore likely, the sentencing judge decided that the Government had 
lost at least $7 million and that Barnette could pay that amount, but 
left final resolution of the Government's damages claim to the ensuing 
civil case.'' Id. Although the sentencing court in this case awarded 
restitution of $1,900,000, Barnette's reasoning nevertheless directs 
that a restitution finding in a criminal case does not foreclose the 
United States from seeking a different damages award in a subsequent 
civil case. See id.
    ``FCA damages `typically are liberally calculated to ensure that 
they afford the government complete indemnity for the injuries done 
it.' '' United States ex rel. Doe v. DeGregorio, 510 F. Supp. 2d 877, 
890 (M.D. Fla. 2007) (quoting United States ex rel. Roby v. Boeing Co., 
302 F.3d 637, 646 (6th Cir. 2002)). While there is ``no set formula for 
determining the government's actual damages'' for an FCA claim, the 
Eleventh Circuit has explained that, as a general rule, the ``measure 
is `the difference between what the government actually paid on the 
fraudulent claim and what it would have paid had' '' it known of the 
false statements. Anghaie, 633 F. App'x at 518 (quoting, United States 
v. Killough, 848 F.2d 1523, 1532 (11th Cir. 1988)). Where, as here, the 
United States would have paid out nothing to FastTrain but for its 
false claims and certifications, the proper measure of damages is the 
full amount the United States paid out. See id. (citing United States 
ex rel. Longhi v. United States, 575 F.3d 458, 461-62, 473 (5th Cir. 
2009) (affirming award of damages based on full amount of Government 
grant without offset)).\11\
---------------------------------------------------------------------------
    \11\ See also United States v. Sci. Applications Int'l Corp., 626 
F.3d 1257, 1279 (D.C. Cir. 2010) (``[W]here the defendant fraudulently 
sought payments for participating in programs designed to benefit 
third-parties rather than the government itself, the government can 
easily establish that it received nothing of value from the defendant 
and that all payments made are therefore recoverable as damages.''); 
United States v. Rogan, 517 F.3d 449, 453 (7th Cir. 2008) (affirming 
award of damages based on total amount that defendant received from 
Government without offset); United States v. Mackby, 339 F.3d 1013, 
1018-19 (9th Cir. 2003) (rejecting damages offset where the Government 
had received no asset of ascertainable value).
---------------------------------------------------------------------------
    According to the United States, the DOE paid out approximately 
$25,200,000 to FastTrain during the 2010-2012 program years. That 
amount, if supported by the evidence, would therefore be an accurate 
measure of single damages under the law. Within its discretion, 
however, the United States requests that I limit the measure of damages 
to the more modest amount of Federal student aid FastTrain actually 
stole through its false claims and false certifications. Testimony in 
the Amor Criminal Proceeding pegged that amount at $4,129,765. See, 
e.g., Amor Criminal Proceeding, ECF No. 543 at 33-34. I find that 
amount to be a reasonable, if not a conservative, estimate of the 
United States' loss. See United States ex rel. Doe, 510 F. Supp. at 890 
(``The computation of damages does not have to be done with 
mathematical precision but, rather, may be based upon a reasonable 
estimate of the loss.''). Amor is therefore liable for $4,129,765, 
trebled, minus any restitution he pays to the Government.\12\
---------------------------------------------------------------------------
    \12\ Imposition of FCA treble damages and civil penalties does not, 
as Amor argues, violate the Double Jeopardy Clause of the Fifth 
Amendment. See Karron, 750 F. Supp. 2d at 493 n.12 (collecting cases).
---------------------------------------------------------------------------
                           3. Civil Penalties
    Liability under the FCA also triggers the imposition of civil 
penalties. 31 U.S.C. Sec. 3729(a) (a person liable under the FCA ``is 
liable to the U.S. Government for a civil penalty of not less than 
$[5,500] and not more than $[11,000]''); 28 C.F.R. Sec. 85.3(a)(9) 
(adjusting penalties for inflation). The civil penalty the Government 
is entitled to recover is assessed for each false claim. 31 U.S.C. 
Sec. 3729(a)(2). Thus, the number of violations of the FCA depends on 
the number of false or fraudulent claims or other requests for payments 
that defendant caused to be submitted.
    Amor signed, certified and submitted four PPAs to the DOE on behalf 
of FastTrain during the 2010-2012 timeframe. (ECF No. 134-2 ] 2; ECF 
No. 302-1 at 17-20). Those PPAs constituted false claims. Additionally, 
during the 2010-2012 program years, there were 920 separate draw-downs 
associated with FastTrain in the DOE's Grants Management System (G-5). 
(ECF No. 134-1 ] 3). Each draw-down falsely certified FastTrain's 
compliance with DOE regulations. The United States argues that, given 
the ``egregious'' nature of Amor's conduct, I should impose the maximum 
penalty: a $11,000 fine for each of the 924 false claims. (ECF 131 at 
19-20). I agree.
    The student victims in this case were especially vulnerable. They 
were young people who, for whatever reasons, had not graduated high 
school. Realizing there are few jobs one can obtain without a high-
school diploma or equivalent degree, they turned to FastTrain, hoping 
to learn marketable skills to improve their chances of making a decent 
living. FastTrain aggressively recruited these students, and then used 
fraud to make the Government think they were eligible for Federal aid 
and loans. FastTrain bilked the Government out of millions of dollars, 
most of which ended up in Amor's pockets. As for the student victims, 
many now carry debt that will be enormously difficult to pay off with 
what they can earn working the low-level jobs for which they are 
qualified. The effects of Amor's fraudulent acts are thus abhorrent and 
far-reaching.
    In light of the seriousness of Amor's misconduct, I find that the 
statutory maximum fine of $11,000 for each of the 924 false claims is 
appropriate. See Cole v. U.S. Dep't of Agric., A.S.C.S., 133 F.3d 803, 
807 (11th Cir. 1998) (remedial penalties are not subject to excessive 
fine scrutiny); United States v. NEC Corp., 11 F.3d 136, 137 (11th Cir. 
1993) (qui tam provisions are remedial penalties).

                               CONCLUSION

    It is, therefore, ORDERED and ADJUDGED that Plaintiff the United 
States' Motion for Summary Judgment (ECF No. 131) is GRANTED and 
Defendant Amor's Cross-Motion for Summary Judgment (ECF No. 141) is 
DENIED.
    DONE and ORDERED in chambers at Miami, Florida, this 15th day of 
February 2017.
                                            Marcia G. Cooke
                                       United States District Judge
    Copies furnished to:
    Edwin G. Torres, U.S. Magistrate Judge
    Counsel of Record
                               __________

                      UNITED STATES DISTRICT COURT
                      SOUTHERN DISTRICT OF FLORIDA

                   Case No. 12-Civ-21431-COOKE/TORRES
    UNITED STATES OF AMERICA, et al.,

                Plaintiffs,

    vs.

    FASTTRAIN II CORP.,
    d/b/a FASTTRAIN COLLEGE,
    an administratively dissolved for profit
    Florida corporation and ALEJANDRO
    AMOR, an individual,

                Defendants.

    --------------------------------------/

                             FINAL JUDGMENT

    It is ORDERED and ADJUDGED that Plaintiff the United States of 
America's Motion for Summary Judgment (ECF No. 131) is GRANTED and 
Defendant Alejandro Amor's Cross-Motion for Summary Judgment (ECF No. 
141) is DENIED. Final judgment is entered in favor of the Plaintiff and 
against Defendant Amor. Plaintiff is awarded damages in the amount of 
$4,129,765, trebled, together with pre-and post-judgment interest, 
which shall accrue at the applicable legal rate, for which sum let 
execution issue. In addition, Defendant Amor is assessed a civil 
penalty of $11,000 for each of the 924 false claims Defendants made to 
the Department of Education.
    DONE and ORDERED in chambers, at Miami, Florida, this 15th day of 
February 2017.
                                            Marcia G. Cooke
                                       United States District Judge
    Copies furnished to:
    Edwin G. Torres, U.S. Magistrate Judge
    Counsel of Record

                               __________
                                   Hire Heroes USA,
                                      Alpharetta, GA 30004,
                                                    April 28, 2017.
Senator Lamar Alexander, Chairman
U.S. Senate Committee on Health, Education, Labor & Pensions,
455 Dirksen Senate Office Building,
Washington, DC 20510.

    Senator Alexander, It is my distinct pleasure to endorse Lieutenant 
Colonel Dan Gade, USA, Ret. for confirmation as an Equal Employment 
Opportunity Commissioner. Colonel Gade's character, leadership, and 
lifetime of service to the United States make him well-suited to the 
position.
    I have had the privilege of working with Colonel Gade for the past 
2 years in my capacity as President and CEO of Hire Heroes USA, the 
nation's most notable veteran employment nonprofit. During that time, 
Colonel Gade has played a pivotal role in the development and fielding 
of a research study called The Independence Project, which my team 
leads and manages. The Independence Project is premised on the idea 
that disabled veterans can achieve better outcomes by being incented to 
find meaningful work, rather than paying them to identify as disabled 
for a lifetime. We are proud to collaborate with Colonel Gade and his 
co-founder, Thomas Meyer, on this groundbreaking project.
    As a professional in the veteran service space for more than 8 
years, I have been impressed by Colonel Gade's outstanding thought 
leadership on behalf of veterans. On a personal basis as a combat 
veteran, I respect Colonel Gade's stoicism and grit in turning his leg 
amputation from Iraq into a catalyst for so much positive change in the 
veteran space. Disabled veterans have few stronger advocates or more 
inspirational role models than Colonel Gade.
             Sincerely,
                                               Brian Stann,
                                                 President and CEO.

                               __________
                                  Senator Bob Dole,
                             The Atlantic Building,
                                    Washington, D.C. 20004.
                                                   August 21, 2017.
Lamar Alexander, Chairman
Patty Murray, Ranking Member
U.S. Senate Committee on Health, Education, Labor and Pensions
428 Dirksen Senate Office Building Washington, DC. 20510

    Dear Lamar and Patty, I am writing to offer my endorsement of the 
nomination of LTC (Retired) Daniel M. Gade for Commissioner of the 
Equal Employment Opportunity Commission. His expertise in veterans and 
disability policy is outstanding, and I am confident that he will add 
immeasurably to the capabilities and mission of the EEOC.
    I first met Daniel over 10 years ago when I served as Co-Chair of 
the President's Commission on Care for America's Returning Wounded 
Warriors (the Dole/Shalala Commission). At that time, Daniel was an 
Associate Director of the White House Domestic Policy Council. I was 
impressed by his grasp of the issues and his willingness to tackle 
politically challenging and sensitive topics with ease. He contributed 
significantly to the rollout of the recommendations and to the eventual 
implementation of some of them.
    Daniel was gravely wounded in action in Iraq in 2005. His life-
changing wounds served as a catalyst for helping other veterans and 
persons with disabilities. I am very hopeful about the potential of 
Daniel serving on the EEOC, and I encourage you to confirm him swiftly. 
He will serve with distinction.
            God Bless America,
                                                  Bob Dole.

                               __________
                      Senator Bob Kerrey (Retired),
                                  New York, New York 10003,
                                                   August 16, 20l7.
Lamar Alexander,
Attn: Senate HELP Committee,
455 Dirksen Bldg,
Washington , DC 20510.
    Dear Senator Alexander: I write today to offer my full and 
unqualified support of Daniel M. Gade, Ph.D., in his nomination to be a 
Commissioner of the Equal Employment Opportunity Commission . I have 
known Dr. Gade for several years, first meeting him when I was serving 
on a Commission to reform the military retirement system, and have 
since had an opportunity to mentor him on several occasions.
    I am confident that in his role as an EEOC Commissioner, he will 
fight to ensure that the laws against discrimination in our country are 
fully and faithfully enforced. He has the kind of keen mind, steady 
temperament, and empathy for the downtrodden that will serve him well 
in this critically important role. He is also committed to working with 
Congress, and will fight every day to do his duty. I also believe that 
he will be an independent voice who is unafraid to stand up to the 
Executive, should that become necessary.
    Finally, I would like you to carefully consider the impact that Dr. 
Gade can have on employment for Veterans and people with disabilities. 
He has been a fierce advocate for both groups for many years, and his 
experience of being grievously wounded in combat gives him rock-solid 
credibility. Please act on his nomination with alacrity, and allow him 
to continue his service to our great nation.
            Thank you.
            Sincerely,
                                                Bob Kerrey.

                               __________
                           Wounded Warrior Project,
                               Jacksonville, Florida 32256,
                                                   August 14, 2017.
Hon. Lamar Alexander,
ATTN: Senate HELP Committee Staff 455 Dirksen Building,
Washington, DC 20510.
    Dear Chairman Alexander: I write today to give my full and 
enthusiastic support of Dr. Daniel Gade (LTC, US Army, Retired) as a 
Commissioner of the US Equal Employment Opportunity Commission. Please 
vote to confirm him as soon as possible, so he may continue to defend 
Veterans and people with disabilities from workplace discrimination.
    Dr. Gade has been an advocate for wounded Veterans and active-duty 
soldiers since 2007, just 2 years after he lost a leg in combat. His 
work at the White House was instrumental in ensuring that the 
principles of the Dole/Shalala Commission were put into action, and he 
has been a tireless voice of sanity in proposing and defending common-
sense reforms to the disability compensation system.
    Dan has also put his time and effort into actually creating an 
experiment to help Veterans: The Independence Project, a project of 
Hire Heroes, USA, is a one-of-a-kind training and incentive program to 
help Veterans get on their feet before they get trapped in a disability 
mindset.
    Although I cannot speak on behalf of the board of Wounded Warrior 
Project, I do speak from my own experience as an active-duty Army 
officer for 35 years.
            Very Respectfully,
                                     Michael S. Linnington,
                         Lieutenant General, US Army (Retired) CEO,
                                           Wounded Warrior Project.

                               __________
               Retail Industry Leaders Association,
                      Educate.Collaborate.Advocate,
                                       Arlington, VA 22209,
                                                September 18, 2017.
Hon. Lamar Alexander, Chairman
Hon. Patricia Murray, Ranking Member
Committee on Health, Education, Labor and Pensions
U.S. Senate
428 Senate Dirksen Office Building
Washington, DC 20510
    Dear Chairman Alexander and Ranking Member Murray, Thank you for 
holding a hearing at the Senate Health, Education, Labor and Pensions 
Committee (HELP) to advance the nominations of Ms. Janet Dhillon and 
retired Lieutenant Colonel Daniel Gade to the U. S. Equal Employment 
and Opportunity Commission (EEOC). We strongly support both nominees 
and urge swift approval to fill the current vacancies to ensure 
effective oversight by the Commission.
    By way of background, RILA is the trade association of the world's 
largest and most innovative retail companies. RILA members include more 
than 200 retailers, product manufacturers , and service suppliers, 
which together account for more than $1.5 trillion in annual sales, 
millions of American jobs and more than 100,000 stores, manufacturing 
facilities and distribution centers domestically and abroad. RILA and 
its members strongly support equal employment opportunity and have 
adopted policies to achieve this core mission of the EEOC.
    While we support both nominees, we want to highlight our strong 
support for Ms. Dhillon. Ms. Dhillon is an accomplished lawyer and a 
true trailblazer. She graduated first in her law school class. Over the 
course of her distinguished career, Ms. Dhillon served as General 
Counsel for three major U.S. corporations, one each from the Fortune 
100, 300 and 500 lists. At the time she began in those roles, fewer 
women headed corporate legal departments. Her leadership and example 
have encouraged many women to follow her path.
    Ms. Dhillon also served as the first chair of RILA's sister 
organization, the Retail Litigation Center. The RLC seeks to educate 
courts on the impact that their decisions will have on the retail 
community and the millions of American jobs that depend on retail. 
Since it was founded in 2010, during a period of significant regulatory 
activity, the RLC has filed more than 100 amicus briefs on a wide range 
of issues that impact retailers including labor and employment law, 
patent trolls, statutory interpretation, class action certification 
standards, and payment system issues.
    The mission of the Equal Employment Opportunity Commission is to 
enforce Federal laws that make it illegal to discriminate against an 
employee because of certain characteristics, including the person's 
race, religion, sex or age. Given her accomplishments as a lawyer and 
her experience at the legal helm of multiple major U.S. employers, Ms. 
Dhillon has important insight on the laws that govern the American 
workforce and the opportunity that Congress directed that those laws 
provide to employees. As a result, Ms. Dhillon is an exceptional choice 
to lead the Commission.
    We look forward to Senate HELP Committee's approval of both Ms. 
Dhillon's and Lt. Col. Gade's nominations, as well as their swift 
confirmation by the full Senate.
            Sincerely,
                                             Sandy Kennedy,
                                                         President.

                               __________
                      Workforce Fairness Institute,
                                                September 18, 2017.
Senator Lamar Alexander, Chairman
Senator Patty Murray Ranking Member
Senate Committee on Health , Education, Labor and Pensions
428 Senate Dirksen Office Building Washington, DC. 20510
    Chairman Alexander and Ranking Member Murray, The Workforce 
Fairness Institute (WFI), an organization devoted to educating workers, 
their employers, employees and citizens about issues affecting the 
workplace, would like to extend our gratitude for the recent hearing 
held by the U.S. Senate Committee on Health, Education, Labor and 
Pensions (HELP) regarding the nomination of Janet Dhillon to the Equal 
Employment and Opportunity Commission (EEOC).
    We believe Dhillon is a strong and qualified nominee having served 
as general counsel for Burlington Stores, Inc. and J.C. Penny Company, 
Inc. Her distinguished legal career also led her to operate as in-house 
counsel for U.S. Airways after working more than one decade at a well-
respected law firm. She was also first in her class at the UCLA School 
of Law.
    For these reasons, among others, WFI believes Dhillon will be a 
meaningful addition to the EEOC and advance its mission of enforcing 
Federal law making it illegal for discrimination to take place in 
American workplaces.
    WFI strongly supports Janet Dhillon's nomination to the EEOC, and 
believes she will be an able and committed advocate for workers in her 
service on the commission and as its chairwoman.
            Sincerely,
                                         Heather Greenaway,
                                      Workforce Fairness Institute.
      Responses by Carlos G. Muniz to Questions of Senator Murray
    Question 1. The Every Student Succeeds Act, Public Law 114-95, 
(ESSA) was signed into law on December 10, 2015. The law mandates that 
each state must submit State plans to meet the law's requirements and 
permits states to submit consolidated State plans in lieu of individual 
Title-specific plans. To date, many states have chosen to submit 
consolidated state plans under ESSA. However, there are many 
requirements in ESSA that are not detailed in these consolidated state 
plans that states must still meet. As the Department's chief legal 
counsel, how will you ensure that the Department works to hold states 
accountable to upholding all Federal requirements laid out in ESSA, as 
is your role and responsibility?
    Answer 1. If confirmed, it will be my job to advise the Department 
as it ensures that states are following the law. Each state's plan is 
closely reviewed prior to approval and each State receives ongoing 
monitoring as the approved plans are implemented.

    Question 2. It has been reported that Secretary DeVos recently 
stated with regard to State plans required by ESSA that states should 
``go right up to the line, test how far it takes to get over 
it.''sked about this statement at your hearing you said, ``My 
job would be to advise her as to what the law requires, advise her as 
to what her discretion might be.'' Do you believe that Secretary DeVos 
has the discretion to encourage states to ``test the line?''
    Answer 2. My advice to the states would be to make a good-faith 
effort to comply with the law. My advice to the Secretary would be to 
follow the law scrupulously.

    Question 3. President Trump and Secretary DeVos have made a $20 
billion voucher program a key pillar of their education platform. 
However, the Department's overarching mission is to support our 
Nation's public schools and the 90 percent of students who attend those 
schools. In addition, statutory language and congressional intent makes 
clear funding is for public schools. Would you advise Secretary DeVos 
that she could promote a privatization program by manipulating 
competitive priorities in the existing grant programs? 
    Answer 3. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, not to 
create policy. I would examine thisissue to determine what the law 
requires or allows, and provide the best legal advice I can. On policy 
issues, I would defer to the policymakers.

    Question 4. Is it your legal opinion that the Department could 
promote its privatization agenda through implementation of ESSA?
    Answer 4. I am not aware of any such agenda at the Department, but 
I will advise the Secretary to follow the law as written and Congress 
intended.

    Question 5. In 2011 an internal company investigation revealed that 
Career Education Corporation (CEC) had misstated job placement rates, 
and in 2013 CEC agreed to pay more than $10 million to the State of New 
York resulting from the State attorney general's investigation into the 
company's misrepresentations. In 2014, CEC also received inquiries from 
18 State Attorneys General regarding the company's business practices. 
You served as a consultant for CEC during the multiState investigation. 
Please provide a brief but detailed description of the work that you 
performed on behalf of CEC including any contact you had with State or 
Federal agencies during the course of your representation.
    Answer 5. In its securities filings, CEC has disclosed the 
existence of a multiState attorneys general investigation. I have 
represented CEC in its ongoing efforts to respond to the concerns of 
the attorneys general involved in the multiState inquiry and in CEC's 
attempt to resolve the investigation. Over the course of the 
representation, I have had extensive interaction with the State 
attorney general offices working on the multiState investigation. My 
only contact on behalf of CEC with any Federal agency consisted of 
participating in phone conferences in which a CFPB official described 
and answered questions about an online, interactive student financial 
aid disclosure tool developed by the CFPB.

    Question 6. As a result of your previous representation of CEC you 
will be recused from matters dealing with the company for a period of 
time. CEC's most recent 10-K filing with the Securities and Exchange 
Commission from the fiscal year which ended December 31, 2016 states: 
``Additional ED or other rulemaking could materially and adversely 
affect our operations, business, results of operations, financial 
condition and cash-flows;'' ``We cannot predict the impact the defense 
to repayment regulations will have on student enrollment, the volume of 
future claims for loan discharge, or our future financial 
responsibility as determined by ED, all of which could be materially 
adverse;'' ``Future regulatory actions by ED or other agencies that 
regulate our institutions are likely to occur and to have significant 
impacts on our business, require us to change our business practices 
and incur costs of compliance and of developing and implementing 
changes in operations, as has been the case with past regulatory 
changes;'' and ``Our repayment liability to ED for discharged student 
loans could have a material adverse effect on our financial condition, 
results of operations and cash-flows.'' Will you recuse yourself from 
rulemakings that will bear directly upon the financial condition of 
your former client?
    Answer 6. If confirmed, I will abide by my ethics pledge and work 
with the Designated Agency Ethics Official on an ongoing basis to 
ensure I am in compliance with all ethics rules and laws.

    Question 7. Given your experience with enforcement of consumer 
protection law, do you believe that fundamentally different types of 
governance structures in higher education, such as control by corporate 
owners and investors versus governance by publicly elected or appointed 
trustees, should factor into how government assesses the risk 
associated with the use of taxpayer dollars?
    Answer 7. I do not have any particular views on that matter. If 
confirmed, I would look to applicable law and regulations to determine 
the extent to which such distinctions are legally relevant.

    Question 8. In your opinion, what is the role of the Department in 
ensuring that the mission of educating students attending a publicly 
traded for-profit educational institution is satisfied given the 
sometimes competing duty of the company to generate profits for its 
shareholders?
    Answer 8. If confirmed, I will do my best to advise the Department 
as to the laws and regulations governing any such institutions.

    Question 9. At public and nonprofit colleges, State and Federal law 
generally requires that institutional assets must be controlled and 
governed by individuals with no personal financial interest in the 
assets, and that compensation of institutional executives and 
administrators must be publicly disclosed. These requirements do not 
generally apply to for-profit colleges. Do you believe that applying 
both of these requirements to all colleges would make for-profit 
colleges more accountable to the public and reduce the need for legal 
action to correct misconduct?
    Answer 9. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, not to 
create policy. I would defer to policymakers to decide the best policy 
on questions of this nature.

    Question 10. If confirmed as General Counsel, you will play a role 
in reviewing applications by for-profit colleges that seek to convert 
to non-profit status. Do you believe it is appropriate for the 
Department to analyze whether the purpose or motivation for the 
application by any organization for such conversation is primarily to 
avoid Federal regulations?
    Answer 10. If confirmed, I will do my best to advise the Department 
as to what the applicable laws and regulations require in evaluating 
such applications.

    Question 11. If a for-profit college is approved to convert to non-
profit status, do you believe that it is appropriate for the former 
for-profit owners to continue to receive payments from the institution 
through rent, lease, loan repayments, or other types of payments?
    Answer 11. If confirmed, I will do my best to advise the Department 
as to what the applicable laws and regulations require in this 
situation. I would defer to policymakers to decide the best policy on 
questions of this nature.

    Question 12. When the Internal Revenue Service approves an 
application for a for-profit entity to be a recognized tax-exempt 
organization, they note that the approval can be revoked retroactively 
to reclaim lost tax revenue. If the U.S. Department of Education 
approves the conversion of an entity from for-profit to non-profit 
status and later discovers, as the IRS describes, ``the organization 
omitted or misstated a material fact, operated in a manner materially 
different from that originally represented, or engaged in a prohibited 
transaction'for the purpose of diverting corpus or income from its 
exempt purpose'' do you believe the organization should be 
retroactively liable for repaying Federal student aid dollars that were 
erroneously awarded?
    Answer 12. If confirmed, I will do my best to advise the Department 
as to what the applicable laws and regulations require in this 
situation. I would defer to policymakers to decide the best policy on 
questions of this nature.

    Question 13. If you are confirmed, your role will be to act as an 
independent voice to ensure the U.S. Department of Education enforces 
Federal law, including the Higher Education Act. This will be a shift 
from your current role as an attorney defending colleges from 
investigations and lawsuits. What specific steps do you plan to take to 
familiarize yourself with this new role and to ensure that you are 
adequately prepared to advise the Secretary on when it is necessary to 
initiate investigations or enforcement actions against institutions of 
higher education that are potentially misusing taxpayer dollars?
    Answer 13. If confirmed, I will meet with my colleagues in the 
general counsel's office, including career attorneys, to further 
familiarize myself with the laws and regulations enforced by the 
Department and with the General Counsel's office's traditional policies 
and practices. I commit to ensuring that all the advice I give as 
General Counsel, including advice related to potential or actual 
investigations, will be candid and based on my independent judgment.

    Question 14. Florida Attorney General Pam Bondi approved a 
settlement with Keiser University in 2012, during the period of time 
that you served as one of her top advisors. Please describe the role 
that you played in negotiating and/or approving that settlement.
    Answer 14. I was aware of the existence of the Florida Attorney 
General's office's investigation of Keiser University while the 
investigation was ongoing. I was aware of the settlement that resolved 
the investigation, and I believed that the settlement appropriately 
resolved the matter. I neither negotiated nor approved that settlement.

    Question 15. If confirmed as General Counsel, the designated agency 
ethics official will report to you. Please describe how you will handle 
potential violations of Federal ethics rules by employees of the 
Department. Do you commit to allowing the Department's ethics officials 
and attorneys, including the Designated Agency Ethics Official, make 
independent evaluations and determinations of conflicts of interest 
matters?
    Answer 15. If confirmed, I will work with the Department's 
Designated Ethics Official to handle any potential ethics violations by 
employees of the Department in the same manner I would for any other 
rule violation by an employee of the Department, and I commit to 
following the proscribed procedures and protocols for handling such 
matters. I will encourage Department employees to seek guidance from 
the Department's ethics officials regarding Federal ethics rules and 
for conflict of interest matters.

    Question 16. In your hearing you stated that you believed 
complaints were a relevant tool for a regulatory and oversight work by 
government agencies. If confirmed, you will help to oversee the U.S. 
Department of Education's enforcement activities. Do you commit to 
utilize the Department's student complaint system, including individual 
student complaints, as a tool in the Department's investigatory and 
program review work?
    Answer 16. I can commit to you that if confirmed I will review all 
the tools available within the Department of Education and consider 
each in carrying out my role as General Counsel in providing advice and 
counsel to the Secretary.

    Question 17. In your opinion, what are the specific advantages of 
the Department's negotiated rulemaking process as required by and 
described in Section 492 of the Higher Education Act?
    Answer 17. It would not, at this time, be appropriate for me to 
comment on the advantages and disadvantages of a process required by 
statute and one the Department of Education is required to carry out. 
If confirmed I look forward to providing the best advice and counsel I 
can regarding issues that may come before me as a result of the 
negotiated rulemaking process.

    Question 18. The Federal Government spends approximately $130 
billion per year in Federal student aid through grants and loans to 
colleges and universities under the Higher Education Act. Given the 
ongoing efforts to roll back protections against poorly performing 
career training programs, and pathways for defrauded borrowers to 
receive loan forgiveness, what do you believe that the U.S. Department 
of Education can do differently or better to ensure colleges are 
accountable for the taxpayer dollars they receive?
    Answer 18. If confirmed, I will do my best to give the Department 
sound legal advice as it carries out this important aspect of its 
mission.

    Question 19. The Office of General Counsel plays an important role 
in overseeing the Department's work to hold colleges accountable, 
including approving the agency's investigations into colleges and 
universities. What would you advise the Secretary to do if the 
Department receives evidence that a school has engaged in unfair, 
deceptive, or abusive acts or practices from a State or other Federal 
agency?
    Answer 19. It would not be appropriate, at this time, for me to 
render an opinion on statements for which I do not have all the 
relevant facts. Each case would need to be evaluated fully on its own 
merits based on its own facts. At that point, and after consultation 
with my team, I will provide the best advice and counsel possible to 
the Secretary.

    Question 20. Under the Higher Education Act, the Secretary is 
permitted to limit, suspend, or terminate the participation in any 
financial aid program, or impose a civil penalty, whenever the 
Secretary has determined that an institution has violated to carry out 
any statutory or regulatory requirement for the use of Federal 
financial aid dollars. How would you advise the Secretary if your 
office received evidence that a school had violated the Higher 
Education Act or its Program Participation Agreement?
    Answer 20. It would not be appropriate, at this time, for me to 
render an opinion on statements for which I do not have all the 
relevant facts. Each case would need to be evaluated fully on its own 
merits based on its own facts. At that point, and after consultation 
with my team, I will provide the best advice and counsel possible to 
the Secretary.

    Question 21. The Administrative Procedures Act governs the way in 
which administrative agencies of the Federal Government may propose and 
establish regulations. It has been called ``a bill of rights for the 
hundreds of thousands of Americans whose affairs are controlled or 
regulated'' by Federal Government agencies. In your legal opinion, once 
a rule has been promulgated, how should an agency go about changing 
that rule?
    Answer 21. In my legal opinion, agencies should follow all 
applicable laws, including the Administrative Procedure Act, when 
seeking to change a rule.

    Question 22. The Department is currently processing debt relief 
claims from students defrauded by their institution under its current 
authority to relieve borrowers of their obligation to repay a loan if 
``any act or omission of the school attended by the student would give 
rise to a cause of action against the school under applicable State 
law.'' If two borrowers are similarly situated--they attended the same 
program in the same State at the same time, they both allege that their 
school broke the law, and the Department has evidence that the school 
engaged in unlawful activity, would both borrowers receive a discharge, 
and would both borrowers receive the same amount of discharge?
    Answer 22. It would be inappropriate for me to comment on this 
matter without knowing all of the specific facts and circumstances.

    Question 23. Do you believe that student loan borrowers, should 
receive loan forgiveness when there is evidence of systemic 
misrepresentation, deception and fraud by a campus or an institution?
    Answer 23. I believe that student loan borrowers may be eligible 
for borrower defense to repayment forgiveness of Federal student loans 
that they took out to attend a school if that school misled the 
borrower, or engaged in other misconduct in violation of certain State 
laws.

    Question 24. Section 455(h) of the Higher Education Act provides 
the Department with the authority to specify in regulation ``which acts 
or omissions of an institution of higher education a borrower may 
assert as a defense to repayment of a loan.'' The Department is 
currently choosing to enforce a 1994 implementing regulation which 
permits borrowers to receive a discharge if ``any act or omission of 
the school attended by the student would give rise to a cause of action 
against the school under applicable State law.'' In your opinion as an 
attorney do you believe that the Higher Education Act guarantees 
defrauded students the right to have their entire loan discharged?
    Answer 24. In my opinion as an attorney, student loan borrowers may 
be eligible for borrower defense to repayment forgiveness of Federal 
student loans that they took out to attend a school if that school 
misled the borrower, or engaged in other misconduct in violation of 
certain State laws.

    Question 25. Under Section 455(h) of the Higher Education Act is it 
your legal opinion that a successful defense to ``repayment of a loan'' 
could be interpreted to mean any partial benefit, restoration, or 
discharge that does not relieve the borrower of the entire outstanding 
balance of the loan?
    Answer 25. It is my legal opinion that student loan borrowers may 
be eligible for borrower defense to repayment forgiveness of Federal 
student loans that they took out to attend a school if that school 
misled the borrower, or engaged in other misconduct in violation of 
certain State laws.

    Question 26. Corinthian Colleges, Inc. was one of the largest 
collapses of an institution of higher education in United States 
history. They refused to comply with U.S. Department of Education 
requests for data on job placement data and, in November 2015, 
investigations by attorneys general in California and Massachusetts 
later found evidence of widespread falsification of job placement rates 
and other problems. For example, they found that Everest University 
Accounting Associate Degree at Brandon had a posted placement rate 92 
percent, but an actual placement rate of 12 percent. In another 
example, Everest University Computer Information Sciences Associate 
Degree at Brandon had a posted placement rate 62 percent, but an actual 
placement rate of 13 percent. Would you advise the Secretary to shut 
off access to taxpayer dollars for schools that have misrepresented 
students? job prospects?
    Answer 26. It would not be appropriate for me to provide my opinion 
on a matter before my potential future client. If confirmed, I look 
forward to working with the Secretary on these issues, providing advice 
and counsel as to what the law requires and what options are available 
to make these types of decisions.

    Question 27. The Department, particularly the Office of Federal 
Student Aid, awards nearly $1 billion in taxpayer-funded contracts to 
student loan servicers and debt collectors on an annual basis. These 
contracts have been the subject of considerable controversy. For 
example, the U.S. Department of Justice and the Federal Deposit 
Insurance Corporation found Sallie Mae (now Navient Corporation) to be 
in violation of the Servicemembers Civil Relief Act by overcharging 
military families on their student loans, and later settled with the 
company over these allegations. Department contracts require 
contractors to comply with all Federal and State laws. When a Federal 
or State regulator finds wrongdoing by a Department contractor, will 
you commit to holding the Department responsible for following through 
with all necessary actions, including holding a hearing to collect 
comment on whether the contract should be terminated, and if 
terminated, to vigorously defend the Department in any subsequent 
lawsuits?
    Answer 27. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation. I will 
advise the Department to take all legally necessary actions, and I will 
do my part to vigorously defend the Department as necessary in all 
legal matters.

    Question 28 You indicated in your meeting with me that you are a 
``fan of Secretary DeVos,'' Over the past few months, the Secretary has 
made it clear that she intends to roll back existing Title IX guidance 
related to sexual assault. Do you support removing Title IX guidance, 
including guidance clarifying protections for transgender students? If 
not, which policy proposals that she has put forth do you find 
admirable?
    Answer 28. I admire Secretary DeVos's longstanding commitment to 
improving the educational opportunities available to all students. In 
the letter rescinding the 2016 transgender guidance and in her 
accompanying statement last February, Secretary DeVos stated that the 
Department rescinded the guidance because it was procedurally improper 
due to the lack of notice to the public and opportunity for comment and 
emphasized that the rescission of that guidance in no way diminishes 
the Department's commitment to protecting all students from harassment 
and bullying and to promoting education environments that support and 
meet the needs of all students. The same holds true for the Title IX 
sexual assault guidance. If confirmed, I will work to ensure that OCR 
continues to fulfill its mission of vigorous civil rights enforcement.

    Question 29. How has your work in the Title IX space informed your 
approach to the value of clear, consistent guidance from the 
Department?
    Answer 29. The institutions I have represented take the 
Department's guidance seriously, and to that extent clarity and 
consistency are of course beneficial. That said, it is well known that 
there has been a lively public debate over the substance of the 
Department's Title IX guidance and over whether that guidance was 
promulgated in a manner consistent with the APA.

    Question 30. Do you believe you have a duty to survivors of sexual 
assault to hear from them to help inform your role as General Counsel 
if you are confirmed?
    Answer 30. Without question, the interests and experiences of 
survivors of sexual assault deserve careful consideration when 
formulating policy in this area.

    Question 31. As General Counsel, would you have a duty to 
proactively inform the Secretary of any potential harm to individuals 
that you see as a result of potential actions by the Department or is 
your role solely to respond to questions of whether an action is 
legally permissible?
    Answer 31. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, 
including advising the Secretary of any legal harms that might result 
from potential actions by the Department.

    Question 32. Based on your experience working with Florida State 
University, would allowing schools to have different standards for 
reviewing Title IX complaints make understanding what the Department 
expects from schools in terms of complying with Title IX more or less 
complicated?
    Answer 32. I cannot answer that question in the abstract. Were the 
Department to recognize more flexibility in this area for schools, an 
important question would be the clarity of the boundaries to be imposed 
on the schools' discretion.

    Question 33. Do you believe it is legally permissible to require 
schools use a preponderance of evidence standard to respond to Title IX 
complaints related to sexual violence?
    Answer 33. It would not be appropriate for me to provide my opinion 
on a matter that is pending before my potential future client. If 
confirmed, I look forward to working with the Secretary on this issue.

    Question 34. Do you believe it is legally permissible for the 
Department to inform Members of Congress of information that is being 
shared with the public?
    Answer 34. Generally, yes, in instances where the information has 
already been appropriately shared with the public under authorized, 
proper authority, such as, for example, when agency records are 
producedrsuant to a request under the Freedom of Information Act or 
when information is posted on the Department website or other 
authorized location published by the Department.

    Question 35. What is your opinion about whether minority members of 
the Health, Education, Labor, and Pensions (``HELP'') Committee have 
the authority to conduct oversight of the Department of Education?
    Answer 35. I respect the oversight responsibilities of each Member 
of Congress and the corresponding need for information to fulfill their 
legislative duties. Should I be confirmed, I will be as prompt and 
responsive as possible to congressional oversight requests from members 
of the Health, Education, Labor, and Pensions Committee regardless of 
party or leadership position.

    Question 36. If confirmed, do you agree to provide briefings on 
Department of Education business to members of the HELP Committee, 
including minority members, if requested?
    Answer 36. If confirmed, I will work with my colleagues in the 
Office of Legislation and congressional Affairs to ensure 
responsiveness to any briefing requests from members of the HELP 
Committee regardless of party or position, whenever participation by 
the Office of General Counsel is requested or appropriate.

    Question 37. If confirmed, do you commit to answer promptly any 
letters or requests for information from individual members of the HELP 
Committee including request for Department of Education documents, 
communications, or other forms of data?
    Answer 37. If confirmed, I will, to the best of my ability in my 
role as General Counsel, respond in a timely manner to requests for 
information, data, and other communications from members of the HELP 
Committee regardless of party or leadership position.
  Responses by Carlos G. Muniz to Questions of Senator Bernard Sanders
        Federal student loan debt
    The total amount of Federal student loan debt is $1.3 trillion, 
exceeding credit card debt and car loan debt. Students on average 
graduate with debt of $30,000. On the campaign trail, President Trump 
promised to address the crisis of student loan debt, lower interest 
rates, and make loan repayment affordable.

    Question 1. As general counsel, what is your role in affecting the 
sorts of policies needed to make good on the President's promise to 
students and those with student loan debt?
    Answer 1. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, not to 
create policy. I will defer to policymakers on that point.

    Question 2. What specific policies will you advocate for to the 
Secretary so that students and families see relief on their student 
loans?
    Answer 2. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, not to 
create or advocate for a particular policy. I will defer to 
policymakers on that point.

    Question 3. Do you believe that the amount of student loan debt is 
a crisis that the Department should have an active role in addressing? 
What role can the Department, and you specifically in your role as 
general counsel, play to address student loan debt by working with 
colleges on affordability?
    Answer 3. While there are obvious and founded concerns regarding 
the issue of student debt, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation and not 
to create policy. I will defer to policymakers on that point.

    Question 4. It makes no sense that in this country, you can 
refinance your car loan or home mortgage, but you cannot refinance your 
student loans. I have introduced legislation that allows borrowers to 
do just that, and I have supported my colleagues in their efforts to 
assist borrowers with crushing debt. Do you support borrowers? ability 
to refinance their student loans with the Department of Education?
    Answer 4. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation and not 
to create policy. I will defer to policymakers on that point.

        College Affordability
    In the 21st century, a public education system that goes from 
kindergarten through high school is no longer good enough. If this 
country is to succeed in a highly competitive global economy and have 
the best-educated workforce in the world, public colleges and 
universities must become tuition-free for working families. Today, we 
should be encouraging Americans to get the type of education best 
suited for entering or reentering the workforce, not punishing them 
with a mountain of debt.

    Question 5. Do you believe that the Federal Government should 
invest in students and tackle the student loan crisis head-on? What 
would that investment look like, and how can the department's policies 
result in better investment in the type of workforce needed for the 
21st century?
    Answer 5. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, not to 
create policy. I will defer to policymakers on that point. It would 
not, at this time, be appropriate for me to render my opinion about 
actions I think the Department should or should not take or what impact 
such hypothetical actions may have.

    Question 6. Do you believe that the cost shouldn't be a barrier to 
earn a college degree? What can we be doing to ensure that a college 
education isn't something accessible for the wealthy few, or that 
students aren't faced with a lifetime of crippling debt, just for 
pursuing an education?
    Answer 6. The American system of postsecondary education provides a 
multitude of choices for students. Those options are important to 
ensure access is available for all. However, my role as General Counsel 
will be to provide advice and counsel on matters of legal 
interpretation and not to create or advocate for a particular policy. I 
will defer to policymakers on that point.

    Question 7. Please speak to the critical importance of the Federal 
TRIO programs. These programs provide critical services to low-income, 
first-generation students and underrepresented high school and college 
students. As general counsel, how will you focus your efforts on 
outreach to first generation students and those from communities 
underrepresented on college campuses?
    Answer 7. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, not to 
create or advocate for a particular policy or to provide specific 
outreach to students.

        Diversity and Inclusion
    Schools and universities need to be inclusive environments, where 
all students are able to feel safe and welcome, to see themselves in 
the curriculum, and to be equipped to succeed.

    Question 8. As general counsel, what department policies will you 
advocate for to ensure that students of color feel safe in schools and 
on college campuses?
    Answer 8. If confirmed, I will work to ensure that the Department 
vigorously enforces Title VI of the Civil Rights Act, and I will 
provide legal advice to the Office for Civil Rights as it ensures that 
educational institutions that receive Federal funds comply with their 
legal responsibilities regarding students of color.

    Question 9. What will you do to combat racism and other forms of 
bigotry in schools and on college campuses?
    Answer 9. If confirmed, my role as General Counsel will be to 
provide legal advice to the Secretary and the Department's Office for 
Civil Rights concerning legal matters and enforcement actions under 
Title VI against educational institutions that receive Federal funds. I 
will work to ensure that the Department vigorously enforces the 
Department's responsibilities in this important area.

    Question 10. What specific actions will you take as general counsel 
to ensure schools and colleges are places that promote diversity and 
inclusion?
    Answer 10. If confirmed, my role as General Counsel will be to 
provide legal advice and counsel on matters of legal interpretation, 
not to create policy. I would defer to policymakers in this area, 
although I will work to ensure that the Department vigorously enforces 
the civil rights laws under its purview.

    Question 11. How will you ensure students of all faiths are 
supported in public schools and universities? Recent incidences of hate 
crimes occurring on campuses across this country are alarming. What 
tools is the department implementing in schools and on college campuses 
to eliminate these instances?
    Answer 11. If confirmed, my role as General Counsel will be to 
provide legal advice and counsel on matters of legal interpretation, 
not to create policy. I would defer to policymakers in this area, 
although I will work to ensure that the Department vigorously enforces 
the civil rights laws under its purview. It would not be appropriate 
for me to provide my opinion on a matter before my potential future 
client.

    Question 12. What specifically is the department doing to provide 
safe spaces in schools and root out instances of LGBTQ students being 
bullied?
    Answer 12. If confirmed, my role as General Counsel will be to 
provide legal advice and counsel on matters of legal interpretation, 
not to create policy. I would defer to policymakers in this area, 
although I will work to ensure that the Department vigorously enforces 
the civil rights laws under its purview. It would not be appropriate 
for me to provide my opinion on a matter before my potential future 
client.

    Question 13. Can you point to specific examples in your background 
where you have worked to promote diversity, inclusion, or have curbed 
bullying in schools?
    Answer 13. I have assisted clients with Title IX compliance 
generally, and Title IX compliance touches on the issues of diversity, 
inclusion, and bullying.

        Support for MSIs, HBCUs, and TCUs Minority Serving 
        Institutions, such as HBCUS, TCUs, HSIs, and AANAPISIs, play a 
        pivotal role in providing high quality postsecondary education 
        to students of color and helping us achieve our goal to lead 
        the world in college graduates. They enroll more than 5 million 
        students a year, many who have overcome significant barriers to 
        get to college.

    Question 14. Are you familiar with these institutions and how will 
you, as general counsel, make sure the Department continues to support 
these institutions?
    Answer 14. I am familiar with these institutions; however in my 
capacity as General Counsel, my role will be to provide advice and 
counsel on matters of legal interpretation, not to create policy. I 
will defer to policymakers on that point.

    Question 15. How will you advise the Secretary to make sure 
students who attend these institutions are able to complete their 
degrees in a timely fashion without taking on burdensome debt?
    Answer 15. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, not to 
create policy. I will defer to policymakers on that point.

    Question 16. What will you do to ensure that the students they 
serve succeed and thrive in college and in the job market post-
graduation?
    Answer 16. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, not to 
create policy. I will defer to policymakers on that point.
       Responses by Carlos G. Muniz to Questions of Senator Casey
    1. Mr. Muniz, according to the U.S. Department of Education 
National Center for Education Statistics, there are approximately 50.7 
million children in the United States attending public schools, 
approximately 90 percent of all children attend school in one of the 
almost 100,000 public schools in the over 13,000 public school 
districts in the country. Sec. DeVos, is a huge supporter of school 
vouchers and ``transportability'' of public funds to be used in private 
schools. She and the President have talked about creating a $20 billion 
school voucher program. The two largest Federal sources of funding for 
preK-12 schooling are Titles I and II of the Elementary and Secondary 
Education Act and the Individuals with Disabilities Education Act. 
Those two laws were passed by Congress to specifically make it possible 
for local public school districts to better serve children from poorer 
communities and children with disabilities. Those two programs also 
account for annual Federal spending exceeding $20 billion a year.
    Question a. With Sec. DeVos' and the President's expressed interest 
to create a Federal school voucher program, I want to ask your legal 
opinion about the use of those funds. As General Counsel to the 
Secretary of Education, what will your guidance be about using ESEA 
Title I and Title II funds or IDEA funds to create a voucher program?
    Answer a. It would not be appropriate for me to provide my opinion 
on a matter before my potential future client. If confirmed, I look 
forward to working with the Secretary on these issues.
      Responses by Carlos G. Muniz to Questions of Senator Bennet
    Question 1. ESSA created the Education Innovative and Research 
Grant (EIR) to support promising educational programs and study their 
effectiveness. The administration's fiscal 2018 budget allocated $250 
million of EIR funding to be spent on private school choice. During 
your question and answer session, you declined to comment on the 
legality of this proposal, saying you had not researched the issue 
thoroughly. Now that you've had additional time to review ESSA and the 
budget proposal, is it your legal opinion that the EIR can be used for 
private school vouchers? Will you commit to advising the Secretary that 
the congressional intent of the program was not to fund private school 
choice?
    Answer 1. It would not be appropriate for me to provide my opinion 
on a matter before my potential future client. If confirmed, I look 
forward to working with the Secretary on these issues.

    2. During your nomination hearing, you stated that the Department 
of Education has been clear that ``all students have a right to be free 
from sex discrimination from any school that receives Federal funds.''
    Question a. Do you believe Title IX prohibits discrimination on the 
basis of sexual orientation and gender identity?
    Answer a. It would not be appropriate for me to take a position on 
these issues, which are contested, are under active litigation in the 
courts, and are under consideration by my potential client. If 
confirmed, if and when I am called upon to give legal advice on these 
issues, I will give my best advice based on the law as it stands at the 
time.

    Question b. In your legal opinion, can schools that discriminate on 
the basis of sexual orientation--for example, by refusing to hire gay 
teachers--receive Federal funds under a potential private school 
voucher program?
    Answer b. Currently there is no such program. If such a program 
were to come into existence, I would do my best to advise the 
Department as to all the laws governing the program, including any 
requirements imposed on the program by Congress.

    3. During your career as a private attorney, you defended Florida 
State University in a lawsuit brought by a victim of sexual assault. 
Presumably, you became very familiar with Title IX regulations and the 
school's disciplinary procedures.
    Question a. Do you believe that FSU's disciplinary process for 
sexual assault claims was or is unfair to the accused?
    Answer a. During my representation of Florida State University, it 
was apparent to me that that institution takes seriously and attempts 
to honor the rights of both alleged victims and respondents in sexual 
assault cases.

    Question b. In July, acting assistant secretary for civil rights 
Candice Jackson stated that ``90 percent'' of sexual assault 
accusations ``fall into the category of 'we were both drunk, we broke 
up, and 6 months later I found myself under a Title IX investigation.'' 
Do you agree with that assessment that the majority of Title IX 
investigations are illegitimate or overblown?
    Answer b. No. Each complaint should be investigated and adjudicated 
on its own merits.

    Question c. Secretary DeVos recently stated that the 2011 Title IX 
guidance ``weaponized the Office of Civil Rights to work against 
schools and students.'' FSU was under an OCR investigation during your 
time as their attorney. Please describe your experience with the OCR 
investigation. Did you believe it was appropriate? Do you agree with 
Secretary DeVos' statement about the OCR?
    Answer c. It would not, at this time, be appropriate for me to 
comment on an open investigation, particularly one involving a former 
client and being carried out by a potential future client.

    Responses by Carlos G. Muniz to Questions of Senator Whitehouse
    In June 2017, Secretary DeVos announced she was re-opening the 
rulemaking process on both the borrower defense rule describing it as 
``a muddled process that's unfair to students and schools.'' The 
Department's announcement also stated that, ``While negotiated 
rulemaking occurs, the Department will continue to process applications 
under the current borrower defense rules.'' According to the Department 
in a July 7, 2017 response to Senator Durbin:
          Overall 96,944 claims have been received.
                Y  31,773 borrower claims have been approved; 26,372 of 
                the approved claims have been completed, 5,401 are in 
                progress and 2 were denied.
          65,169 claims are currently pending review, decision, 
        or adjudication.
                Y 45,092 pending claims are associated with students 
                who attended Corinthian
                Y 7,186 pending claims are associated with students who 
                attended ITT
                Y 12,891 from other schools
          ED received 14,949 claims since January 20, 2017. 
        According to the letter, ``No borrower defense applications 
        have been approved between January 20, 2017, and today [July 
        7].''
    Question 1. What legal obligation does ED have under the APA and 
HEA to enforce a current, final rule before it finalizes a new rule on 
an issue?
    Answer 1. If I am confirmed as General Counsel, I will advise that 
the Department follow all applicable laws with respect to the 
enforcement of regulations.

    Question a. Given that the current borrower defense rules provide 
for automatic discharge of student loans for certain closed schools--a 
situation which covers at least 52,000 of the pending claims--and that 
no borrower defense applications were approved between the Inauguration 
and early July; does it appear that the Department is processing claims 
under the current borrower defense rule?
    Answer a. It would not be appropriate for me to comment on ongoing 
matters involving the Department's processing of claims.

    Question 2. What specific steps would you recommend the Department 
take if the Department was failing to enforce a final rule?
    Answer 2. Without the relevant facts, I cannot comment on specific 
steps I would advise be taken.

    Question 3. Do you think that mandatory, pre-dispute arbitration 
clauses present a barrier to consumers obtaining group relief?
    Answer 3. Arbitration may or may not be beneficial depending on the 
situation. If I am confirmed as General Counsel, I will review this and 
other legal issues relating to borrower defenses to repayment of 
student loans closely. As this is one of many issues currently under 
review by the Department, it would not be appropriate for me to provide 
my opinion on this matter. I look forward to working with the Secretary 
on these issues.

    Question 4. Do you commit to ensuring that the Department of 
Education responds to oversight requests from all Members of Congress, 
including those in the minority?
    Answer 4. Responding to all oversight requests from Congress, 
regardless of party or leadership position, is a responsibility that 
each agency must take seriously. Should I be confirmed, I commit to 
being as responsive as possible to congressional oversight requests.

    Question 5. How important is it for the Department to respond to 
FOIA requests in a timely manner?
    Answer 5. Responding to requests for information under the Freedom 
of Information Act is a responsibility that each agency must take 
seriously.

    Question a. If confirmed in this position, what specific steps will 
you take to ensure the Office of General Counsel does not unduly delay 
the processing of FOIA responses?
    Answer a. Until I am confirmed and have consulted with Department 
officials on the Department's FOIA processes, I cannot State what 
further steps I would take regarding the Department's processing of 
FOIA requests.
      Responses by Carlos G. Muniz to Questions of Senator Baldwin
    In your interview with staff, you indicated that one of your 
clients is Career Education Corporation, a for-profit college 
corporation with tens of thousands of students using Federal grants and 
loans. You also said that recusing yourself from working on issues 
affecting your former clients was a ``no brainer.''

        To be clear, what I referred to as a ``no brainer'' was my 
        commitment to recuse myself from any specific matter before the 
        Department if I had also worked on that same matter in private 
        practice (one example being the pending OCR investigation of 
        Florida State University involving Jameis Winston and Erica 
        Kinsman). As a general matter, if confirmed, I commit to 
        seeking and following the advice of the Department's Designated 
        Agency Ethics Official regarding any conflict of interest or 
        recusal issue that arises during my tenure at the Department.

    Question 1. Did you have any other education-related clients who 
may have business before the Department of Education? If so, please 
provide a list.
    Answer 1. My education-related clients at McGuireWoods have been 
Florida State University, the University of Florida, Career Education 
Corp., McGraw-Hill Education, and ACT. My work for McGraw-Hill and for 
ACT was minimal (less than 3 hours for each client), took place 
entirely in 2014, and did not involve the U.S. Department of Education. 
The McGraw-Hill matter involved Oklahoma State government, and the ACT 
matter involved Florida State government.
    In 2009 and 2010, while in private practice at Bancroft Associates, 
I performed legal work for Strayer University, a client of the firm.
    In 2003-2005, while in private practice at GrayRobinson, I 
performed legal work for the Florida Department of Education, a client 
of the firm.

    Question 2. Do you believe that employees of the Department should 
recuse themselves from working on regulations that will substantially 
impact their former client or former employers, especially when those 
rules determine where these companies can continue operating with 
taxpayer dollars?
    Answer 2. I believe that the Federal ethics laws address this 
matter, and all Department employees are required to and must comply 
with the Federal ethics laws.

    Question 3. If confirmed, how will you advise personnel at the 
Department who might have conflicts of interest to follow ethics 
protocols for recusals--both those that are required by law and the 
President's Executive Order, and to avoid any appearance of 
impropriety?
    Answer 3. If confirmed, I will advise Department personnel to 
follow the Federal ethics laws and guidance of the Department's 
Designated Agency Ethics Official for any actual conflicts of interest 
or appearances of a conflict of interest.
      Responses by Carlos G. Muniz to Questions of Senator Murphy
    Question 1. The General Counsel plays an important role in 
overseeing the Department's work to hold colleges accountable, 
including approving the agency's investigations into colleges and 
universities. Given your background working for a State attorney 
general, what is your view on the authority states have to enforce 
their own consumer protection laws in higher education, including 
whether to allow predatory colleges or universities or loan servicers 
to operate inside their borders?
    Answer 1. Having worked in a State attorney general office, I have 
great respect for the role of states in enforcing their consumer 
protection laws. States have the responsibility of enforcing their own 
consumer protection laws in higher education, except to the extent 
those laws are pre-empted by Federal education laws.

    Question 2. I am very concerned that the Department has stopped 
enforcing higher education accountability regulations and hired an 
enforcement chief who was formerly a senior executive at a large 
publicly traded for-profit college that just settled a $100 million 
fraud suit with the Federal Trade Commission. How should the Department 
approach enforcement and oversight work in higher education? Should it 
generally be deferential to the college, or to students? complaints?
    Answer 2. If confirmed, my role will be to advise the Secretary on 
what the law requires, including what options and tools the Secretary 
has to enforce the law and ensure compliance. I do not intend to advise 
the Secretary to be presumptively deferential to any party, except to 
the extent the law requires such deference.

      Responses by Carlos G. Muniz to Questions of Senator Warren
    Question 1. Are Title IV dollars taxpayer dollars? Describe your 
view on the Department of Education (ED)'s responsibilities when it 
comes to the use of taxpayer dollars, including dollars distributed 
under Title IV of the Higher Education Act?
    Answer 1. Yes, title IV dollars are taxpayer dollars; however, it 
would not be appropriate at this time for me to comment on matters 
relating to what the Department's responsibilities are in this or any 
other matter, other than to say that the Department must follow the 
law. Should I be confirmed, I will, in my role as General Counsel, 
provide advice and counsel on matters of legal interpretation and will 
not be in a policy development role.

    Question 2. Under what circumstance would you recommend the 
Secretary take administrative action against an institution of higher 
education?
    Answer 2. The circumstances, specific case, and a careful and 
thorough review of all evidence pertaining to that case are the bases 
on which I will make a decision as to how best to advise the Secretary.

    Question 3. Under what circumstances would you recommend the 
Secretary withhold or cease Title IV funding from an institution of 
higher education?
    a. Would such circumstances include:
          Northwestern Polytechnic University: Operated as a 
        Potemkin college that changed failing grades by hand and faked 
        classes when it was visited by regulators.\1\
---------------------------------------------------------------------------
    \1\ https://www.buzzfeed.com/mollyhensleyclancy/inside-the-school-
that-abolished-the-f-and-raked-in-the-cash?utm--
term=.deqjQ5OZW#.mrPb62WEy.
---------------------------------------------------------------------------
          FastTrain College: A college whose owner used exotic 
        dancers to recruit students and was sent to jail for committing 
        fraud in the Federal aid programs.\2\
---------------------------------------------------------------------------
    \2\ http://www.miamiherald.com/news/local/education/
article46253760.html.
---------------------------------------------------------------------------
          American Commercial College: A college sued by the 
        Department of Justice for lying about the percentage of its 
        revenue received from the U.S. Department of Education. 
        Following the suit, the college's owner was sentenced to 24 
        months in prison and ordered to repay $975,000 after pleading 
        guilty to theft of Federal financial aid.\3\
---------------------------------------------------------------------------
    \3\ https://www.justice.gov/usao-ndtx/pr/american-commercial-
colleges-inc-and-its-President-plead-guilty-Federal-charges.
---------------------------------------------------------------------------
          Anamarc College: A college that was raided by the FBI 
        in 2014 after an abrupt closure. Family members of the 
        college's owners were later sued and settled a lawsuit for 
        stealing more than $450,000 from the school.\4\
---------------------------------------------------------------------------
    \4\ http://www.elpasotimes.com/story/news/2015/10/23/anamarc-
embezzlement-lawsuit-bankruptcy-college/74485836/.
---------------------------------------------------------------------------
          Computer Systems Institute: A college that was denied 
        re-certification to participate in Federal student aid programs 
        in 2016 for falsifying job placement rates.\5\
---------------------------------------------------------------------------
    \5\ https://studentaid.ed.gov/sa/sites/default/files/csi-denial-
letter.pdf.
---------------------------------------------------------------------------
    Answer 3. The circumstances, specific case, and a careful and 
thorough review of all evidence pertaining to that case are the bases 
on which I will make a decision as to how best to advise the Secretary.

    Question 4. Are there examples where the previous Administration 
took administrative action or withheld Title IV funding where you 
believe that the actions were unjustified or exceeded appropriate 
authority? If so, please list those examples.
    Answer 4. It would not be appropriate for me to make judgments 
about decisions made by a previous administration, particularly without 
the benefit of full knowledge about the basis on which such decisions 
were made.

    Question 5. Are there examples where the previous Administration 
took such action, and you believe that doing so was justified and where 
you would recommend taking similar action? If so, please list those 
examples (2--3 examples).
    Answer 5. It would not be appropriate for me to make judgments 
about decisions made by a previous administration, particularly without 
the benefit of full knowledge about the basis on which such decisions 
were made.

    Question 6 Do you have any examples of instances when the previous 
Administration should have taken action, but didn't? If so, please list 
them.
    Answer 6. t would not be appropriate for me to make judgments about 
decisions made by a previous administration, particularly without the 
benefit of full knowledge about the basis on which such decisions were 
made.

    Question 7 Based on what you know in the public record, how would 
you evaluate how the previous Administration handled Corinthian?
    Answer 7. It would not be appropriate for me to make judgments 
about decisions made by a previous administration, particularly without 
the benefit of full knowledge about the basis on which such decisions 
were made.

    Question 8. Based on what you know in the public record, how would 
you evaluate how the previous Administration handled ITT Technical 
Institute?
    Answer 8. It would not be appropriate for me to make judgments 
about decisions made by a previous administration, particularly without 
the benefit of full knowledge about the basis on which such decisions 
were made.

    Question 9. How would you advise the Secretary if your office 
received clear evidence that a school had violated the Higher Education 
Act or its Program Participation Agreement?
    Answer 9. If the General Counsel's office were to receive any such 
information, I would first bring it to the attention of the unit within 
the Department responsible for regulating the institution at issue. My 
legal advice would necessarily depend on the law, regulations, 
policies, contract or other authority applicable to the facts and 
circumstances at issue.

    Question 10. How would you advise the Secretary if your office had 
or received clear evidence that a school made material and substantial 
misrepresentations to students?
    Answer 10. If the General Counsel's office were to receive any such 
information, I would first bring it to the attention of the unit within 
the Department responsible for regulating the institution at issue. My 
legal advice would necessarily depend on the law, regulations, 
policies, contract or other authority applicable to the facts and 
circumstances at issue.

    Question 11. Can you provide an example of a substantial 
misrepresentations from a college that would constitute fraud in your 
legal opinion?
    Answer 11. One example of substantial misrepresentation that comes 
to mind is presented in the Fasttrain Corporation case. I have attached 
key documents in that case for easy reference.

    Question 12. What penalties do you believe are appropriate for an 
institution of higher education is deliberately misleading students 
with inaccurate statistics or marketing?
    Answer 12. The circumstances, specific case, and a careful and 
thorough review of all evidence pertaining to that case are the bases 
on which I will make a decision as to how best to advise the Secretary.

    Question 13. What is your view of the Administrative Procedures Act 
(APA)? Once a regulation has been promulgated through the proper APA 
notice and comment process (and negotiated rulemaking, when 
appropriate), is that regulation considered law?
    Answer 13. The Administrative Procedure Act provides the relevant 
definition of the term ``rule'' in section 551, and prescribes the 
process for agencies to follow in issuing such rules in section 553. If 
I am confirmed as General Counsel, I will advise the Secretary to 
follow the provisions of the APA and other relevant laws in 
promulgating and implementing Department regulations.

    Question 14. In your legal opinion, does a Secretary have the legal 
authority to not enforce a regulation that has been properly 
promulgated? If so, in what specific circumstances is this legal?
    Answer 14. It would not be appropriate for me to opine on an 
enforcement issue without knowing all of the facts and circumstances.

    Question 15. Can the Secretary unilaterally delay implementation of 
an entire regulation that has been properly promulgated?
    Answer 15. It would not be appropriate for me to opine on an 
implementation issue without knowing all of the facts and 
circumstances.

        Question a. Parts of a regulation?
        Answer a. It would not be appropriate for me to opine on an 
        implementation issue without knowing all of the facts and 
        circumstances.

        Question b. Under what circumstances can the Secretary delay 
        the implementation of an entire regulation?
    Answer b. It would not be appropriate for me to opine on an 
implementation issue without knowing all of the facts and 
circumstances.

    Question 16. In negotiated rulemaking, if 90 percent of the 
rulemaking Committee agrees on 90 percent of the rule, but failed to 
reach consensus, in your legal view, how should the Department take 
that into consideration as it drafts the rule?
    Answer 16. It would not be inappropriate for me to comment on this 
matter without knowing the specific facts and circumstances.

        Question a. When drafting a rule after a failed negotiated 
        rulemaking session, is it legally appropriate for the 
        Department to diverge from the consensus view of particular 
        provisions that may have emerged during negotiated rulemaking?
        Answer a. It is my understanding that the Department conducts 
        negotiated rulemaking pursuant to relevant statutory 
        requirements, and I would advise the Secretary to follow such 
        requirements, including those pertaining to consensus 
        agreements reached by the negotiators and the issuance of 
        proposed rules.

    Question 17. What action would you recommend the Secretary take if 
you discovered that an employee of the Department violated Federal 
ethics laws?
    Answer 17. Without knowing the nature of the violation, the 
specific facts, and any relevant precedents, it is not possible to 
State in advance what my advice to the Secretary would be in such 
circumstances.

    Question 18. What is your understanding of ``particular matter'' 
versus a ``particular matter involving specific parties'' in Federal 
ethics law?
    Answer 18. In the absence of a formal ethics briefing by the 
Department's Designated Agency Ethics Official, I respectfully decline 
to speculate on the legal meaning and definition of those terms.

    Question 19. What constitutes, in your legal opinion, 'the 
appearance of impropriety??
    Answer 19. If confirmed, I will seek guidance from the Department's 
Designated Agency Ethics Official to determine how that legal term is 
defined under any applicable law, regulation, or policy.

    Question 20. How would you advise Department officials to avoid 
``the appearance of impropriety''?
    Answer 20. If confirmed, I will advise Department officials to seek 
out and follow guidance from the Department's Designated Agency Ethics 
Official concerning appearances of impropriety.

    Question 21. Beyond what may be required by law, what specific 
recusals will you commit to avoid ``the appearance of impropriety''?
    Answer 21. If confirmed, I will follow the Federal ethics laws and 
the guidance provided by the Department's Designated Agency Ethics 
Official pertaining to any appearance of impropriety.

    Question 22. Do you believe that your involvement at the Department 
on those matters of policy that affect CEC could create ``the 
appearance of impropriety''?
    Answer 22. If confirmed, I will follow the Federal ethics laws and 
guidance provided by the Department's Designated Agency Ethics Official 
that address appearances of impropriety.

    Question 23. Pursuant to President Trump's ``Ethics Commitment by 
executive branch Appointees'' Executive Order, you pledged to, for a 
period of 2 years, refrain from participating ``in any particular 
matter involving specific parties that is directly and substantially 
related to my former employer or former clients, including regulations 
and contracts.''\6\ Do you commit to recusing yourself from any matter, 
``including regulations and contracts,'' that is ``directly and 
substantially'' related to your former client Career Education 
Corporation (CEC)?
---------------------------------------------------------------------------
    \6\ https://www.whitehouse.gov/the-press-office/2017/01/28/
executive-order-ethics-commitments-executive-branch-appointees.
---------------------------------------------------------------------------
    Answer 23. If confirmed, I will abide by the requirement of the my 
ethics pledge, follow the guidance provided by the Designated Agency 
Ethics Official, including recusals, and work with the Designated 
Agency Ethics Official on an ongoing basis to ensure I am in compliance 
with all ethics rules and laws.

    Question 24. What is your understanding of the meaning of phrase 
``directly and substantially'' in this context?
    Answer 24. In the absence of a formal ethics briefing from the 
Department's Designated Agency Ethics Official, I respectfully decline 
to speculate on the legal meaning and definition of this term.

    Question 25. Please list any other former employers or clients, 
besides CEC, that provide educational services or own companies that 
provide educational services.
    Answer 25. My education-related clients at McGuireWoods have been 
Florida State University, the University of Florida, Career Education 
Corp., McGraw-Hill Education, and ACT. My work for McGraw-Hill and for 
ACT was minimal (less than 3 hours for each client), took place 
entirely in 2014, and did not involve the U.S. Department of Education. 
The McGraw-Hill matter involved Oklahoma State government, and the ACT 
matter involved Florida State government.

    In 2009 and 2010, while in private practice at Bancroft Associates, 
I performed legal work for Strayer University, a client of the firm.
    In 2003-2005, while in private practice at GrayRobinson, I 
performed legal work for the Florida Department of Education, a client 
of the firm.
    Question 26. If you are confirmed, the Department's agency ethics 
official will report to you. What steps will you take to ensure that 
the ethics official's decisions are and appear to be independent and 
are not and do not appear to be conflicted with your personal interests 
or those of the Secretary?
    Answer 26. If confirmed, I will work with the Department's 
Designated Ethics Official to handle any potential ethics violations by 
employees of the Department in the same manner I would for any other 
rule violation by an employee of the Department, and I commit to 
following the proscribed procedures and protocols for handling such 
matters.

    I will encourage Department employees to seek guidance from the 
Department's ethics officials regarding Federal ethics rules and for 
conflict of interest matters.

    Question 27. Would you ever overrule a decision or recommendation 
made by the agency ethics official regarding the recusal of a 
Department employee?

        a. If so, under what circumstances would this be appropriate, 
        and what would you do to avoid the appearance of impropriety in 
        such circumstances?
    Answer 27. In the absence of formal ethics briefing from the 
Department's Designated Agency Ethics Official, it is not possible to 
speculate or predict my decision on future and unknown legal matters 
that may be brought to my attention for review. If confirmed, I will 
work with the Department's Designated Ethics Official to address these 
matters in the same manner I would for any other brought to my 
attention for review, and I commit to following the proscribed 
procedures and protocols for handling such matters.

    Question 28. Do you believe that the Higher Education Act provides 
defrauded students the right to have their entire loan discharged?
    Answer 28. Under the Higher Education Act, student loan borrowers 
may be eligible for borrower defense to repayment forgiveness of 
Federal student loans that they took out to attend a school if that 
school misled the borrower, or engaged in other misconduct in violation 
of certain State laws.

    Question 29. In your hearing, in a response to a question from 
Senator Hassan, you stated that ``depending on the specific case, 
arbitration may or may not be beneficial'' for defrauded students 
seeking relief. If this is true, do you believe that schools should be 
permitted to force students into arbitration?
    Answer 29. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, not to 
create policy. I would defer to policymakers on that point.

    Question 30. Do you believe that defrauded students should have the 
choice to arbitrate or attempt litigation? If not, why not?
    Answer 30. If confirmed, my role as General Counsel will be to 
provide advice and counsel on matters of legal interpretation, not to 
create policy. On policy issues, I would defer to the policymakers.

    Question 31. Do you believe the Department has the legal authority 
to prohibit intuitions of higher education from forcing students into 
pre-dispute arbitration agreements?
    Answer 31. If I am confirmed as General Counsel, I intend to review 
this and other legal issues relating to borrower defenses to repayment 
of student loans closely. At this time, I have not formed an opinion.

    Question 32. If two borrowers are similarly situated--they attended 
the same program at the same time, and they both allege that their 
school broke the law, and the Department has clear evidence to 
corroborate the borrowers? allegations that the school engaged in 
unlawful activity, should both borrowers receive a discharge? Should 
the discharge be the same? If no, then why not? Under what 
circumstances would it be appropriate for these borrower to not receive 
the same relief?
    Answer 32. It would not be appropriate for me to comment on this 
matter without knowing all of the specific facts and circumstances.

    Question 33. Consider the two borrowers in question 34: if borrower 
A received a borrower defense discharge, is borrower B legally entitled 
to the same relief? Why or why not?
    Answer 33. It would not be appropriate for me to comment on this 
matter without knowing all of the specific facts and circumstances.

    Question 34. Consider the two borrowers in question 34: If Borrower 
A obtained a well-paying job, but Borrower B did not, are they still 
entitled to the same relief for the fraudulent loans?
    Answer 34. It would not be appropriate for me to comment on this 
matter without knowing all of the specific facts and circumstances.

    Question 35. Does the employment outcome of the borrower matter if 
they both paid for the same fraudulent product?
    Answer 35. It would not be appropriate for me to comment on this 
matter without knowing all of the specific facts and circumstances.

    Question 36. Is it legally appropriate for the Department to 
collect loans for which the Department has clear evidence that such 
loans were fraudulently made?
    Answer 36. Under the law, student loan borrowers may be eligible 
for borrower defense to repayment forgiveness of Federal student loans 
that they took out to attend a school if that school misled the 
borrower, or engaged in other misconduct in violation of certain State 
laws.

    Question 37. Is it legal for the Department to treat borrowers 
differently based on race? Gender? National origin? Religion?
    Answer 37. Section 421(a)(2) of the Higher Education Act bans 
discrimination on the basis of race, national origin, religion, sex, 
marital status, age, or handicapped status.

    Question 38. Under what specific circumstances is it legally 
appropriate for the Department to treat defrauded borrower A 
differently from defrauded borrower B? Under what specific 
circumstances specific circumstances is it legally appropriate for the 
Department grant borrowers A and B unequal protection under the law?
    Answer 38. It would not be appropriate for me to comment on this 
matter without knowing all of the specific facts and circumstances.

    Question 39. Can you please explain Attorney General Bondi's 
decision not to investigate Trump University?
        Question a. Were you involved in that decision?
                i. If not, were you aware that it was being made?
                ii. To your knowledge, who was involved?
        Answer a. Consistent with office practice for a matter of this 
        nature, career consumer protection staff determined how to 
        respond to any complaints involving Trump University, including 
        whether to open an investigation. I first learned from a media 
        inquiry in August 2013 that the New York attorney general had 
        sued Trump University. It was only as a result of the media 
        inquiry that I learned of the existence of Trump University and 
        of the Florida Attorney General's office's handling of any 
        complaints involving that entity or any other Trump-related 
        entity. Based on the facts and circumstances, I believed in 
        2013 that the office's handling of the matter was appropriate, 
        and I continue to believe that today.

        Question b. To your knowledge, what factors were considered in 
        the decision not to investigate Trump University?
        Answer b. To my knowledge, the office's handling of this matter 
        was based primarily on the following factors: the small number 
        of complaints received by the office (the office receives at 
        least 70,000 consumer complaints in a typical year); the fact 
        that Trump University had ceased operating in Florida in 2010; 
        and the fact that the New York lawsuit was seeking relief for 
        all allegedly harmed consumers, regardless of their State of 
        residence.

        Question c. When that decision was made, were you aware of 
        Donald Trump's campaign contributions to AG Bondi?\7\
---------------------------------------------------------------------------
    \7\ T3https://www.nytimes.com/2016/09/15/us/politics/pam-bondi-
donald-trump-foundation.html.
---------------------------------------------------------------------------
        Answer c. To the best of my recollection, I learned of the 
        political contribution when it was first reported in the press 
        in September or October 2013. To the best of my recollection, 
        the career consumer protection staff had already determined how 
        to handle the Trump University matter before the political 
        contribution was reported in the press.

        Question d. To your knowledge, was anyone else in the office 
        aware of those contributions?
        Answer d. I cannot speak to what others in the office might 
        have known about the political contribution or when they knew 
        it

        Question e. To your knowledge, were those contributions 
        discussed in the decisionmaking process?
        Answer e. To my knowledge, no.

    Question 40. Given your role in AG Bondi's office at the time of 
the decision not to investigate Trump University and Bridgepoint, do 
you believe that your involvement in matters of policy that materially 
and substantially affect those organizations could create the 
appearance of impropriety? If not, why not?
    Answer 40. To be clear, I am not aware of anyone in the Florida 
Attorney General's office deliberating whether to investigate 
Bridgepoint Education/Ashford University during my tenure in that 
office. Given the limited nature of my involvement in anything having 
to do with Trump University or Bridgepoint Education, I do not believe 
that my ``involvement in matters of policy that materially and 
substantially affect those organizations could create the appearance of 
impropriety.'' That said, if confirmed, I will seek and follow the 
advice of the Department's Designated Agency Ethics Official regarding 
any ethics issues, including issues involving an appearance of 
impropriety.

    Question 41. Please discuss your views on the role of Congress in 
conducting oversight of the Department of Education.
    Answer 41. I fully appreciate and respect the oversight 
responsibilities of Members of Congress, and in particular, the 
oversight role of the Department's Committees of jurisdiction and their 
corresponding need for information to fulfill their legislative duties. 
If confirmed I will, in my role, work with staff to ensure 
responsiveness to oversight requests.

    Question 42. In your confirmation hearing, you noted that you were 
unfamiliar with certain law enforcement matters by the Department of 
Justice, the Federal Trade Commission, and the Consumer Financial 
Protection Bureau where one of the Education Department's contracts was 
found to be engaged in misconduct. In 2014, the Federal Deposit 
Insurance Corporation and the Department of Justice found that Navient 
had violated the Servicemember Civil Relief Act, overcharging 78,000 
members of the military.\8\ The violations implicated private, FFEL, 
and Direct Loans. In a letter from the Department to the CFPB 
terminating certain law enforcement-related information sharing 
agreements, the Department wrote: ``The Department has full oversight 
responsibility for Federal student loans.''\9\
---------------------------------------------------------------------------
    \8\ https://www.justice.gov/opa/pr/justice-department-reaches-60-
million-settlement-sallie-mae-resolve-allegations-charging.
    \9\ https://edworkforce.house.gov/uploadedfiles/2017-09-01--
signed--letter--to--cfpb.pdf.
---------------------------------------------------------------------------
    In your confirmation hearing, you stated that you would respect the 
rights of Federal and State agencies to exercise their respective 
enforcement authorities. Do you disagree with the Department's 
assertion that it has ``full oversight responsibility,'' since it does 
not enforce all laws that companies like Navient must comply with?
    Answer 42. It would not be appropriate for me to comment on 
positions taken by the Department while I am not aware of all of the 
facts and circumstances.

    Question 43. In the past, ED's Office of General Counsel (OGC) 
attorneys have worked closely with other law enforcement agencies to 
enforce laws where ED has no jurisdiction, like Federal unfair, 
deceptive, abusive acts and practices laws, the False Claims Act, or 
the Servicemember Civil Relief Act, for example. Will you commit to 
recommending the Secretary maintain information and evidence sharing 
relationships with those agencies responsible for enforcing Federal 
laws for which they have jurisdiction--particularly when alleged 
violations involve an ED contractor or a Title IV participating 
institution of higher education?
        a. Under what circumstances would you recommend referring 
        evidence to the Department of Justice?
        b. The Consumer Financial Protection Bureau (CFPB)?
        c. The Federal Trade Commission?
    Answer 43. If I am confirmed as General Counsel, I will recommend 
that the Department continue its practice of sharing information and 
evidence as appropriate with Federal agencies responsible for law 
enforcement.

    Question 44. Does the CFPB, in your legal opinion, have the 
authority to enforce Federal consumer protection laws (including The 
Dodd--Frank Wall Street Reform and Consumer Protection Act and Fair 
Debt Collection Practices Act) on Federal student loan servicers and 
contractors?
    Answer 44. I have not reviewed the CFPB's legal authorities with 
respect to Federal student loan servicers and contractors but am 
looking forward to reviewing these issues if I am confirmed as General 
Counsel.

    Question 45. What is your view on enforcement of the False Claims 
Act (FCA)? What would you do if your office had evidence that an 
institution of higher education had violated the FCA in order to 
receive Title IV funds?
    Answer 45. It would not be appropriate for me to comment on this 
matter without knowing all of the specific facts and circumstances.

    Question 46. The Consumer Financial Protection Bureau, the Illinois 
Attorney General, and the Washington Attorney General have all sued 
Navient for a wide range of violations. Courts have rejected Navient's 
motions to dismiss. Can you clearly State that the CFPB and the states 
are well within their rights to bring enforcement actions under laws 
delegated to them by Congress and their State legislatures? Will you 
commit to ensuring that the Department will not seek to undermine 
investigations by Federal and State agencies?
    Answer 46. States have the responsibility of enforcing their own 
consumer protection laws in higher education, except to the extent 
those laws are pre-empted by Federal education laws. If I am confirmed 
as General Counsel, I will recommend that the Department continue its 
practice of sharing information and evidence as appropriate with 
Federal agencies responsible for law enforcement.

    Question 47. When the Department conducts oversight and prepares 
reports on schools and financial institutions, do you acknowledge that 
it is well within the bounds of the law for this information to be 
shared with other Federal and State agencies, especially when potential 
wrongdoing is detected?
    Answer 47. It would not be appropriate for me to comment on this 
matter without knowing all of the specific facts and circumstances.

    Question 48. Earlier this year, Secretary DeVos revoked memoranda 
that instructed procurement officials to closely consider the past 
performance, including regulatory infractions, when selecting 
contractors. How will you ensure that the Department is properly 
guarding against hiring of contracts with a history of breaking the 
law?
    Answer 48. It would not be appropriate for me to comment on 
positions taken by the Department while I am not aware of all of the 
facts and circumstances.

    Question 49. In 2009, the Education Department's Inspector General 
found that a subsidiary of Sallie Mae (now Navient) overcharged the 
Department by $22.3 million. Subsequently, the Department's staff 
concurred with this finding. Nearly 8 years later, the matter has still 
been unresolved. Why was Navient granted numerous appeals in this 
matter?
    Answer 49. As I do not work at the Department, I cannot comment on 
this matter.

    Question 50. If confirmed, will you commit in your first 90 days to 
recommending that Secretary issue a final order, offset other payments 
to Navient, or pursue payment in litigation?
    Answer 50. It would not be appropriate for me to comment on a 
matter that is currently the subject of pending litigation.

    Question 51. Navient recently announced the purchase of a large 
portfolio of loans owned by Wells Fargo, increasing its dominant share 
in the FFEL loan market. Do you believe the Department has the 
authority to block sales of FFEL loans?
    Answer 51. It would not be appropriate for me to comment on this 
matter without knowing all of the specific facts and circumstances.

    Question 52. In February 2015, the Department announced that it 
found violations of law by several student loan debt collectors. Many 
of these collectors sued the Department. As General Counsel, will you 
commit to vigorously defending the Department's right to wind down 
contracts due to poor performance or violation of law?
    Answer 52. In my capacity as General Counsel, I will advise the 
Department to take all legally necessary actions, and I will do my part 
to vigorously defend the Department as necessary in all legal matters.

    Question 53. As General Counsel, will you commit to personally 
providing regular briefings to the HELP Committee or any interested 
member office on ensuring compliance with Department contracts, 
especially those related to the Office of Federal Student Aid?
    Answer 53. If confirmed, I will work with my colleagues in the 
Office of Legislation and congressional Affairs to be responsive to any 
briefing requests from members of the HELP Committee or other 
congressional offices, whenever participation by the Office of General 
Counsel is requested or appropriate.

    Question 54. In your legal opinion, does an agency have the 
authority to promulgate non-regulatory guidance to clarify its thinking 
on an issue?
    Answer 54. Yes.

    Question 55. What is your opinion on negotiated rulemaking vs. 
traditional notice and comment rulemaking? at are the advantages and 
disadvantages of both?
    Answer 55. I believe that both negotiated rulemaking and 
traditional notice-and-comment rulemaking are valuable for obtaining 
public input on the development of regulations, and I look forward to 
advising the Department with regard to both processes should I be 
confirmed.

    Question 56. Do you believe that under the Higher Education Act, 
institutions of higher education that are currently unaccredited or 
seeking accreditation, which were previously accredited by ACICS, have 
only 18 months to find a new accreditor or lose access to Title IV 
dollars?
    Answer 56. It would not be appropriate for me to provide my opinion 
on a matter before my potential future client. If confirmed, I look 
forward to working with the Secretary on these issues.

    Question 57. Do you commit to recommending to the Secretary that 
the Department of Education follow the law and halt Title IV dollars to 
institutions (discussed in question 56) that are unable to find another 
accreditor by the end of the 18 month period?
    Answer 57. If confirmed, in my position as General Counsel I will 
provide advice and counsel on matters of legal interpretation. As I 
said during my confirmation hearing, the basis for my activity is 
following the rule of law. I have and will continue to advise my 
clients as such.
    If you have any questions, then please contact Josh Delaney in my 
office at (202) 224-4543.
       Responses by Carlos G. Muniz to Questions of Senator Kaine
    Question 1. Recently the Department of Education announced that it 
would begin a process to roll back rules to provide students with debt 
relief that were finalized last year. In the meantime, there are 65,000 
pending claims from students including 1,659 from my State of Virginia, 
none of whom have heard anything about their loans under this 
Administration. Many of the claims are from former students who were 
enrolled at colleges that don't even exist anymore. In your legal 
opinion, does the Department of Education have a responsibility to 
provide these students with a full discharge of their loans, according 
to the law? Do you commit to advising the Department to move swiftly to 
discharge these loans in full and clearing the backlog?
    Answer 1. It would not be appropriate for me to comment on this 
matter without knowing all of the specific facts and circumstances.

    Question 2. Title I of the Every Student Succeeds Act (ESSA) 
provides significant Federal funding to states to support public 
education. The law does not provide funding for students in private 
schools. Do you agree with this interpretation of the law? Secretary 
DeVos recently made statements encouraging states to effectively skirt 
the law in their ESSA State plans, would you advise the Secretary that 
Title I funds cannot be used for private school vouchers?
    Answer 2. It would not be appropriate for me to provide my opinion 
on a matter before my potential future client. If confirmed, I look 
forward to working with the Secretary on these issues.
      Responses by Carlos G. Muniz to Questions of Senator Hassan
     1. In your hearing I asked you about forced arbitration, which can 
prevent students from seeking legal redress to fraud and abuse through 
the courts. I find these practices very concerning.
        Question a. Will you work on behalf of students, former 
        students, and employees to provide them with a choice for how 
        they can file and pursue a complaint?
        Answer a. If I am confirmed as General Counsel, I intend to 
        review this and other legal issues relating to borrower 
        defenses to repayment of student loans closely.

        Question b When students are defrauded by their college, do you 
        believe they have a right to seek legal remedies in court?
        Answer b. If I am confirmed as General Counsel, I intend to 
        review this and other legal issues relating to borrower 
        defenses to repayment of student loans closely.

        Question c. Will you commit to looking into ending forced 
        arbitration in the for-profit education industry?
        Answer c. If I am confirmed as General Counsel, I intend to 
        review this and other legal issues relating to borrower 
        defenses to repayment of student loans closely.

    2. If confirmed, your role will be to act as an independent voice 
to ensure the Department of Education enforces Federal law. The Higher 
Education Act does not permit colleges and universities to mislead 
their students. I am interested to know how you will advise the 
Secretary to take action against institutions of higher education that 
mislead their students.
        Question a. In what specific ways do you think the Department 
        should hold bad actors accountable?
        Answer a. The circumstances, specific case, and a careful and 
        thorough review of all evidence pertaining to that case is the 
        basis on which I will make a decision as to how best to advise 
        the Secretary.

    3. Following Secretary DeVos? recent announcement, we know the 
Department is planning to release new guidance and enter into a 
rulemaking process around Title IX and sexual assault. If confirmed, 
part of your role as General Counsel will be to ensure that the 
Department of Education is enforcing Title IX. Survivors of sexual 
assault face enormous psychological and physical harm. A recent 
University of New Hampshire report found that survivors often face 
academic challenges. The report shows that survivors of a violent 
attack are more likely to drop classes, experience higher stress, and 
have lower academic efficacy.
        Question a.. Do you believe education institutions have an 
        obligation to work to protect their students from sexual 
        violence, [yes, or no]?
        Answer a. Yes.

        Question b. Do you believe in cases of alleged sexual violence 
        on campus that a lower standard of proof should be applied than 
        in criminal courts, [yes, or no]?
        Answer b. It would not be appropriate for me to provide my 
        legal opinion on a matter that is pending before my potential 
        future client prior to confirmation.

        Question c.If you had been at the Department, would you have 
        advised Secretary DeVos to remove existing guidance and release 
        new temporary guidance before opening a public rulemaking 
        process, [yes, or no]?
        Answer c. It would not be appropriate for me to provide my 
        legal opinion on a matter that is pending before my potential 
        future client prior to confirmation.

         Question d. Do you agree that announcing a rulemaking process 
        without making clear what guidance institutions are currently 
        under is problematic and confusing, [yes, or no]?
    Answer d. It would not be appropriate for me to provide my legal 
opinion on a matter that is pending before my potential future client 
prior to confirmation.

    4. According to reports, former Florida Attorney General Bill 
McCollum was actively considering adding his office to a multiState 
investigation against Bridgepoint Education. Attorney General Bondi 
later decided not to join this case.
        Question a. As a chief advisor to Ms. Bondi, what role did you 
        play in the decision to not join the investigation?
        Question b. What factors were considered in this decision not 
        to investigate Bridgepoint?
        Question c. Given what we know about how Bridgepoint's 
        practices have harmed students, do you think AG Bondi made the 
        wrong decision in not investigating Bridgepoint?
        Question d. What specific role did you play in that decision 
        not to investigate?
        Question e. Can you elaborate on the timeline of those 
        decisions?
         Answer. Although I am aware of the Assurance of Voluntary 
        Compliance entered between Bridgepoint Education, Inc./Ashford 
        University and the State of Iowa in May 2014, I am not 
        personally aware of any multiState investigation of 
        Bridgepoint/Ashford. Nor am I personally aware of any 
        deliberations of Attorney General McCollum regarding whether to 
        investigate Bridgepoint/Ashford. I am not aware of anyone in 
        the Florida Attorney General's office deliberating whether to 
        investigate Bridgepoint/Ashford during my tenure in that 
        office. I personally had no discussions with Attorney General 
        Bondi or with anyone else in the office about whether to 
        investigate Bridgepoint/Ashford. I left employment at the 
        Florida Attorney General's office as of January 1, 2014, and I 
        cannot speak to any Bridgepoint/Ashford-related deliberations 
        or discussions after that date.

    Question f. How will you make certain that you and other political 
appointees are receiving a balanced perspective on legal matters that 
appear before your office, and that you are not primarily being briefed 
by special interests that gain access to influence the Department?
    Answer f. If confirmed, I will become fully informed of the 
relevant law and facts before giving legal advice to any client within 
the Department, and I will expect all my colleagues in the office to do 
the same. My legal advice will not be unduly influenced by any outside 
person or entity.

    Question g. In your legal opinion, what constitutes ``the 
appearance of impropriety''?
    Answer g. If confirmed, I will seek guidance from the Department's 
Designated Agency Ethics Official to determine how that legal term is 
defined under any applicable law, regulation, or policy.

    Question h. If you are confirmed, in what ways would you advise 
Department officials to avoid ``the appearance of impropriety``?
    Answer h. If confirmed, I will advise Department officials to seek 
and follow guidance from the Department's Designated Agency Ethics 
Official concerning appearances of impropriety.

    Question i. What recusals will you commit to in order to avoid 
``the appearance of impropriety''?
    Answer i. If confirmed, I will follow the Federal ethics laws and 
the guidance provided by the Department's Designated Agency Ethics 
Official pertaining to any appearance of impropriety.
       Responses by Carlos G. Muniz to Questions of Senator Young
    Question 1. I recognize the challenges in our workforce today, and 
have spoken in depth on the skills gap and ensuring that educational 
and employment opportunities are provided to those who seek them. I 
would like to highlight the good work of an organization in my home 
State and make you aware of an issue they have been facing with a 
Department of Education definition on ``competitive integrated 
employment''. Bosma Enterprises is a nonprofit organization located in 
Indianapolis, Indiana and is a leading resource for Hoosiers affected 
by blindness. Bosma Enterprises provides job training and employment 
opportunities for blind and visually impaired individuals. Currently, 
70 percent of people who are blind or visually impaired are unemployed.
    I would like to bring your attention to rules that were finalized 
by the Department of Education after the passage of the Workforce 
Innovation and Opportunity Act (WIOA). WIOA requires all placements for 
vocational rehabilitation (VR) to be determined on a case-by-case 
basis. The final rule regarding VR was issued by the Rehabilitation 
Services Agency under the Department of Education. This rule stated 
that nonprofits like Bosma are unlikely to provide employment 
opportunities in integrated work settings. This prompted vocational 
rehabilitation agencies to notify some nonprofits that their job 
placements will not be considered successful. Currently 19 states have 
made blanket determinations, and many could follow suit. This 
interpretation has implications for nonprofit entities like Bosma 
Enterprises that do a great job in finding adequate and individualized 
job placement opportunities. I believe we should be working to invest 
in our workforce and empower organizations that are effective, and not 
place onerous requirements that hinder good actors.
      What is your brief assessment of challenges facing the 
workforce? Is there a role for the Department of Education in providing 
clarity on this issue?
    Answer 1. I agree that individuals with disabilities encounter 
significantly greater challenges in securing employment. I believe the 
Department has a role to play in providing clarity on these issues. On 
June 22, 2017, the Department published a Federal Register notice to 
provide members of the public the opportunity to submit comments 
concerning regulations and policy guidance they recommend the 
Department repeal, replace or modify. The WIOA regulations which you 
reference are included in that review. The comment period for that 
review just closed on September 20th. If confirmed I look forward to 
working on the next steps in the regulatory review process in my 
capacity as General Counsel.
      If confirmed as General Counsel for the Department of 
Education, do you commit to working with me on this issue in the 
future?
    If confirmed, I look forward to working with you on this issue at 
the Department alongside my colleagues in my capacity as General 
Counsel.
       Responses by Janet Dhillon to Questions of Senator Murray
    Question 1. Do you agree that employee access to information about 
pay within a workplace is critical to helping employees determine 
whether they are being paid less than their peer for discriminatory 
reasons?
    Answer 1. An employee's pay can be a function of a number of 
individualized factors. The EEOC Compliance Manual recognizes a variety 
of legitimate factors that can explain pay differences. Thus, while 
access to information about other employees' pay may provide a basis 
for comparison, that comparison needs to be put into appropriate 
context.

    Question 2. What initiatives will you undertake to strengthen the 
ability of the EEOC and the ability of working people to identify and 
challenge pay discrimination?
    Answer 2. If confirmed, I would work with the career professional 
staff and my fellow commissioners to ensure that an appropriate amount 
of the agency's resources are being devoted to enforcement of Federal 
equal pay laws. In addition, if confirmed, I would consult with the 
career professional staff and my fellow commissioners to examine what 
additional data the EEOC needs to fulfill its mandate to enforce equal 
pay laws.

    Question 3. The Administration recently stayed the EEOC's equal pay 
data collection via the EEO-1 form for further review. OMB stayed the 
data collection and instructed the EEOC to submit a new proposal. EEOC 
must now address OMB's expressed concerns and identify a path forward 
for the collection of pay data. At the hearing, you affirmed that you 
supported the collection of pay data from employers by the EEOC, and 
that development of a revised pay data collection would be priority and 
would be completed in a reasonable time period.
        a. Do you agree in order to be useful and effective for 
        enforcement purposes, employers must be required to collect and 
        submit to the EEOC data identifying job type, total 
        compensation, and whether the employee is full-time or part-
        time?
        Answer: Pay discrimination is a serious issue and an 
        appropriate focus of the EEOC's efforts. I believe that 
        transparency of pay data is a useful tool, but it is important 
        that the data collected and disclosed allow for a meaningful 
        comparison. If confirmed, I would consult with the career 
        professional staff and my fellow commissioners to examine what 
        additional data the EEOC needs to fulfill its mandate to 
        enforce Federal equal pay laws.

        b. Do you believe a revised pay data collection should be 
        mandatory for participating employers?
        Answer: If confirmed, I would consult with the career 
        professional staff and my fellow commissioners to examine what 
        additional data the EEOC needs to fulfill its mandate to 
        enforce Federal equal pay laws. I am open to exploring an 
        initial pilot program to develop a better understanding of how 
        collection of pay data could help further the EEOC's mission of 
        enforcing the Federal equal pay laws.

        c. If you have concerns about the EEO-1 pay data collection as 
        previously approved, how would you seek to modify it while 
        still ensuring that critical information about pay and hours 
        worked is collected and submitted by employers?
        Answer: Pay discrimination is a serious issue and an 
        appropriate focus of the EEOC's efforts. I believe that 
        transparency of pay data is a useful tool, but it is important 
        that the data collected and disclosed allow for a meaningful 
        comparison. If confirmed, I would consult with the career 
        professional staff and my fellow commissioners to examine what 
        additional data the EEOC needs to fulfill its mandate to 
        enforce Federal equal pay laws. I would like to understand how 
        the EEOC performed its burden analysis, and the agency's data 
        security program. I am open to exploring an initial pilot 
        program to develop a better understanding of how collection of 
        pay data could help further the EEOC's mission of enforcing 
        Federal equal pay laws.

        d. Please explain how you will incorporate the public comments 
        and analysis already produced during the extensive planning 
        process for the pay data collection.
        Answer: If confirmed, I would consult with the career 
        professional staff and my fellow commissioners to examine the 
        comments and analysis already provided to the EEOC and how that 
        input was incorporated into the final regulations. I will want 
        to understand the reasoning behind the agency's decision to not 
        incorporate comments, including comments addressing data 
        security issues, the type of data collected, and the burden and 
        costs that employers would have incurred in complying with the 
        EEO-1 requirement. I would also seek to learn why the agency 
        rejected suggestions to implement a pilot program.

        e. If you are confirmed, will you commit to leading a process 
        to finalize and implement pay data collection by EEOC, 
        including through a public hearing and other diverse 
        stakeholder engagement efforts, and to submitting a revised pay 
        data collection proposal to OMB for its review within 6 months 
        of your confirmation?
        Answer: If confirmed, I would consult with the career 
        professional staff and my fellow commissioners to examine what 
        additional data the EEOC needs to fulfill its mandate to 
        enforce equal pay laws, and analyze the relevant legal 
        requirements governing data collection, including those 
        contained in the Paperwork Reduction Act. I am open to 
        exploring an initial pilot program to develop a better 
        understanding of how collection of pay data could help further 
        the EEOC's mission of enforcing the Federal equal pay laws.

    Question 4. The equal pay data collection was adopted after 
transparent process that included multiple opportunities for the public 
to comment, public hearings, and extensive explanation by EEOC of its 
analysis and its decision. At the hearing, you stated that said the 
EEO-1 would have benefited from a ``more vigorous process'' of public 
comment, and that the agency failed to incorporate the suggestions of 
stakeholders that would have been helpful. Please provide specific 
details regarding the ways in which you found the process lacking as 
well as specific additional activities you believe might have resulted 
in a more vigorous process.
    Answer 4. Pay discrimination is a serious issue and an appropriate 
focus of the EEOC's efforts. I believe that transparency of pay data is 
a useful tool, but it is important that the data collected and 
disclosed allow for meaningful comparisons. I am concerned that the 
final EEO-1 did not adequately reflected the input of stakeholders on 
various elements, including the type of pay data to be collected, 
whether a pilot program was appropriate, and data security implications 
inherent in the collection of that data. I also do not believe that the 
EEOC effectively communicated the burden and costs to employers of 
gathering and submitting this data. If confirmed, I would consult with 
the career professional staff and my fellow commissioners to examine 
what additional data the EEOC needs to fulfill its mandate to enforce 
Federal equal pay laws.

    Question 5. The EEOC's analysis supporting the pay data collection 
explained in detail the agency's justification for adding pay data to 
the EEO-1, the process by EEOC used to choose the W-2 data collection 
mechanism, and the stakeholders the EEOC consulted with. For example, 
the EEOC analysis explains that the Commission considered give 
different measures of earnings, and detailed the strengths and 
weaknesses of the various measures. The EEOC analysis also explained 
that the Commission convened a 2-day working group of employer 
representatives, statisticians, human resources information system 
(HRIS) experts, and information technology specialists to inform its 
revision of the EEO-1. EEOC also reviewed over 900 public comments 
while adopting the EEO-1 pay data collection. OMB's decision to review 
and stay the previously approved EEO-1 pay data collection was not 
subject to a public notice and comment process and the publicly 
available explanation provided by OMB for its decision to set aside 
this extensively reviewed pay data collection was just two paragraphs 
long. Do you agree with OMB's change in position?
    Answer 5. I do not have sufficient information about the OMB's 
processes to respond to this question. If confirmed, I would consult 
with OMB, as well as career professional staff and my fellow 
commissioners to fully understand both the substantive and prcedural 
questions surrounding pay data collection.

    Question 6. Do you believe that OMB should fully disclose the basis 
for its stay, the analysis underlying its conclusion, and the process 
by which it reached that conclusion, including any outside interest 
groups with which it consulted?
    Answer 6. I do not have sufficient information about the OMB's 
processes to respond to this question. If confirmed, I would consult 
with OMB, as well as career professional staff and my fellow 
commissioners to fully understand both the substantive and procedural 
questions surrounding pay data collection.

    Question 7. OMB's decision to stay the pay data collection rested 
in part on the assertion that EEOC provided ``data file 
specifications'' for employers to directly upload pay data only after 
OMB approved the equal pay data collection. Are you aware that this is 
just one voluntary option to submit the data that is offered by the 
EEOC for employer convenience?
    Answer 7. I do not have sufficient information about the OMB's 
processes to respond to this question. If confirmed, I would consult 
with OMB, as well as career professional staff and my fellow 
commissioners to fully understand both the substantive and procedural 
questions surrounding pay data collection.

    Question 8. Do you believe that OMB's decision to stay the pay data 
collection was justified, given that OMB approved the data collection 
last year fully aware that EEOC would post the data file specifications 
afterwards?
    Answer 8. I do not have sufficient information about the OMB's 
processes to respond to this question. If confirmed, I would consult 
with OMB, as well as career professional staff and my fellow 
commissioners to fully understand both the substantive and procedural 
questions surrounding pay data collection.

    Question 9. President Trump's 2018 budget proposed merging the 
Office of Federal Contract Compliance Programs (OFCCP) and EEOC and 
significantly reducing the offices' budget. What is your position on 
the proposed merger?
    Answer 9. I understand that the merger has been proposed as a means 
of streamlining government and saving taxpayer dollars, which are 
worthy goals. I recognize that the two agencies have different 
mechanisms for investigation and enforcement, and that the two agencies 
are discussing how a merger would be accomplished. If confirmed, I look 
forward to learning more about those discussions.

     Question 10. The Retail Litigation Center, the litigation arm of 
the Retail Industry Leaders Association, is ``dedicated to advocating 
the retail industry's perspective in judicial proceedings.'' Deborah 
White, President of RLC, described you as ``instrumental in the 
formation and early success of the Retail Litigation Center.'' You were 
the Chairman and past Chairman of the Board of the Retail Litigation 
Center (RLC) from March 2010 to March 2015, and the RLC website 
continues to list you as an emeritus member of the Board. For each of 
the following cases, please answer whether you voted for or against 
filing the brief, and a detailed explanation of why you voted the way 
you did.
    Answer 10. I was Chair of the RLC from its formation in 2010 until 
October 2013, and thereafter served on the Board until March 2015. I 
have not been involved in the RLC since March 2015. The RLC is a 
membership organization, and the decision to participate or not 
participate in cases was made collectively by the Board. I did not have 
the unilateral authority to cause the RLC to act.

        a. The 2011 RLC amicus brief filed in Wal-Mart Stores, Inc. v. 
        Dukes (S. Ct. 2011) arguing that a nationwide class of women 
        workers at Wal-Mart alleging sex discrimination in pay and 
        promotions had been improperly certified.
        Answer: The RLC advocated for the reversal of the certification 
        of the class in the underlying action. The United States 
        Supreme Court found that the class had been improperly 
        certified and remanded the case to the lower court.

        b. The 2011 RLC amicus filed in Jock v. Sterling Jewelers, Inc. 
        (2d Cir. 2011) regarding allegations of gender and age 
        discrimination against employees at a jewelry store.
        Answer: The RLC, joining another amicus, asked the Second 
        Circuit to affirm that parties may not be compelled to 
        participate in class arbitrations. The Second Circuit reversed 
        the lower court's decision vacating the arbitration award and 
        remanded with instructions to confirm the arbitration award.

        c. The 2013 brief filed in Vance v. Ball State Univ. (S. Ct. 
        2013) regarding the ``power to hire and fire'' test for 
        determining who is a supervisor for the purposes of employer's 
        vicarious liability for supervisor sexual harassment.
        Answer: The RLC, joined by another amicus, asked the United 
        States Supreme Court to affirm the ``power to hire and fire'' 
        standard used by the Seventh Circuit Court of Appeals. The 
        Supreme Court affirmed the Seventh Circuit's decision, holding 
        that under Title VII, a supervisor, for purposes of imputing 
        liability to the employer, is defined as an employee who has 
        the power to hire and fire.

        d. The 2013 RLC amicus filed in University of Texas v. Nassar 
        (S. Ct. 2013) arguing that a plaintiff must show but-for 
        causation to succeed under Title VII's anti-retaliation 
        provision.
        Answer: The RLC, joined by another amicus, asked the United 
        States Supreme Court to reverse the Fifth Circuit's decision 
        and find that Title VII's anti-retaliation provision requires a 
        plaintiff to prove but-for causation and that a mixed-motive is 
        insufficient to establish employer liability. The Supreme Court 
        held that claimants asserting a retaliation claim under Title 
        VII must prove but-for causation. The case was vacated and 
        remanded.

    Question 11. Given the conflicting legal interests of the RLC and 
workers, how can this Committee be confident that under your leadership 
the EEOC will continue to vigorously investigate, conciliate, and 
litigate workplace discrimination?
    Answer 11. If I am confirmed, I will do my best to objectively lead 
the agency in a manner consistent with the EEOC's statutory mandates, 
as well applicable judicial and agency precedent, taking into account 
the views of other commissioners, the career professional staff, and 
interested stakeholders.

    Question 12. While you served on the board of the Retail Litigation 
Center, you approved the filing of an amicus brief in the Supreme Court 
case Mach Mining v. EEOC. The amicus brief, filed on behalf of the RLC, 
the Chamber of Commerce, and other business associations, urged the 
Court to find that the EEOC's duty to conciliate is subject to judicial 
review.
        a. Is this litigation position, advocating for substantially 
        limiting the EEOC's authority and ability to investigate and 
        litigate systemic discrimination cases, at odds with the 
        mission of the agency you are nominated to lead?
        Answer: The issue in Mach Mining v. EEOC was whether EEOC's 
        statutory duty to conciliate was subject to judicial review. 
        The RLC, and other amici, argued that the EEOC's conciliation 
        obligation was subject to judicial review. The United States 
        Supreme Court agreed in a unanimous decision authored by 
        Justice Kagan. I do not believe that judicial review of the 
        EEOC's statutory obligation to conciliate is at odds with the 
        mission of the EEOC.

        b. Do you commit to establishing enforcement goals and 
        priorities at the EEOC that include addressing systemic 
        discrimination against marginalized communities, including 
        women and people of color?
        Answer: Yes. If I am confirmed, I will do my best to 
        objectively lead the agency in a manner consistent with the 
        EEOC's statutory mandates, as well as applicable court and 
        judicial precedent, taking into account the views of other 
        commissioners, the career professional staff, and interested 
        stakeholders.

    Question 13. Do you agree with the EEOC's position in Baldwin v. 
Dep't of Transportation (EEOC Appeal No. 0120133080, July 15, 2015) 
that sexual orientation discrimination is a form of sex discrimination?
    Answer 13. If confirmed, I will consult with the career 
professional staff and other Commissioners on cases and work to enforce 
employment discrimination laws in accordance with the statutes and 
applicable legal precedents.

    Question 14. Do you agree with EEOC's position in Lusardi v. Dep't 
of the Army (EEOC Appeal No. 0120133395, March 27, 2015) that denying 
employees access the restroom matching their gender identity is sex 
discrimination?
    Answer 14. If confirmed, I will consult with the career 
professional staff and other Commissioners on cases and work to enforce 
employment discrimination laws in accordance with the statutes and 
applicable legal precedents.

    Question 15. Do you agree with EEOC's position in Macy v. Dep't of 
Justice (EEOC Appeal No. 0120120821, April 20, 2012) that 
discrimination against someone because they are transgender is a form 
of sex discrimination?
    Answer 15. If confirmed, I will consult with the career 
professional staff and other Commissioners on cases and work to enforce 
employment discrimination laws in accordance with the statutes and 
applicable legal precedents.

    Question 16. The EEOC's strategic enforcement plan current includes 
``protecting lesbians, gay men, bisexuals, and transgender (LGBT) 
people from discrimination based on sex.'' Do you intend to amend the 
inclusion of protections for LGBT workers in the strategic enforcement 
plan?
    Answer 16. No.

    Question 17. Do you commit to advancing the current EEOC position 
that Title VII prohibits employers from discriminating on the basis of 
sexual orientation and gender identity in circuit courts where the 
question has not been decided?
    Answer 17. If confirmed, I will consult with career professional 
staff, and seek the input of the other commissioners, to determine how 
to most effectively advocate on behalf of charging parties who allege 
discrimination on the basis of sexual orientation and gender identity 
in jurisdictions where there is no applicable circuit court precedent. 
Claims of sexual orientation discrimination and gender identity 
discrimination based on gender stereotyping are based on United States 
Supreme Court precedent, and the EEOC can pursue these claims in all 
circuit courts.

    Question 18. The EEOC's systemic litigation program has 
successfully ensured workers discriminated against in their employment 
receive justice. In July 2016 EEOC Chair Jenny Yang issued a report 
entitled A Review of the Systemic Program of the U.S. Equal Employment 
Opportunity Commission. The review found that in 2013-2014 the systemic 
litigation program contributed to a tripling of monetary relief 
recovered for victims and that the systemic program has had a 10-year 
success rate of 94 percent. Do you agree with the findings of the 
report? Do you agree that overall the existing systemic litigation 
program has been successful?
    Answer 18. I do not have access to the underlying, nonpublic data 
to make an assessment. I am mindful of the significant backlog of 
individual charges of discrimination that existed during the period of 
time covered by the report. If confirmed, I would also want to 
understand why the number of litigation cases based on individual 
charges of discrimination has declined.

    Question 19. You have indicated that you are not confident that 
EEOC staff are sufficiently trained and resourced to pursue systemic 
litigation. Please explain the challenges you believe face the systemic 
program, how those challenges factor into the findings of the report 
and how you plan to address those challenges.
    Answer 19. Systemic litigation tends to be more complex than 
individual charges of discrimination, and can require greater reliance 
on expert testimony, more extensive discovery, more complicated 
evidentiary issues, and more complex trials. If confirmed, I will seek 
to learn more about the resources available to the professionals at the 
EEOC who handle systemic litigation.

    Question 20. Will you commit to continuing to pursue coordinated, 
systemic litigation on behalf of those subject to discriminatory 
patterns, practices, or policies?
    Answer 20. If confirmed, I will work with the career professional 
staff, and consult with my fellow commissioners, to understand the 
resources being devoted to systemic investigations and the resources 
applied to the existing backlog of charges. I am concerned about the 
backlog, and would work to ensure there is an appropriate balance 
between these two efforts. In addition, if confirmed, I will want to 
learn why the number of litigation cases based on individual charges of 
discrimination has declined.

    Question 21. Please describe in detail when you believe that 
systemic litigation is appropriately used by EEOC.
    Answer 21. I believe that systemic litigation can be used to 
maximize the impact of the agency's resources by pursuing matters that 
are high impact. Systemic litigation that addresses a widespread 
pattern or practice of discriminatory treatment is a valuable tool to 
combat discrimination.

    Question 22. In 2012, the EEOC issued criminal history guidance. In 
your opinion, when can employers appropriately use criminal history 
background checks when making employment decisions and when is it 
unlawful or discriminatory for an employer not to hire workers with 
criminal histories?
    Answer 22. Because this guidance has been challenged and is the 
subject of ongoing litigation, I do not believe it is appropriate for 
me to respond to this question. I am aware that the EEOC's efforts to 
enforce this guidance through litigation have been subjected to 
criticism from various courts, including in EEOC v. Kaplan Higher 
Education Corp., EEOC v. Freeman, Inc. and EEOC v. Peoplemark, Inc., 
and that significant sanctions have been assessed. If confirmed, I will 
seek to learn more about the EEOC's enforcement efforts in this area.

    Question 23. Do you support maintaining the current EEOC criminal 
history guidance that has been in place for 5 years and is generally 
understood by employers? If not why not?
    Answer 23. Because this guidance has been challenged and is the 
subject of ongoing litigation, I do not believe it is appropriate for 
me to respond to this question. However, if confirmed, I would consult 
with career professional staff and my fellow commissioners to 
understand the issues surrounding the guidance.

    Question 24. Title II of the Genetic Information Nondiscrimination 
Act (GINA) and Title I of the Americans with Disabilities Act (ADA) 
protect an employee's privacy in the workplace and ensure that 
employers can only request or obtain genetic and medical information 
when an employee provides it voluntarily. In a recent ruling by the 
U.S. District Court for the District of Columbia on AARP v. EEOC, the 
EEOC's rules about the fees employers can assess workers who do not 
participate in workplace wellness programs were deemed arbitrary. 
However, rather than vacate the rules, the court has requested EEOC to 
``address the rules' failings in a timely manner''. Please explain your 
understanding of why the court sent the wellness rules back to the 
EEOC.
    Answer 24. The District Court stated in its Memorandum Opinion that 
the ``EEOC . . . has failed to provide a reasoned explanation for its 
decision to adopt the 30 percent incentive levels in both the ADA and 
GINA rules.'' The Court remanded the rules to the EEOC for 
reconsideration.

    Question 25. Do you agree that workplace wellness programs do not 
need to collect and retain employees' genetic and medical information 
to be effective?
    Answer 25. I do not have sufficient information on which to form an 
opinion. If confirmed, I would consult with career professional staff 
and my fellow commissioners to fully understand the impact of GINA and 
the ADA on the need to collect and retain medical information as part 
of workplace wellness plans.

    Question 26. As the Commission redrafts rules on how Title II of 
GINA and Title I of ADA apply to workplace wellness programs, will you 
work to ensure that an employee (or spouse) should not be subject to 
steep financial pressure by their employer or health plan to disclose 
their genetic and medical information?
    Answer 26. If confirmed, I will work with the career professional 
staff and my fellow commissioners to redraft the rules to address the 
concerns raised by the Court in the AARP v. EEOC matter, and to ensure 
that the EEOC's interpretations are consistent with the regulations 
that HHS, the Department of Treasury and the DOL promulgated in the 
wake of the ACA's passage, as well as the requirements of GINA and the 
ADA. In light of the ongoing litigation, I do not believe it would be 
appropriate for me to comment on specific aspects of the wellness 
regulations that the EEOC has promulgated, and which are the subject of 
the litigation and the court's recent order.

    Question 27. What are some possible ways the wellness program rules 
can be redrafted to protect employee health privacy, ensure voluntary 
employee participation, and comply with Title I of the Americans with 
Disabilities Act (ADA) and Title II of the Genetic Information 
Nondiscrimination Act (GINA)?
    Answer 27. If confirmed, I will work with the career professional 
staff and my fellow commissioners to redraft the rules to address the 
concerns raised by the Court in the AARP v EEOC matter, and to ensure 
that the EEOC's interpretations are consistent with the regulations 
that HHS, the Department of Treasury and the DOL promulgated in the 
wake of the ACA's passage, as well as the requirements of GINA and the 
ADA. In light of the ongoing litigation, I do not believe it would be 
appropriate for me to comment on specific aspects of the wellness 
regulations that the EEOC has promulgated, and which are the subject of 
the litigation and the court's recent order.

    Question 28. In your opinion, when is it appropriate for an agency 
to use sub regulatory guidance?
    Answer 28. Sub regulatory guidance should be used to State the law 
in a manner that is understandable to all stakeholders.

    Question 29. EEOC under the leadership of Chair Yang has conducted 
a public process when considering sub regulatory guidance. Do you agree 
additional transparency has improved the process and the final 
guidance?
    Answer 29. I believe that additional transparency is helpful. In 
addition, sub regulatory guidance should be used to State the law in a 
manner that is understandable to all stakeholders.

    Question 30. Every year, EEOC receives tens of thousands of 
harassment complaints. For example, in fiscal year 2016, nearly 30,000 
harassment complaints were filed with the EEOC. In 2015, EEOC convened 
a bipartisan Select Task Force on the Study of Harassment in the 
Workplace. After 18 months of examination, the Task Force released a 
lengthy report on workplace harassment, along with recommendations for 
a range of stakeholders, including the EEOC. Do you commit to 
supporting the bipartisan task force recommendations? If not, which 
task force recommendations to you oppose? Please explain your answer in 
detail.
    Answer 30. I believe that Task Force's efforts to seek input from 
stakeholders were positive and appropriate, and that the Task Force's 
report was drafted in a constructive way. I thought that the checklists 
and charts of risk factors, drafted in a straightforward terms, were 
particularly helpful and serve as a good example of how the EEOC can 
work to prevent unlawful employment discrimination. If confirmed, I 
look forward to learning more about the process within the agency for 
assembling the Task Force's report, and how the lessons from that 
process can be applied to future efforts by the agency.

    Question 31. Do you have any concerns with EEOC's 2017 Proposed 
Enforcement Guidance on Unlawful Harassment? Do you believe the 
guidance needs to be rescinded or revised in any way?
        a. Do you support the Proposed Enforcement Guidance's expansion 
        of the interpretation of sex-based harassment to include 
        harassment based on gender stereotypes and nonconformance with 
        gender norms, gender identity and sexual orientation?
        b. Do you believe that the Proposed Enforcement Guidance should 
        make clear that sex-based harassment includes harassment on the 
        basis of pregnancy, childbirth, or other related conditions, 
        including reproductive health decisions?
        Answer: I believe that EEOC's efforts to seek public comment on 
        the Proposed Enforcement Guidance were appropriate. I thought 
        that the work underlying the Proposed Enforcement Guidance, 
        particularly the Select Task Force on the Study of Harassment 
        in the Workplace, was constructive. I am aware of concerns 
        raised about the potential conflict between the EEOC's 
        recommendations that employers provide civility training, and 
        the NLRB's position that broad workplace civility codes can 
        infringe on employees' rights. If confirmed, I will seek the 
        input of the career professional staff, and my fellow 
        commissioners, and review the input from stakeholders on all 
        aspects of the Proposed Enforcement Guidance. I will take all 
        of these views into careful consideration in forming an opinion 
        on whether any changes to the Proposed Enforcement Guidance are 
        necessary or desirable, keeping in mind that the role of sub 
        regulatory guidance is to State the law in a manner 
        understandable to all stakeholders, not as a means of changing 
        existing law.

    Question 32. Do you have any concerns with EEOC's 2016 Enforcement 
Guidance on National Origin Discrimination? Do you believe the guidance 
needs to be rescinded or revised in any way?
    Answer 32. I believe that the EEOC's guidance reflects a 
significant effort on the part of the agency, and reflects input from 
stakeholders as well as the EEOC's extensive experience in this area. I 
am aware of concerns that have been raised about the guidance on the 
issue of ``perceived'' national origin. If confirmed, I look forward to 
working with the career professional staff, and my fellow 
commissioners, to evaluate whether those concerns have had any 
practical impact on the EEOC's enforcement efforts, or caused any 
meaningful confusion in the employer community.

    Question 33. Do you have any concerns with EEOC's 2016 Enforcement 
Guidance on Retaliation and Related Issues? Do you believe the guidance 
needs to be rescinded or revised in any way?
    Answer 33. It is vitally important that employees are protected 
from retaliation. If confirmed, I look forward to working with the 
career professional staff, and my fellow commissioners, to learn how 
the Guidance is impacting the prosecution of retaliation cases at the 
EEOC. I am aware of concerns that have been raised that the Guidance 
reflects the EEOC's view that employees are protected even when they 
assert claims in bad faith. If confirmed, I look forward to evaluating 
whether this issue has impacted the agency's efforts to enforce legal 
prohibitions against workplace retaliation.

    Question 34. Do you have any concerns with EEOC's 2015 Enforcement 
Guidance on Pregnancy Discrimination and Related Issues? Do you believe 
the guidance needs to be rescinded or revised in any way?
    Answer 34. If confirmed, I will work with the career professional 
staff and fellow commissioners to review the Enforcement Guidance, and 
analyze how it is being applied in practice. I will also want to 
understand why this Enforcement Guidance was not made available for 
public comment before it was issued.

    Question 35. Do you commit to inform the members of this Committee 
if you intend to undertake any review or revision of any existing or 
ongoing enforcement guidance?
    Answer 35. I will work with the Committee in its oversight 
activities.

    Question 36. The 50th anniversary of the Age Discrimination in 
Employment Act (``ADEA'') is this year. While we have made substantial 
progress in the last five decades in reducing discrimination faced by 
older workers, there is much progress left to be made. What specific 
steps will you recommend EEOC take to reduce age discrimination in the 
workforce?
    Answer 36. If confirmed, I will work with the career professional 
staff and fellow commissioners to understand ongoing efforts to enforce 
the ADEA, and to identify whether additional efforts are needed to 
reduce age discrimination in the workforce. I am also aware that some 
judicial interpretations of the ADEA have placed limitations on the 
ability of the EEOC to combat certain forms of age discrimination in 
the workplace.

    Question 37. What is your opinion about whether minority members of 
the Health, Education, Labor, and Pensions (``HELP'') Committee have 
the authority to conduct oversight of the EEOC?
    Answer 37. If confirmed, I will work with all members of the HELP 
Committee.

    Question 38. If confirmed, do you agree to provide briefings on 
EEOC business to members of the HELP Committee, including minority 
members, if requested?
    Answer 38. Yes.

    Question 39. If confirmed, do you commit to answer promptly any 
letters or requests for information from individual members of the HELP 
Committee including request for EEOC documents, communications, or 
other forms of data?
    Answer 39. Yes, subject to statutory limitations on the ability of 
the EEOC to disclose information about charging parties and 
respondents.
       Responses by Janet Dhillon to Questions of Senator Sanders
    Question 1. The EEOC is an independent Federal agency that seeks to 
``eradicate employment discrimination at the workplace'' yet your 
history of defending cases has been characterized as limiting the 
ability of workers to challenge discriminatory practices. The Chairman 
of the EEOC plays a critical role in driving the policies to achieve 
the EEOC's mission. As an attorney who built their career advocating 
for corporate interests and pursuing policies that weaken protections 
for the American worker, how do plan to carry on the EEOC's mission of 
eradicating discrimination in the workplace? You critics point to your 
tenure at the Retail Litigation Center, an organization that many 
describe as hostile toward EEOC positions and enforcement efforts, as a 
troubling background for a someone now charged with protecting workers. 
How do you respond to such criticisms? What biases do you think you 
bring to the position of Chairman of the EEOC? How do you plan to 
balance your background with the responsivities inherent in your new 
role?
    Answer 1. In my prior roles as General Counsel, I worked to put 
into place policies and practices to prevent unlawful employment 
discrimination. I also took steps to ensure that when complaints of 
discrimination were raised, they were promptly and fairly investigated, 
and that appropriate action was taken if necessary. I believe these 
efforts were fully consistent with the mission of the EEOC.

    Likewise, the RLC supported the work of the EEOC and its objective 
to eliminate workplace discrimination.
    My experiences in the private sector, and with the RLC, taught me 
that honest debate, vigorous exchange of views and respectful 
consideration of other perspectives leads to better outcomes. If 
confirmed, I will strive to apply those lessons to my work at the EEOC.

    Question 2. An integral part of our government system is checks and 
balances. One way this is exercised is through congressional oversight. 
Oversight includes the review, monitoring, and supervision of Federal 
agencies, and timely and accurate information from agencies is critical 
to conducting that oversight. For example, the Senate exercises its 
oversight role is with confirmation hearings for Presidential 
appointees, the appropriations process, or through investigations and 
inquiries. Congressional oversight is a critical to ensuring 
transparency and making sure we are good stewards of taxpayer dollars. 
Ms. Dhillon, it is reported that you instructed executive agencies not 
to comply with Democratic oversight requests. Do you commit to 
responding timely and appropriately to all oversight requests from the 
Senate, regardless of which Senator or party initiates the request?
    Answer 2. I have not given any instructions to any executive 
agencies; I have never served in government. The press reports 
referenced in this question do not refer to me. If confirmed, I will 
cooperate with the HELP Committee's oversight activity.

    Question 3. In 2010, you signed a letter to the SEC arguing against 
protections for stakeholders. This letter addresses a post-Dodd-Frank 
regulatory proposal by the SEC concerning the reporting of corporate 
misconduct to in-house compliance departments. Representing corporate 
interests, you urged the SEC to require whistleblowers to use internal 
reporting mechanisms before turning to the SEC. In the letter, you 
acknowledge the risk that companies would retaliate against reporting 
employees and the delay in filling cases with the SEC. In your 
testimony before the Committee, you acknowledged a delay in case 
filings hurts both sides and argued that it would be better for all 
parties involved if the delay for filing and processing was minimized.
        a. If confirmed, you will be sworn in to fulfill the mission of 
        the EEOC, as directed by the Congress, to enforce laws 
        prohibiting workplace discrimination. How do you plan to 
        reconcile your past position of advocating for industry/
        internal reporting mechanisms over filing with the appropriate 
        regulatory Federal agency?
        b. Do you agree that in instances of systemic cultural 
        workplace discrimination, internal reporting would only 
        reinforce a culture of discrimination?
        Answer. In the 2010 letter signed by members of the Association 
        of Corporate Counsel (ACC), the signatories expressed the view 
        that creating disincentives for whistleblowers to report 
        internally could delay the discovery of wrongdoing. This is 
        particularly concerning in the context of financial reporting, 
        where a delay in identifying internal wrongdoing could harm 
        shareholders and others.

    I continue to believe that the points identified by the ACC are 
legitimate concerns. In the context of statutes enforced by the EEOC, 
there is no requirement that an employee notify his or her employer 
before filing a charge of discrimination, and I believe this structure 
is appropriate. That said, I believe it is desirable for employers to 
create and foster supportive environments where employees feel 
comfortable raising concerns of discrimination with their manager, or 
others in the organization, without fear of retaliation.

    Question 4. In 2016, the EEOC began reporting out on LGBTQ sex 
discrimination cases. Will you ensure that this vital data continues to 
be made publically available?
    Answer 4. Yes.

    Question 5. In your testimony before the Committee, you emphasized 
outreach and education as a means to achieve the EEOC's mission. What 
educational and outreach approaches would you add, change, or remove in 
order to support the EEOC's mission?
    Answer 5. If confirmed, I would seek the input of the career 
professional staff and my fellow commissioners on ways to enhance 
ongoing educational and outreach efforts. In particular, I would want 
to look at ways to enhance educational efforts for small businesses and 
their employees, as well as in sectors that generate disproportionate 
charge activity. I would also seek to understand the impact on the 
effectiveness of the EEOC's current practice of charging fees to attend 
certain EEOC-sponsored events.

       Responses by Janet Dhillon to Questions of Senator Franken
    Question 1. Women make up about half the workforce, and are the 
primary or co-breadwinners in two-thirds of American households. Yet a 
woman still makes only 80 cents, on average, for every dollar earned by 
a man, and the gap is even wider for women of color. In the absence of 
the EEOC being able to collect pay data as proposed in the recently 
blocked update to the EEO-1 pay data collection survey, how would you 
propose pay information be collected, and how should the EEOC address 
gender-based pay inequality?
    Answer 1. If confirmed, I would work with the career professional 
staff and my fellow commissioners to ensure that an appropriate amount 
of the agency's resources are being devoted to enforcement of Federal 
equal pay laws. I believe that transparency of pay data is a useful 
tool, but it is important that the data collected and disclosed allows 
for meaningful comparisons. In addition, if confirmed, I would consult 
with the career professional staff and my fellow commissioners to 
examine what additional data the EEOC needs to fulfill its mandate to 
enforce equal pay laws.

    Question 2. In October of last year, the EEOC approved a Strategic 
Enforcement Plan for Fiscal Years 2017-2021. The Plan identifies six 
substantive priority areas for the EEOC. No. 5 is titled ``Preserving 
Access to the Legal System.''
    The plan provides that the EEOC will focus on addressing employer 
``policies and practices that limit substantive rights, discourage or 
prohibit individuals from exercising their rights under employment 
discrimination statutes, or impede EEOC's investigative or enforcement 
efforts. Specifically, EEOC will focus on overly broad waivers, 
releases, and mandatory arbitration provisions that limit substantive 
rights, deter or prohibit filing charges with EEOC, or deter or 
prohibit providing information to assist in the investigation or 
prosecution of discrimination claims.''
    Ms. Dhillon, are you able to stand behind that statement? In other 
words, can you commit to fighting forced arbitration clauses that 
prevent workers from vindicating their rights under the Civil Rights 
Act?
    Answer 2. I am committed to enforcing the country's employment 
antidiscrimination laws and to removing barriers to employees seeking 
to remedy employment discrimination. In addition, I note that the EEOC 
is not bound by arbitration agreements between an employer and 
employee. If confirmed, I would support the EEOC's pursuit of cases 
regardless of the existence of an arbitration agreement.

    Question 3. Ms. Dhillon, the Retail Litigation Center, which you 
helped form, has devoted a considerable amount of time to defending 
employers' use of forced arbitration clauses and class action waivers. 
These clauses prevent workers from banding together to seek justice in 
a public court of law when they've been cheated or mistreated by their 
employer.
    As a founder, former chair, and then member of the Board of the 
Retail Litigation Center, can you describe what role you played in 
determining which cases the Center would get involved in? Based on the 
Center's advocacy, is it fair to say that you stand behind employers' 
use of pre-dispute arbitration clauses in employment contracts?
    Answer 3. The Retail Litigation Center (RLC) is a membership 
organization, and the decision to participate in cases was made 
collectively by the Board. I did not have the unilateral authority to 
cause the RLC to act.

    I believe that arbitration can be a useful process to resolve 
disputes in a cost-effective manner, reduce stress on the litigants, 
and alleviate burdens on the courts. The Federal Arbitration Act 
sanctions the use of arbitration, and the United States Supreme Court 
has recognized arbitration as a legally enforceable mechanism for 
dispute resolution. The Supreme Court has also held that the EEOC is 
not bound by arbitration agreements between an employer and employee. 
If confirmed, I would support the EEOC's pursuit of cases regardless of 
the existence of an arbitration agreement.
    Question 4. Your stance on forced arbitration demonstrates your 
willingness to defend workers' rights under the Civil Rights Act. 
Former Fox News anchor, Gretchen Carlson, began fighting against the 
use of forced arbitration clauses after filing a lawsuit against her 
boss, Roger Ailes, for sexual harassment. Mr. Ailes' lawyers tried to 
force her into private arbitration, arguing that Ms. Carlson had 
breached a forced arbitration clause in her employment contract--a 
clause which also prohibited her from speaking out about the claim.
    In an op-ed published a few months back, Ms. Carlson wrote, ``so 
many women are being silenced by employers who force them into a secret 
star chamber proceeding called arbitration. By coercing women to remain 
silent about illegal behavior, the employer is able to shield abusers 
from true accountability and leave them in place to harass again. The 
arbitration process--often argued to be a quicker and cheaper method of 
dispute resolution for employees--instead has silenced millions of 
women who otherwise may have come forward if they knew they were not 
alone.''
    Ms. Dhillon, would you agree that one benefit of our civil justice 
system is ensuring that other victims, including workers who have faced 
harassment and discrimination, are made aware of widespread wrongdoing? 
That such awareness allows them to mitigate the harm to themselves?
    Answer 4. Yes.

    Question 5. As head of the EEOC, it would be incumbent on you to 
take every action to ensure safety and equality in the workplace. It's 
particularly important that EEOC investigate public allegations of 
widespread wrongdoing within an organization. Would you agree that this 
mission is hampered if harmed individuals are prevented from speaking 
out about their claims?
    Answer 5. Yes.

     Responses by Janet Dhillon to Questions of Senator Whitehouse
    Question 1. Given your extensive history defending employers, what 
assurances can you provide that you can adequately appreciate the 
claims of individuals how bring claims against employers?
    Answer 1. In my prior roles as General Counsel of three public 
companies, I worked to put into place policies and practices to prevent 
unlawful employment discrimination. I also took steps to ensure that 
when complaints of discrimination were raised, they were promptly and 
fairly investigated, and that appropriate action was taken if 
necessary. If employees brought charges with the EEOC, I expected my 
team to work constructively with the EEOC, in a respectful and 
professional manner, to promptly address the matters raised. I believe 
that my work in the private sector demonstrates my commitment to 
enforcement of the nation's antidiscrimination laws.

    Question  2. Please list the three most significant cases in which 
you successfully obtained relief for an individual who brought an 
employment discrimination claim. Why were those cases significant to 
you?
    Answer 2. As a General Counsel, my professional and ethical 
obligations were to my employer. In my community work, my efforts 
focused on securing services and protecting the rights of children in 
foster care and other temporary care arrangements, and on supporting 
food banks. Earlier in my career, I worked on pro bono matters 
involving housing discrimination and criminal sentencing.

    Question 3. What do you understand the role of Fair Employment 
Practices Agencies (FEPAs) to be?
    Answer 3. FEPAs generally enforce employment discrimination laws 
enacted by states or localities. The EEOC has work-sharing agreements 
with some FEPAs which allow them to work cooperatively and reduce 
duplication of effort.

    Question 4. Do you agree with the EEOC's current enforcement 
priorities?
        a. If not, what do you think the priorities should be?
    Answer 4. If confirmed, I will consult with the career professional 
staff, as well as my fellow commissioners, concerning the EEOC's 
current enforcement priorities. I will seek to understand the resources 
being devoted to each priority, as well as what metrics are being used 
to measure progress. I will seek to balance these enforcement 
priorities against the need to reduce the backlog of individual 
charges.

    Question 5. Do you support systemic lawsuits as an effective and 
efficient way to combat discrimination?
    Answer 5. I believe that systemic litigation can be used to 
maximize the impact of the agency's resources by pursuing matters that 
are high impact. Systemic litigation that addresses a widespread 
pattern or practice of discriminatory treatment is a valuable tool to 
combat discrimination.

    Question 6. Do you commit to maintaining the EEOC's current 
position that discrimination on the basis of sexual orientation or 
gender identity is a form of sex discrimination prohibited by Title 
VII?
    Answer 6. The United States Supreme Court has recognized that 
discrimination on the basis of gender stereotyping is a violation of 
Title VII. If confirmed, I will work to ensure the EEOC continues its 
work to address discrimination on this basis, including in cases that 
involve allegations of discrimination on the basis of sexual 
orientation or gender identity. I will also work to continue the EEOC's 
efforts to enforce the provisions of applicable Executive Orders that 
prohibit discrimination on the basis of sexual orientation or gender 
identity. In addition, in those circuits that have recognized a cause 
of action for discrimination on the basis of sexual orientation or 
gender identity under Title VII (even absent gender stereotyping), I 
will work to ensure that the EEOC continues to pursue those cases. I 
will take steps to ensure that the EEOC does not stand in the way of 
claimants pursuing discrimination claims on the basis of sexual 
orientation or gender identity under applicable State laws. With the 
respect to those Federal jurisdictions where the courts have held that 
Title VII does not extend to discrimination claims based on sexual 
orientation or gender identity (absent allegations of gender 
stereotyping), the EEOC must comply with the law of that circuit.

    Question 7. You have stated that you are personally opposed to 
discrimination on the basis of sexual orientation and gender identity, 
but you have equivocated when asked whether you would continue the 
EEOC's current interpretation of Title VII on these issues. When making 
decisions as the Chair of the EEOC your personally held views are not 
as relevant as the effects of your decisions. If you are confirmed as 
Chair of the EEOC, will you make decisions that promote or tolerate 
employment discrimination against LGBT people?
    Answer 7. No.

    Question 8. Do you personally know anyone who is transgender?
    Answer 8. Yes.
        a. Would you be willing to meet with transgender workers to 
        discuss their workplace experiences?
        Answer: Yes.
       Responses by Janet Dhillon to Questions of Senator Baldwin
    Question. In 2013, the Supreme Court issued a decision in Vance v. 
Ball State University that made it much harder to hold employers 
accountable for the harassment employees face at the hands of direct 
supervisors. Under this decision, only people with the power to hire 
and fire are supervisors under Title VII. In reality, lower-level 
supervisors can have enormous authority over subordinates--particularly 
in low-wage occupations like child care workers and cashiers, where 
women make up a significant majority of workers.
    When you served on the board of directors of the Retail Litigation 
Center, that organization filed an amicus brief in Vance supporting a 
narrow understanding of Title VII with regard to liability for 
supervisor harassment. The Center also took positions in a number of 
cases in favor of narrowing employer liability standards.
    Given that record, can you explain how, as a Commissioner, you 
would work to ensure that individuals who experience harassment and 
discrimination at the hands of their supervisors have recourse? Would 
you support legislation that I have previously introduced, the Fair 
Employment Protection Act, which makes clear that employers can be held 
liable for the discriminatory conduct of lower-level supervisors?
    Answer: If I am confirmed, I will do my best to objectively lead 
the agency in a manner consistent with the EEOC's statutory mandates, 
as well as applicable judicial and agency precedent, taking into 
account the views of other commissioners, the career professional 
staff, and interested stakeholders. If additional laws are enacted to 
provide additional protections to employees, and the EEOC is charged 
with enforcing those laws, I will work to faithfully implement those 
new laws.
       Responses by Janet Dhillon to Questions of Senator Warren
    Sexual Orientation and Gender Identity Discrimination

    Title VII of the Civil Rights Act prohibits employment 
discrimination on the basis of ``race, color, religion, sex, or 
national origin.''\1\ The EEOC currently ``interprets and enforces 
Title VII's prohibition of sex discrimination as forbidding any 
employment discrimination based on gender identity or sexual 
orientation...regardless of any contrary State or local laws.''\2\ 
Numerous court decisions \3\ support EEOC's conclusion that ``sex 
discrimination provisions in Title VII protect lesbian, gay, bisexual, 
and transgender (LGBT) applicants and employees against employment 
bias.''\4\ Since beginning data collection on LGBT discrimination in 
2013, the EEOC has collected $6.4 million in monetary relief for 
individuals who have experienced LGBT-related discrimination.\5\
---------------------------------------------------------------------------
    \1\ U.S. Equal Employment Opportunity Commission, ``Title VII of 
the Civil Rights Act of 1964'' (online at https://www.eeoc.gov/laws/
statutes/titlevii.cfm).
    \2\ 1AU.S. Equal Employment Opportunity Commission, ``What You 
Should Know About EEOC and the Enforcement Protections for LGBT 
Workers'' (online at https://www.eeoc.gov/eeoc/newsroom/wysk/
enforcement--protections--lgbt--workers.cfm).
    \3\ U.S. Equal Employment Opportunity Commission, ``Examples of 
Court Decisions Supporting Coverage of LGBT-Related Discrimination 
Under Title VII'' (online at https://www.eeoc.gov/eeoc/newsroom/wysk/
lgbt--examples--decisions.cfm).
    \4\ U.S. Equal Employment Opportunity Commission, ``What You Should 
Know About EEOC and the Enforcement Protections for LGBT Workers'' 
(online at https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement--
protections--lgbt--workers.cfm).
    \5\U.S. Equal Employment Opportunity Commission, ``What You Should 
Know About EEOC and the Enforcement Protections for LGBT Workers'' 
(online at https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement--
protections--lgbt--workers.cfm).
---------------------------------------------------------------------------
    During your confirmation hearing on September 19th, you stated that 
you were ``personally opposed to discrimination on the basis of gender 
identity or sexual orientation.'' You also asserted that the EEOC is 
the ``preeminent Federal agency on workplace discrimination issues'' 
and that ``courts and other litigants should recognize that EEOC is an 
honest broker whose advocacy is beyond reproach [and] whose motives are 
always transparent.'' If confirmed as EEOC Chair, you will inherit 
pending cases addressing LGBT discrimination.\6\
---------------------------------------------------------------------------
    \6\ U.S. Equal Employment Opportunity Commission, ``Fact Sheet: 
Recent EEOC Litigation Regarding Title VII & LGBT-Related 
Discrimination'' (last updated July 8, 2016) (online at https://
www.eeoc.gov/eeoc/litigation/selected/lgbt--facts.cfm).
---------------------------------------------------------------------------
    Question 1. The EEOC has laid out its position on Title VII in 
numerous Federal sector court cases.\7\ Do you agree with the EEOC's 
legal interpretation that Title VII prohibits sex discrimination on the 
basis of sexual orientation and gender identity? If so, please 
highlight the specific EEOC cases that align with your legal 
interpretation of Title VII, as well as provide rebuttals to arguments 
that Title VII does not prohibit sex discrimination on the basis of 
sexual orientation and gender identity.
---------------------------------------------------------------------------
    \7\ U.S. Equal Employment Opportunity Commission, ``Federal Sector 
Cases Involving Transgender Individuals'' and ``Federal Sector Cases 
Involving Lesbian, Gay, or Bisexual Individuals'' (online at https://
www.eeoc.gov/Federal/reports/lgbt--cases.cfm).
---------------------------------------------------------------------------
    Answer 1. The United States Supreme Court has recognized that 
discrimination on the basis of gender stereotyping is a violation of 
Title VII. Lower courts have applied this reasoning to claims involving 
allegations of discrimination on the basis of sexual orientation or 
gender identity. Executive Orders also prohibit discrimination on the 
basis of sexual orientation or gender identity, and apply to Federal 
civilian employees as well as employees of Federal contractors. In 
addition, at least one circuit court has recognized a cause of action 
for discrimination on the basis of sexual orientation or gender 
identity under Title VII (absent gender stereotyping).
    The crux of the legal issue under Title VII is whether the word 
``sex'' extends to claims for discrimination on the basis of sexual 
orientation or gender identity (absent gender stereotyping). There is a 
split in the circuits on this question, and now there is a split of 
government agencies (with the EEOC advocating in favor of one 
interpretation, and the Department of Justice advocating in favor of 
the opposite interpretation).
    The legislative history of the original Civil Rights Act of 1964 
does not resolve this question of statutory interpretation. In 
subsequent amendments to Title VII, Congress did not expand the statute 
to explicitly encompass claims for discrimination on the basis of 
sexual orientation or gender identity. Multiple bills have been 
introduced in Congress to address this issue, but none have passed. 
Those unsuccessful bills are cited as evidence that Congress did not 
intend to have Title VII's reference to ``sex'' read broadly to include 
claims of discrimination based on sexual orientation or gender 
identity.

    Question 2. As EEOC Chair, would you continue to uphold the EEOC's 
current position on Title VII, including in currently pending cases?
    Answer 2. The United States Supreme Court has recognized that 
discrimination on the basis of gender stereotyping is a violation of 
Title VII. If confirmed, I will work to ensure the EEOC continues its 
work to address discrimination on this basis, including in cases that 
involve allegations of discrimination on the basis of sexual 
orientation or gender identity. I will also work to continue the EEOC's 
efforts to enforce the provisions of applicable Executive Orders that 
prohibit discrimination on the basis of sexual orientation or gender 
identity. In addition, in those circuits that have recognized a cause 
of action for discrimination on the basis of sexual orientation or 
gender identity under Title VII (even absent gender stereotyping), I 
will work to ensure that the EEOC continues to pursue those cases. I 
will take steps to ensure that the EEOC does not stand in the way of 
claimants pursuing discrimination claims on the basis of sexual 
orientation or gender identity under applicable State laws. With 
respect to those Federal jurisdictions where the courts have held that 
Title VII does not extend to discrimination claims based on sexual 
orientation or gender identify (absent allegations of gender 
stereotyping), the EEOC must comply with the law of that circuit.

    Question 3. On January 27, 2017, the Department of Justice (DOJ) 
filed an amicus brief in an LGBT-discrimination case that Title VII 
``does not reach[] sexual orientation discrimination.'' DOJ also stated 
that the EEOC was ``not speaking for the United States'' in its 
opposing brief on the matter.DOJ also stated that the EEOC was ``not 
speaking for the United States'' in its opposing brief on the 
matter.DOJ also stated that the EEOC was ``not speaking for the United 
States'' in its opposing brief on the matter.\8\
---------------------------------------------------------------------------
    \8\ Alan Feuer, ``Justice Department Says Rights Law Doesn't 
Protect Gays,'' New York Times (July 27, 2017) (online at https://
www.nytimes.com/2017/07/27/nyregion/justice-department-gays-
workplace.html.)
---------------------------------------------------------------------------
        a. Do you believe that the DOJ or the EEOC ``speaks for the 
        United States'' on the issue of Title VII discrimination?
        Answer 3. Under Title VII, the EEOC does not have the authority 
        to issue substantive rules or regulations; its explicit 
        rulemaking authority is limited to procedural rules. See EEOC 
        v. Arabian Am. Oil Co., 499 U.S. 244, 257-58 (1991) 
        (``Congress, in enacting Title VII, did not confer upon the 
        EEOC authority to promulgate rules or regulations . . . the 
        level of deference afforded [to the EEOC's interpretations] 
        will depend upon the thoroughness evident in its consideration, 
        the validity of its reasoning, its consistency with earlier and 
        later pronouncements, and all those factors which give it power 
        to persuade, if lacking power to control.'') (citations 
        omitted).

        The Department of Justice brings litigation to enforce Title 
        VII against State and local governments. Further, the 
        Department of Justice, through the Solicitor General, 
        represents the EEOC before the United States Supreme Court.

        b. Should disagreements between the EEOC and other Federal 
        agencies over the interpretation of Title VII arise in the 
        future, how will you defend the EEOC's role as the 
        ``preeminent'' arbiter of workplace discrimination issues?
        Answer: The EEOC has the authority to adjudicate disputes under 
        Title VII in the Federal employment sector, although it cannot 
        impose injunctive relief on other Federal agencies. The 
        Department of Justice has jurisdiction for enforcing Title VII 
        against State and local governments in the litigation context. 
        Further, the Department of Justice, through the Solicitor 
        General, represents the EEOC before the United States Supreme 
        Court. If confirmed, I will continue to respect this 
        distribution of authority among the agencies.

    Question 4. The EEOC's Strategic Enforcement Plan (SEP) for 2013-
2016 listed the ``coverage of lesbian, gay, bisexual and transgender 
individuals under Title VII's sex discrimination provisions'' as an 
``emerging or developing'' issue that EEOC should ``prioritize.''\9\ 
The EEOC's SEP for 2017-2021 lists the protection of LGBT Americans 
from discrimination based on sex as an ``emerging and developing 
issue'' priority, but notes that ``the Commission may choose to add or 
remove particular issues as the law develops.''\10\ If confirmed, would 
you support continuing to prioritize the protection of LGBT Americans 
from sex discrimination as an ``emerging and developing'' issue?
---------------------------------------------------------------------------
    \9\ U.S. Equal Employment Opportunity Commission, ``Strategic 
Enforcement Plan: fiscal year 2013-2016'' (online at https://
www.eeoc.gov/eeoc/plan/sep.cfm).
    \10\ U.S. Equal Employment Opportunity Commission, ``Strategic 
Enforcement Plan: Fiscal Years 2017-2021'' (online at https://
www.eeoc.gov/eeoc/plan/sep-2017.cfm).
---------------------------------------------------------------------------
    Answer 4. Yes.

    EEO-1 Data and Pay Discrimination

    The Civil Rights Act of 1967 and the Equal Employment Opportunity 
Act of 1972 require employers with 100 or more employees to annually 
submit EEO-1 forms to the EEOC. EEO-1 forms capture information on the 
gender and race of employees.\11\ In January 2016, the Obama 
administration proposed an update to the EEO-1 that would have required 
employers to report additional information on workers' wages, broken 
down by race, ethnicity, and gender. The form was officially revised in 
September 2016. The goal of this revision--which would have required 
companies to start submitted data by March 2018--was to provide EEOC 
with additional wage data to track and combat wage discrimination.\12\
---------------------------------------------------------------------------
    \11\ U.S. Equal Employment Opportunity Commission, ``EEO-1: Legal 
Basis for Requirements'' (online at https://www.eeoc.gov/employers/
eeo1survey/legalbasis.cfm).
    \12\ President Barack Obama, ``FACT SHEET: New Steps to Advance 
Equal Pay on the Seventh Anniversary of the Lilly Ledbetter Fair Pay 
Act,'' The White House of President Barack Obama (January 29, 2016) 
(online at https://obamawhitehouse.archives.gov/the-press-office/2016/
01/29/fact-sheet-new-steps-advance-equal-pay-seventh-anniversary-
lilly).
---------------------------------------------------------------------------
    Describing the new EEO-1 requirements--particularly its ``data file 
specifications for employers''--as ``unnecessarily burdensome,'' the 
Office of Management and Budget (OMB) recently halted the 
implementation of the EEO-1 pay data collection requirements. During 
your nomination hearing, you committed to ``make finalizing a 
transparent pay data collection by the EEOC a priority'' in a ``timely 
matter.''
    Question 5. Do you agree with the OMB's assessment that the EEOC's 
recent efforts to change the EEO-1 form are ``unnecessarily 
burdensome'' for employers? If not, please describe what steps the EEOC 
will take under your leadership to ensure that the EEO-1 form is 
amended to collect pay data by gender and race. If so, please provide a 
detailed description of how you will alter the EEOC's pay data 
collection proposal to make the regulation less ``burdensome'' while 
still collecting pay data by gender and race.
    Answer 5. Pay discrimination is a serious issue and an appropriate 
focus of the EEOC's efforts. I believe that transparency of pay data is 
a useful tool, but it is important that the data collected and 
disclosed allows for meaningful comparisons. If confirmed, I would 
consult with the career professional staff and my fellow commissioners 
to examine what additional data the EEOC needs to fulfill its mandate 
to enforce Federal equal pay laws. I would like to understand how the 
EEOC performed its burden analysis, and how it arrived at its annual 
burden estimate per filer. I am open to exploring an initial pilot 
program to develop a better understanding of how collection of pay data 
could help further the EEOC's mission of enforcing the Federal equal 
pay laws.

    Question 6. Changes to the EEO-1 form were meant to ``help focus 
public enforcement of our equal pay laws.'' How would you direct the 
EEOC to utilize additional race-and gender-related pay data, should the 
EEOC manage to successfully collect it?
    Answer 6. If confirmed, I would want to consult with the career 
professional staff, as well as my fellow commissioners, to determine 
how best to utilize collected pay data to further the agency's mission. 
I would also look to reports previously done by the EEOC, including 
Diversity in the Finance Industry, Diversity in the Media, as examples 
of how the EEOC can utilize the data it collects to further its 
mission.

    Question 7. Do you think measures to increase transparency by 
providing employees with information about pay is an effective tool to 
combat discrimination? If so, what specific measures--in addition to 
improving pay data collection at the EEOC--do you support?
    Answer 7. Pay discrimination is a serious issue and an appropriate 
focus of the EEOC's efforts. I believe that transparency of pay data is 
a useful tool, but it is important that the data collected and 
disclosed allow for meaningful comparisons. The EEOC Compliance Manual 
recognizes a variety of legitimate factors that can explain pay 
differences. Thus, while access to information about other employees' 
pay may provide a basis for comparison, that comparison needs to be put 
into appropriate context.

    Wellness Programs

    The EEOC is responsible for enforcing the Americans with 
Disabilities Act (ADA) and the Genetic Information Nondiscrimination 
Act (GINA). Among other requirements, the ACA ``prohibits employers 
from requiring medical exams or inquiring as to whether an individual 
has a disability unless the inquiry is both `job related' and 
`consistent with business necessity''--though employers may collect 
this information if its collection is ``voluntary.''\13\ GINA, 
meanwhile, ``prohibits employers from requesting, requiring, or 
purchasing genetic information from employees or their families.''\14\
---------------------------------------------------------------------------
    \13\ Epstein Becker & Green, ``EEOC's Wellness Program Incentive 
Regulations Rejected by the District Court,'' JDSupra (August 28, 2017) 
(online at http://www.jdsupra.com/legalnews/eeoc-s-wellness-program-
incentive-72781/).
    \14\ Epstein Becker & Green, ``EEOC's Wellness Program Incentive 
Regulations Rejected by the District Court,'' JDSupra (August 28, 2017) 
(online at http://www.jdsupra.com/legalnews/eeoc-s-wellness-program-
incentive-72781/).
---------------------------------------------------------------------------
    To help reduce the cost of healthcare, the Affordable Care Act 
(ACA) allows employers to offer financial incentives to encourage 
employee participation in wellness programs. In 2013, the Departments 
of Labor, Health and Human Services, and the Treasury (the Departments) 
issued regulations implementing the ACA that permit employers to offer 
financial incentives of up to 30 percent of healthcare premiums for 
participation in ``health contingent'' wellness plans. In 2016, EEOC 
issued regulations designed to align the ADA and GINA with the 
Department's wellness program regulations.\15\ The EEOC's regulations 
asserted that programs with a 30 percent financial incentive were 
``voluntary'' under the ADA, and would have permitted employers to 
condition financial incentives on the participation of an employees' 
spouse in a program that collects their genetic information. On July 
13, 2015, and February 2, 2016, I sent letters to the EEOC expressing 
my concerns with this approach.\16\
---------------------------------------------------------------------------
    \15\ Epstein Becker & Green, ``EEOC's Wellness Program Incentive 
Regulations Rejected by the District Court,'' JDSupra (August 28, 2017) 
(online at http://www.jdsupra.com/legalnews/eeoc-s-wellness-program-
incentive-72781/).
    \16\ See Letters from Senator Warren et al. to Jenny R. Yang, 
Chair, EEOC, on July 13, 2015, and February 2, 2016.
---------------------------------------------------------------------------
    In August 2017, a district court ruled in AARP v. U.S. Equal 
Employment Opportunity Commission that the EEOC's regulations violated 
the Americans with Disabilities Act (ADA) and the Genetic Information 
Nondiscrimination Act (GINA).\17\ The EEOC was directed to rewrite its 
regulations defining how employers can incentivize participation in 
wellness programs.\18\
---------------------------------------------------------------------------
    \17\ Epstein Becker & Green, ``EEOC's Wellness Program Incentive 
Regulations Rejected by the District Court,'' JDSupra (August 28, 2017) 
(online at http://www.jdsupra.com/legalnews/eeoc-s-wellness-program-
incentive-72781/).
    \18\ Epstein Becker & Green, ``EEOC's Wellness Program Incentive 
Regulations Rejected by the District Court,'' JDSupra (August 28, 2017) 
(online at http://www.jdsupra.com/legalnews/eeoc-s-wellness-program-
incentive-72781/).
---------------------------------------------------------------------------
    Question 8. Will you commit to preserving GINA protections in the 
EEOC's upcoming revision of its wellness program regulations?
    Answer 8. If confirmed, I will work with the career professional 
staff and my fellow commissioners to redraft the rules to address the 
concerns raised by the Court in the AARP v EEOC matter, and to ensure 
that the EEOC's interpretations are consistent with the regulations 
that HHS, the Department of Treasury and the DOL promulgated in the 
wake of the ACA's passage, as well as the requirements of GINA and the 
ADA. In light of the ongoing litigation, I do not believe it would be 
appropriate for me to comment on specific aspects of the wellness 
regulations that the EEOC has promulgated, and which are the subject of 
the litigation and the court's recent order.

    Question 9. Will you commit to preserving ADA protections in the 
EEOC's upcoming revision of its wellness program regulations?
    Answer 9. If confirmed, I will work with the career professional 
staff and my fellow commissioners to redraft the rules to address the 
concerns raised by the Court in the AARP v EEOC matter, and to ensure 
that the EEOC's interpretations are consistent with the regulations 
that HHS, the Department of Treasury and the DOL promulgated in the 
wake of the ACA's passage, as well as the requirements of GINA and the 
ADA. In light of the ongoing litigation, I do not believe it would be 
appropriate for me to comment on specific aspects of the wellness 
regulations that the EEOC has promulgated, and which are the subject of 
the litigation and the court's recent order.

    Question 10. Do you believe that participation in an employee 
wellness program can be ``voluntary'' if the terms of the program place 
significant financial pressure on an employee to reveal genetic 
information, including the medical history of the employee or a family 
member?
    Answer 10. If confirmed, I will work with the career professional 
staff and my fellow commissioners to redraft the rules to address the 
concerns raised by the Court in the AARP v EEOC matter, and to ensure 
that the EEOC's interpretations are consistent with the regulations 
that HHS, the Department of Treasury and the DOL promulgated in the 
wake of the ACA's passage, as well as the requirements of GINA and the 
ADA. In light of the ongoing litigation, I do not believe it would be 
appropriate for me to comment on specific aspects of the wellness 
regulations that the EEOC has promulgated, and which are the subject of 
the litigation and the court's recent order.

    Criminal Background Checks

    Question 11. In your opinion, what is the appropriate use of 
criminal history background checks in an employment application 
process?
    Answer 11. Criminal history background checks can be appropriate to 
screen applicants whose prior criminal history indicates the applicant 
could put the employer and/or its employees/customers at unreasonable 
risk. For example, an applicant with a criminal record for child sexual 
abuse would likely not be an appropriate candidate for a position in a 
child day-care center.

    Question 12. Is it ever unlawful or discriminatory for an employer 
not to hire workers with criminal histories?
    Answer 12. Yes.

    Question 13. Will you commit to bringing cases against employers 
whose use of criminal background checks has a disparate impact on 
protected classes under Title VII?
    Answer 13. Because the EEOC's guidance on this topic has been 
challenged and is the subject of ongoing litigation, I do not believe 
it is appropriate for me to respond to this question. I am aware that 
the EEOC's efforts to enforce this guidance through litigation have 
been subjected to criticism from various courts, including in EEOC v. 
Kaplan Higher Education Corp., EEOC v. Freeman, Inc. and EEOC v. 
Peoplemark, Inc., and that significant sanctions have been assessed. If 
confirmed, I will seek to learn more about the EEOC's enforcement 
efforts in this area.

    Credit Checks

    Question 14. In your opinion, what is the appropriate use of credit 
checks in an employment application process?
    Answer 14. If an employer elects to use credit checks in an 
employment application process, it must do so in a neutral fashion, and 
not as a pretext for screening out protected classes of employees. In 
addition, credit checks must be conducted in accordance with the 
requirements of FCRA (the Fair Credit Reporting Act) and other similar 
State laws.

    Question 15. Is it ever unlawful or discriminatory for an employer 
not to hire workers because of their credit history?
    Answer 15. If an employer elects to use credit checks in an 
employment application process, it must do so in a neutral fashion, and 
not as a pretext for screening out protected classes of employees. In 
addition, credit checks must be conducted in accordance with the 
requirements of FCRA (the Fair Credit Reporting Act) and other similar 
State laws.

    Question 16. Will you commit to bringing cases against employers 
whose use of credit history has a disparate impact on protected classes 
under Title VII?
    Answer 16. If confirmed, I will consult with the career 
professional staff, as well as my fellow commissioners, and review the 
data on this subject.

    Case Load

    Question 17. Given the current case backlog at EEOC do you support 
the Trump administration's fiscal year 2018 budget proposal to 
eliminate 249 full-time positions at EEOC?
    Answer 17. If confirmed, I will carefully examine the agency's 
expenditures to make sure that the agency is making the most efficient 
use of its resources, and is making strategic investments of its 
resources to ensure it can achieve its mandate in the most cost-
effective manner possible.

    Question 18. If not, will you commit to advocating against budget 
cuts to The White House?
    Answer 18. If confirmed, I will advocate for resources necessary 
for the agency to perform its mandate.

    Systemic Investigations

    Question 19. What are your views on EEOC's systemic program?
    Answer 19. I believe that systemic investigations and litigation 
can be used to maximize the impact of the agency's resources by 
pursuing matters that are high impact. Systemic investigations and, 
where necessary, litigation, that addresses a widespread pattern or 
practice of discriminatory treatment is a valuable tool to combat 
discrimination.
    Census
    Question 20. As you may know, the EEOC relies on data gathered in 
Census products such as the American Community Survey. The President 
has proposed debilitating budgets to the Census and has not appointed a 
Director. Will you commit to advocating to the White House for a fully 
funded and staffed Census Bureau?
    Answer 20. I am aware that the EEOC receives data from the Census, 
but I am not familiar with that data, nor how it is utilized. If 
confirmed, I will work with the career professional staff to understand 
how the agency uses Census data.

    Question 21. Will you commit to informing the HELP Committee if you 
do not have adequate data from Census products or if the quality of 
Census data that you use declines?
    Answer 21 Yes.

    Retail Litigation Center

    You helped found and served as chair of the Retail Litigation 
Center (RLC), which files briefs representing the retail industry's 
interests in a variety of legal proceedings, including matters of EEOC 
policy, enforcement, and litigation.\19\ In that capacity, you worked 
with high-level executives of other major employers to decide if and 
how to intervene in retail-related cases, including some before the 
EEOC.
---------------------------------------------------------------------------
    \19\ https://www.rila.org/enterprise/retaillitigationcenter/Pages/
default.aspx.
---------------------------------------------------------------------------
    Question 22. What steps will you take to avoid the appearance of 
impropriety if the RLC has filed a brief in a case that comes before 
you as chair of the EEOC?
    Answer 22. I intend to recuse myself from matters in which the RLC 
is involved if I had involvement in that matter while I was on the 
Board of the RLC. Beyond that, I will consult with the EEOC's ethics 
officer on recusal issues.

    Question 23. Please list the companies whose executives sat on the 
RLC's Board of Directors while you were Chair.
    Answer 23 J.C. Penney Company, Inc., Lowe's Companies, Inc., 
Michaels Stores, Inc., Target Corporation, 7-Eleven, Inc., Jo-Ann 
Stores, Inc., Dollar General Corporation, Whole Foods Market, Inc., 
Wal-Mart Stores, Inc., and Walgreen Co.

    Question 24. If any of these companies is a party in a case that 
comes before the EEOC, what steps will you take to avoid the appearance 
of impropriety in light of your prior relationship with such a company?
    Answer 24. I will consult with the EEOC's ethics officer on recusal 
issues.

        a. In such circumstances, would you take a meeting or otherwise 
        communicate with an executive from that company?
        Answer. I will consult with the EEOC's ethics officer.

    Congressional Oversight

    Question 25. Please describe your views on the role of Congress in 
conducting oversight of the EEOC.
    Answer 25. Congressional oversight is important function that 
supports Congress's authorizing and appropriating roles and derives 
from its implied powers in the Constitution.

    Question 26. Will you commit to promptly and comprehensively 
answering any requests for information that you receive from any member 
of members of the HELP Committee?
    Answer 26. Yes, subject to statutory limitations on the ability of 
the EEOC to disclose information about charging parties and 
respondents.

    Question 27. Will you treat requests for information from Majority 
Members of Congress differently than you will treat requests from 
Minority members? If so, how?
    Answer 27. No.

        Responses by Janet Dhillon to Questions of Senator Kaine
    Question 1. In light of this Administration's attacks on 
undocumented immigrants, it is more important than ever that the EEOC 
continue to vigorously enforce claims of discrimination filed by 
undocumented workers. Will you abide by the EEOC's guidance stating 
that workers are protected under Title VII regardless of their 
immigration status or authorization to work?
    Answer 1. Yes.

    Question 2. Strong EEOC enforcement efforts are especially 
important in low-wage jobs because these jobs are disproportionally 
held by workers who are vulnerable to discrimination, including women 
of color.
        a. How do you plan to make sure that the EEOC is devoting 
        sufficient resources to addressing discrimination in the 
        industries where these low-wage jobs are concentrated?
        Answer: I believe that the EEOC's focus on vulnerable members 
        of the nation's workforce is an important part of its overall 
        mission. If confirmed, I will work with the career professional 
        staff, and my fellow commissioners, to ensure that an 
        appropriate amount of the agency's resources are focused on 
        issues impacting these workers.

        b. Are there any biases you bring to the EEOC from your work on 
        behalf of management and industry in the retail sector that 
        will hinder your ability to strongly enforce low-wage workers' 
        rights, including those in the retail industry?
        Answer: No--I do not believe so. If I am confirmed, I will do 
        my best to objectively lead the agency in a manner consistent 
        with the EEOC's statutory mandates, as well as applicable 
        judicial and agency precedent, taking into account the views of 
        other commissioners, the career professional staff, and 
        interested stakeholders.

    Question 3. The Office of Management and Budget (OMB) recently 
suspended the pay data collection and reporting requirement under the 
updated version of the EEO-1 form that was originally scheduled to take 
effect in March of 18.
        a. Do you believe there is a gender-base wage gap that is due 
        in part to lack of transparency around compensation and lack of 
        review by employers into their pay practices?
        Answer: Yes.

        b. Do you believe that some intervention by the EEOC is needed 
        to gain insight into employers' pay practices?
        Answer: Yes.

        c. What do you think are effective strategies to address pay 
        discrimination?
    Answer: Pay discrimination is a serious issue and an appropriate 
focus of the EEOC's efforts. I believe that transparency of pay data is 
a useful tool in combating pay discrimination, but it is important that 
the data collected and disclosed allow for meaningful comparisons. If 
confirmed, I would consult with the career professional staff and my 
fellow commissioners to examine what additional data the EEOC needs to 
fulfill its mandate to enforce Federal equal pay laws. I will also want 
to understand what resources are being devoted to enforcement of the 
nation's equal pay laws, and make a determination whether those 
resources are appropriate.
       Responses by Janet Dhillon to Questions of Senator Hassan
    Question 1. Section 14(c) of the Fair Labor Standards Act, 
authorizes employers to pay sub-minimum wages to workers who experience 
disabilities. Often times, this type of employment occurs in a secluded 
environment known as a sheltered workplace. In 2015, with the support 
of the NH business community, New Hampshire was the first State to 
eliminate the payment of the subminimum wage and there have been 
efforts in Congress to end this practice.
        a. Understanding that your role is to execute the current law, 
        do you personally support ending the practice of paying 
        subminimum wage to individuals who experience disabilities and 
        phasing out the practice of using sheltered workplaces in favor 
        of Competitive Integrated Employment?
        Answer: I do not have sufficient information or background on 
        this issue to form an informed view. If confirmed, I would 
        consult with the career professional staff and fellow 
        commissioners to learn more about this area.

    Question 2. One of the biggest gaps between men and women in both 
education and the workforce is in the STEM fields. Women outnumber men 
as college graduates, but in STEM fields the numbers are quite the 
opposite. In turn, men have higher representation in STEM careers, 
which tend to pay much more than jobs in female-dominated spheres. 
Women who do enter into STEM fields often face heavy discrimination and 
hostile work environments, as many recent articles about STEM-field 
office cultures have demonstrated. They are also shortchanged on pay. A 
2015 study by the American Association of University Women found that 
women in STEM fields are paid only 82-87 percent of what their male 
counterparts are paid.\20\
---------------------------------------------------------------------------
    \20\ http://www.aauw.org/2015/04/14/women-shortchanged-in-stem/.
---------------------------------------------------------------------------
        a. How will you work to combat this systemic gap in pay?
        b. How will you monitor whether this gap is closing?
        c. What steps will you take to ensure that these women's 
        rights' are protected in hostile work environments?
    Answer: I believe that pay discrimination in any field is 
unacceptable. In the past, the EEOC has established Task Forces to 
focus on particular issues, and has issued reports on employment 
practices in particular sectors (for example, the EEOC's reports titled 
Diversity in the Finance Industry and Diversity in the Media). I 
believe these types of in-depth efforts have been effective at driving 
positive change. If confirmed, I would work with the career 
professional staff, as well as my fellow commissioners, to explore ways 
that the EEOC can address these issues.

    Question 3. As you know the Americans with Disabilities Act 
requires that employers provide reasonable accommodations to an 
employee who experiences a disability. Despite this, individuals with 
disabilities continue to face an unemployment rate of over 8 percent 
and have a labor participation rate of only 20.5 percent compared to 
68.8 percent of individuals who do not experience a disability.
        a. Can you explain your understanding of a reasonable 
        accommodation under the ADA?
        Answer: What constitutes a reasonable accommodation is highly 
        dependent on the facts of a particular circumstance. Employers 
        should engage in the interactive process to determine what 
        constitutes a reasonable accommodation in a particular 
        circumstance.

        Question 4. Often times, especially in cases of individuals 
        with mental health issues or a learning disability, employees 
        may choose to not disclose their disability and in turn not 
        receive the accommodations they are afforded under law.
        a. What role do you believe the EEOC plays in ensuring that 
        employers are held accountable to provide accommodations and 
        that employees know their legal rights to disclose their 
        disability with no repercussions?
    Answer: I believe that employer and employee outreach and education 
efforts are particularly important in this area. In addition, the 
EEOC's mediation program can play a significant role in these types of 
situations. In addition, if unlawful discrimination is found, the EEOC 
should engage in a meaningful conciliation effort.

        b. You've been a corporate executive for several retail chains, 
        do you feel there are too many lawsuits under the ADA?
        Answer: I do not have access to information on which to form a 
        judgment on the amount of litigation brought under the ADA.
  Responses by Dr. Daniel M. Gade to Questions of Senator Patty Murray
    Question 1. In January a blogpost on the website BlackFive argued 
that women should not be allowed in combat units. You commented twice 
on this post, agreeing with the author's argument--that combat units 
should be restricted to men. You said allowing women in combat roles 
will be a detriment to national security, will result into lower 
standards at Ranger, SFAS, and other schools, and that the idea of 
women fighting in that environment is ``laughable.'' Please explain how 
your views have changed since 2011 and why.
    Answer 1. As late as 2011, I agreed with the military's policy at 
that time that excluded women from some combat roles. Later that year, 
when I arrived at West Point as a professor, I began to observe women 
in demanding leadership roles within the Corps of Cadets. I mentored 
many women, including several who became combat arms officers upon 
graduation. I am proud of those women, and proud of my mentorship of 
them.
    My concerns that the military would lower physical standards as 
part of the effort to include women were unfounded, and I do not 
currently hold the views that I held in 2011. My direct observation and 
mentorship of women who are currently serving as combat arms officers, 
including one who was the 4th woman to graduate from Ranger School and 
another who is the only woman serving as a Sapper platoon leader in the 
101st Airborne Division, make my concerns in 2011 seem antiquated. I no 
longer hold those views, and am proud of my years-long mentorship of 
those officers.

    Question 2. The original blogpost in question, ``Women in combat 
units--Oh! Hell! No!'' not only argued vigorously against allowing 
women into combat roles, but did so in an incendiary way perpetuating 
harmful gender stereotypes. For example, the author said that ``[w]omen 
are not as big and strong as men, nor can they withstand the rigors of 
living completely off the grid for the extended stretches combat can 
require.'' The author went on to explain ``you just threw a healthy, 
breeding age, female into a pack of dogs with an established, yet 
always evolving hierarchy,'' questioned where the ``vital gap is in our 
combat repertoire that requires a feminine touch, and noted ``the need 
for monthly maintenance is another show stopper'' (referring to 
menstruation). Did you agree with these statements in 2011 and do you 
agree with them now? How can women trust that you no longer hold or 
endorse these stereotypes?
    Answer 2. No, I did not agree with the original poster of that 
article, nor do I agree with him now. Military professionals who are 
leading units in austere environments must take into account all of the 
unique needs of their soldiers, including mental and physical health, 
hygiene, and other mission requirements. I believe in the 
professionalism of the leaders of those units, and trust them to take 
into account all of the variables related to mission accomplishment. 
Anyone with concerns can look to my record of mentorship and direct 
care of women who later joined combat arms branches.

    Question 3. In one of your comments on BlackFive you called the 
Military Leadership Diversity Commission, which was established by 
Congress in 2009, ``silly.'' What about your experience with women in 
the military at the time you made those comments led you to think that 
it was a silly or laughable idea for women to serve in combat units?
    Answer 3. I knew nothing at that time about the diversity 
commission, and do not believe that it was ``silly.`` My concern at 
that time was that the Commission would simply endorse the political 
views of its founders and members, rather than take military readiness 
into account in a direct and honest way. Although I am not familiar 
with any reports made by that Commission, I am pleased that the Army 
has been rigorous in enforcing the standards for each position rather 
than relying on the sex of the soldier as a proxy for ability. Women 
can (and do) serve with distinction across the force, and I am pleased 
that some of those women were mentored by me during my time as a 
professor at West Point.

    Question 4. Are there currently any jobs or types of work that you 
believe should be restricted or open only to one gender? If so, what 
are those jobs? Please explain in detail.
    Answer 4. No, I do not think that gender is relevant to employment. 
Some jobs require more physical strength than others, and the employer 
must be careful to only apply tests that are directly relevant to the 
actual job to be performed rather than relying on stereotypes.

    Question 5. The EEOC's mission is to promote equal employment 
opportunity in the workplace. Do you commit to supporting EEOC's 
efforts to reduce women's barriers to entry into jobs traditionally 
dominated by men?
    Answer 5. Yes. I believe in the EEOC's role in that important work, 
and am committed to enforcing the law in those matters.

    Question 6. Many jobs traditionally dominated by men, such as 
firefighting, use physical requirements and tests in recruitment, 
hiring, and promotion. Height and weight requirements, and strength and 
physical tests, have often been designed and used to exclude women from 
nontraditional fields. In some cases such requirements have been found 
to impose a disparate impact on women in violation of Title VII. Do you 
believe that occupational standards for jobs, whether in the military 
or civilian sectors, should reflect the actual, regular and recurring 
duties of the job, and be applied fairly?
    For many years, job applicants were excluded from some jobs based 
on their sex. In order to prevent discrimination based on sex, any test 
applied to job applicants should clearly reflect actual job 
necessities.
        a. Do you believe that the use of physical tests and 
        requirements in recruitment, hiring, and promotion is 
        justified? If yes, in what circumstances
        Answer: Yes, physical tests may be appropriate. When used, 
        those tests must not be based on assumptions about the 
        characteristics of each sex, nor may they be designed to 
        exclude members of a particular sex. Instead, they must be 
        carefully designed to allow those capable of doing the work to 
        be hired, promoted, and retained.

        b. If you are confirmed, what steps will you take to actively 
        promote equal employment opportunity for women, particularly in 
        fields traditionally dominated by men?
        Answer: The law must be vigorously enforced, and I am committed 
        to doing so.

    Question 7. Do you support the Administration's ban on military 
service by transgender individuals?
    Answer 7. The President, in accordance with the Secretary of 
Defense, Service Secretaries, and Joint Chiefs of Staff, make policy 
affecting the military services. I believe that any person who meets 
the physical and mental standards of the profession of arms should be 
allowed to serve. During my service, I had no involvement with policy 
issues related to transgender service.

    Question 8. Do you agree that employee access to information about 
pay within a workplace is critical to helping employees determine 
whether they are being paid less than their peer for discriminatory 
reasons?
    Answer 8. Yes. One of the lessons of the Lilly Ledbetter case was 
that people sometimes don't know that they have been discriminated 
against because they have no information about what others are paid. As 
a general matter, I believe that employees should be able to have 
access to the required information to discern whether they have been 
discriminated against based on sex, race, or other protected category.

    Question 9. What initiatives will you undertake to strengthen the 
ability of the EEOC and the ability of working people to identify and 
challenge pay discrimination?
    Answer 9. The EEOC has the legal authority to collect pay data. If 
the EEOC decides to re-issue a revision to the EEO-1 form, the data 
collected should serve three purposes: to allow employees to understand 
whether they are being paid fairly; to allow employers to conduct self-
audits to determine whether they are paying their employees fairly; and 
to allow the government to use the data for law enforcement or 
educational purposes.

    Question 10. The EEO-1 form was created in the 1960's to provide 
the agency a better understanding of employment patterns by race, 
gender, and ethnicity across different job categories and industries. 
For more than 50 years, the form has been an effective tool to help 
root out discriminatory practices. It continues to be a vital tool that 
the EEOC relies on to investigate and resolve race, sex, and national 
origin discrimination claims. The revised EEO-1 form approved in 2016 
continued the collection of this important data, in what is called 
component 1 of the form, and added a new component 2 focused on pay 
data collection. Given the important role that the EEO-1 form has 
played in the EEOC's work to combat race, gender, and national origin 
discrimination, do you believe that the data on race, gender, and 
ethnicity collected through component 1 of the form is still useful 
today and that the EEOC should continue to collect this data?
    Answer 10. Yes, I absolutely agree that the component 1 data should 
be collected and analyzed.

    Question 11. Are there specific changes to the collection of 
component 1 data (race, gender, ethnicity) that you think are important 
to pursue? If so, why?
    Answer 11. I am committed to working with the career staff and 
other commissioners to analyzing this question. If additional data 
fields are to be collected, that requirement should be promulgated 
through a normal notice and comment process, and subject to as much 
collaboration and consultation as possible. I am committed to openness 
and transparency in that process.

    Question 12. The Administration recently stayed the EEOC's equal 
pay data collection via the EEO-1 form for further review. OMB stayed 
the data collection and instructed the EEOC to submit a new proposal. 
EEOC must now address OMB's expressed concerns and identify a path 
forward for the collection of pay data. At the hearing, you affirmed 
that you supported the collection of pay data from employers by the 
EEOC, and that development of a revised pay data collection would be 
priority and would be completed in a reasonable time period.
        a. Do you agree in order to be useful and effective for 
        enforcement purposes, employers must be required to collect and 
        submit to the EEOC data identifying job type, total 
        compensation, and whether the employee is full-time or part-
        time?
        Answer: I am committed to effectively enforcing anti-
        discrimination law. In consultation with those professionals 
        who were involved in the original design of the new EEO-1 form, 
        I am committed to working swiftly to address OMB and 
        stakeholder concerns with the data to be collected and the 
        process for collecting it.

        b. Do you believe a revised pay data collection should be 
        mandatory for participating employers?
        Answer: I am committed to the mission of the agency, and 
        believe that pay discrimination is both illegal and immoral. I 
        am not willing to pre-judge the outcome of the discussions that 
        we will have related to this issue. However, ``optional'' data 
        collection is rarely efficacious in detecting and correcting 
        unsound behaviors and practices.

        c. If you have concerns about the EEO-1 pay data collection as 
        previously approved, how would you seek to modify it while 
        still ensuring that critical information about pay and hours 
        worked is collected and submitted by employers?
        Answer: I am committed to working collaboratively with the 
        professionals who designed the revised EEO-1 in the first 
        place. The agency clearly needs to address the OMB and 
        stakeholder concerns with the data to be collected and the 
        process of fielding the requirement, while upholding its 
        statutory mandate to eliminate discrimination.

        d. Please explain how you will incorporate the public comments 
        and analysis already produced during the extensive planning 
        process for the pay data collection.
        Answer: The process of revising the EEO-1 form must take into 
        account the concerns of the commenters on the original process. 
        I am committed to addressing each major category of concern, 
        and to include all stakeholders in the revision process.

        e. If you are confirmed, will you commit to supporting a 
        process to finalize and implement pay data collection by EEOC, 
        including through a public hearing and other diverse 
        stakeholder engagement efforts, and to submitting a revised pay 
        data collection proposal to OMB for its review within 6 months 
        of your confirmation?
        Answer: I am committed to the mission of the agency, and 
        believe that pay discrimination is both illegal and immoral. I 
        intend to work with the Commissioners to ensure the EEOC has 
        the information necessary to enforce America's anti-
        discrimination laws. I am not willing to prejudge the outcome 
        of the discussions that we will have related to this issue, nor 
        am I willing to commit to a 6-month deadline. I am not familiar 
        with the timelines involved in such a project. However, I 
        believe that it would be helpful if the agency updates Congress 
        at regular intervals.

    Question 13. The EEO's analysis supporting the pay data collection 
explained in detail the agency's justification for adding pay data to 
the EEO-1, the process by EEOC used to choose the W-2 data collection 
mechanism, and the stakeholders the EEOC consulted with. For example, 
the EEOC analysis explains that the Commission considered giving 
different measures of earnings, and detailed the strengths and 
weaknesses of the various measures. The EEOC analysis also explained 
that the Commission convened a 2-day working group of employer 
representatives, statisticians, human resources information system 
(HRIS) experts, and information technology specialists to inform its 
revision of the EEO-1. also reviewed over 900 public comments while 
adopting the EEO-1 pay data collection. OMB's decision to review and 
stay the previously approved EEO-1 pay data collection was not subject 
to a public notice and comment process and the publicly available 
explanation provided by OMB for its decision to set aside this 
extensively reviewed pay data collection was just two paragraphs long. 
Do you agree with OMB's change in position?
    Answer 13. OMB, and Members of Congress, had a number of serious 
concerns with the process and its result. I am committed to a way 
forward that takes those concerns into account.

    Question 14. The EEO-1 pay data collection currently under review, 
ensures reporting of compensation data by gender and racial/ethnic 
groups within each of ten job categories, rather than by an employer's 
own job titles or job classification system to allow analysis and 
comparison of wage data for firms employing workers in the same job 
class, in the same industry, in the same location, and in the same 
year. Do you agree that the pay data collection facilitates the 
consistent comparison of pay disparities in job categories among 
employers in a given industry and geographic area? If not, why not?
    Answer 14. I am committed to spending time with the professionals 
who designed the data reporting requirement prior to proposing any 
changes to their work. Some commenters believed that the categories 
were too broad (for example, listing surgeons and X-ray technicians 
together as ``professionals''). Those kinds of concerns should be taken 
into account.

    Question 15. Do you believe that OMB should fully disclose the 
basis for its stay, the analysis underlying its conclusion, and the 
process by which it reached that conclusion, including any outside 
interest groups with which it consulted?
    Answer 15. I am not familiar with OMB processes and how much public 
disclosure of those processes is appropriate. While I am generally in 
favor of transparency and openness, it is the prerogative of the White 
House to determine the extent to which its deliberative materials 
should be made public.

    Question 16. OMB's decision to stay the pay data collection rested 
in part on the assertion that EEOC provided ``data file 
specifications'' for employers to directly upload pay data only after 
OMB approved the equal pay data collection. Are you aware that this is 
just one voluntary option to submit the data that is offered by the 
EEOC for employer convenience?
    Answer 16. I am not familiar with how employers may provide this 
information. As a general matter, any required data should be able to 
be submitted in a way that is convenient to the employer and sufficient 
for the legitimate governmental purposes that it serves.

    Question 17. Do you believe that OMB's decision to stay the pay 
data collection was justified, given that OMB approved the data 
collection last year fully aware that EEOC would post the data file 
specifications afterwards?
    Answer 17. If confirmed, I look forward to reviewing OMB's decision 
closely.

    Question 18. President Trump's 2018 budget proposed merging the 
Office of Federal Contract Compliance Programs (OFCCP) and EEOC and 
significantly reducing the offices? budget. What is your position on 
the proposed merger?
    Answer 18. While I am familiar with that proposal, I am not ready 
to take a position on it as I would need time to review it in greater 
detail. If the OFCCP and EEOC are merged, it should be done in such a 
way to ensure that the critical mission of combatting discrimination is 
not negatively affected.

    Question 19. Do you agree with the EEOC's position in Baldwin v. 
Dep't of Transportation (EEOC Appeal No. 0120133080, July 15, 2015) 
that sexual orientation discrimination is a form of sex discrimination?
    Answer 19. I am personally opposed to sexual orientation 
discrimination. The current Circuit Court split, as well as the current 
disagreement between the EEOC and the DOJ, make this an issue that is 
ripe for final determination by the Supreme Court or the Congress. In 
the meantime, I am not aware of, nor will I drive, any current efforts 
to refine the EEOC position on this issue.

    Question 20. Do you agree with EEOC's position in Lusardi v. Dep't 
of the Army (EEOC Appeal No. 0120133395, March 27, 2015) that an 
employer who denies an employee access to a restroom that matches their 
gender identity is a form of sex discrimination?
    Answer 20. I am personally opposed to gender identity 
discrimination. Any change to the EEOC position should be made only 
with close consultation among the Commissioners, as well as an open and 
transparent process. I am committed to enforcing the law as written by 
Congress and interpreted by the courts.

    Question 21. Do you agree with EEOC's position in Macy v. Dep't of 
Justice (EEOC Appeal No. 0120120821, April 20, 2012) that 
discrimination against someone because they are transgender is a form 
of sex discrimination?
    Answer 21. Please see my answer to question #20, above.

    Question 22. At the hearing, you stated that if confirmed, one of 
your priorities would be to review the EEOC's strategic enforcement 
plan. Do you agree with the substantive area priorities and strategies 
set forth in the current strategic enforcement plan? Please be specific 
about priorities you would add or seek to remove.
    Answer 22. The current strategic enforcement plan should be 
reviewed by the full commission to determine whether it plots the 
proper course into the future. I am not currently willing to prejudge 
that process, but am committed to a process that is open and 
transparent to all stakeholders, including Members of Congress and 
others.

    Question 23. The EEOC's strategic enforcement plan currently 
includes ``protecting lesbians, gay men, bisexuals, and transgender 
(LGBT) people from discrimination based on sex.'' Do you intend to 
amend the inclusion of protections for LGBT workers in the strategic 
enforcement plan?
    Answer 23. I am personally opposed to gender identity and sexual 
orientation discrimination. The current Circuit Court split, as well as 
the current disagreement between the EEOC and the DOJ, make this an 
issue that is ripe for final determination by the Supreme Court or the 
Congress. I am committed to enforcing the law as written by Congress 
and interpreted by the courts. In the meantime, I am not aware of, nor 
will I drive, any current efforts to refine the EEOC position on this 
issue.

    Question 24. Do you commit to continuing to advocate that Title VII 
prohibits employers from discriminating on the basis of sexual 
orientation and gender identity in circuit courts where the question 
has not been decided?
    Answer 24. I am personally opposed to gender identity and sexual 
orientation discrimination. The current Circuit Court split, as well as 
the current disagreement between the EEOC and the DOJ, make this an 
issue that is ripe for final determination by the Supreme Court or the 
Congress. I am committed to enforcing the law as written by Congress 
and interpreted by the courts. In the meantime, I am not aware of, nor 
will I drive, any current efforts to refine the EEOC position on this 
issue.

    Question 25. At the hearing, you stated you believed that ``most 
discrimination is unintentional.'' Have you reviewed data that supports 
this position? Given your statement at the hearing, do you believe that 
a focus on disparate impact discrimination should be a top priority of 
the EEOC?
    Answer 25. I base that assertion on a belief that most 
discrimination (or alleged discrimination) never makes it to the formal 
complaint process. Instead, a worker who believes that he has been 
discriminated against may tell his supervisor, and she may make on-the-
spot corrections involving the parties who may have caused offense. For 
example, people with disabilities often hear the word ``retard'' used 
as a synonym for ``foolish.'' Most people, when informed that the word 
``retard'' is considered to be an ableist slur, will cease using it. 
That is an example of unintentional discrimination that does not rise 
to the level of a formal complaint, and where education and increased 
awareness will generally suffice.
    Disparate impact discrimination is real, common, and a cause for 
action in many cases. Each of those cases should be judged based on its 
own merits, and I support EEOC efforts in that regard.

    Question 26. The EEOC's systemic program has successfully ensured 
workers discriminated against in their employment receive justice. 
Commissioner Jenny Yang and her staff reviewed the systemic program 
from 2013?2014 and found that the program has contributed to a tripling 
of monetary relief recovered for victims. In all, they found that the 
systemic program has had a 10-year success rate of 94 percent. Will you 
commit to continuing to pursue coordinated, systemic litigation on 
behalf of those subject to discriminatory patterns, practices, or 
policies?
    Answer 26. Systemic litigation is a powerful tool, and when 
deployed appropriately, can be used to remedy some kinds of 
discrimination. Like any powerful tool, it should be used carefully, 
and I firmly believe that any systemic enforcement action should be 
undertaken after careful consideration by the full Commission.

    Question 27. Please describe in detail when you believe that the 
EEOC should use systemic litigation.
    Answer 27. Systemic litigation is appropriate where a pattern or 
practice of discrimination is uncovered that affects a broad group of 
people, even if they do not know that they have been discriminated 
against. In particular, the most vulnerable workers (migrants, people 
with disabilities, part-time workers, and others) may not know that 
they have been discriminated against, and systemic litigation may be 
appropriate in those cases.

    Question 28. Please explain any challenges you believe face the 
systemic program.
    Answer 28. The main challenge facing systemic litigation is that it 
can be used inappropriately, and can divert agency resources away from 
cases in which there is a specific complainant. Each decision to pursue 
systemic cases should be undertaken as a policy choice, not simply a 
litigation choice.

    Question 29. In 2012, the EEOC issued criminal history guidance. In 
your opinion, when can employers appropriately use criminal history 
background checks when making employment decisions and when is it 
unlawful or discriminatory for an employer not to hire workers with 
criminal histories?
    Answer 29. Ex-offenders face a difficult path to full 
reintegration, and this path can certainly be made steeper by 
discriminatory practices. A blanket bar to employment based on criminal 
history may affect Black and Hispanic men at a higher rate than others, 
and be the basis of a valid disparate impact claim. I would need to 
study this issue in greater depth, and consult with the other 
commissioners and career staff, before making any policy determinations 
in this area.

    Question 30. Do you support maintaining the current EEOC criminal 
history guidance that has been in place for 5 years and is generally 
understood by employers? If not, why not?
    Answer 30. I would need to study this issue in greater depth, and 
consult with the other commissioners and career staff, before making 
any policy determinations in this area. Any change to that guidance 
should be done after a full and open consultation with the 
Commissioners and relevant stakeholders.

    Question 31. Title II of the Genetic Information Nondiscrimination 
Act (GINA) and Title I of the Americans with Disabilities Act (ADA) 
protect an employee's privacy in the workplace and ensure that 
employers can only request or obtain genetic and medical information 
when an employee provides it voluntarily. In a recent ruling by the 
U.S. District Court for the District of Columbia on AARP v. EEOC, the 
EEOC's rules about the fees employers can assess workers who do not 
participate in workplace wellness programs were deemed arbitrary. 
However, rather than vacate the rules, the court has requested EEOC to 
``address the rules' failings in a timely manner''. Please explain your 
understanding of why the court sent the wellness rules back to the 
EEOC.
    Answer 31. My understanding is that the court sent the wellness 
rules back to the EEOC because it was not convinced that the EEOC's 
``30 percent rule'' was in accordance with the other relevant laws, and 
because it felt that the adoption of that rule was arbitrary. I support 
wellness programs, and believe that the EEOC plays an important role in 
protecting the rights of workers (especially people with disabilities 
and adverse genetic histories).

    Question 32. Do you agree that workplace wellness programs do not 
need to collect and retain employees? genetic and medical information 
to be effective?
    Answer 32. I look forward to reviewing the regulation and the court 
decision in an open, collaborative way. Medical and genetic information 
are exceptionally powerful tools, and use of them in a wellness program 
should be carefully balanced with the civil rights of the persons 
involved. Some basic medical information may be relevant (BMI, blood 
pressure, cholesterol, etc.), but these pieces of information should be 
carefully considered with an eye toward protecting the privacy and 
dignity of each employee.

    Question 33. As the Commission redrafts rules on how Title II of 
GINA and Title I of ADA apply to workplace wellness programs, will you 
work to ensure that an employee (or spouse) should not be subject to 
steep financial pressure by their employer or health plan to disclose 
their genetic and medical information?
    Answer 33. Yes. At some level of ``incentive'', the financial 
pressure may become coercive. The level of incentive may vary according 
to the financial resources of the person involved, and should be 
considered as this regulation is redesigned.

    Question 34. What are some possible ways the wellness program rules 
can be redrafted to protect employee health privacy, ensure voluntary 
employee participation, and comply with Title I of the Americans with 
Disabilities Act (ADA) and Title II of the Genetic Information 
Nondiscrimination Act (GINA)?
    Answer 34. I do not want to commit to or prejudge any result of the 
policymaking process. However, any wellness regulations that are 
allowed should be able to meet the needs of the employer while 
protecting the civil rights of the employee (and her family). I am 
committed to protecting privacy, ensuring voluntary participation, and 
complying with the ADA and GINA.

    Question 35. In your opinion, when is it appropriate for an agency 
to use sub-regulatory guidance?
    Answer 35. Sub-regulatory guidance serves an important educational 
role. However, any time the agency uses such guidance, it should do so 
in an open and transparent process.

    Question 36. EEOC under the leadership of Chair Yang has conducted 
a public process when considering sub-regulatory guidance. Do you agree 
additional transparency has improved the process and the final 
guidance?
    Answer 36. Yes. Transparency is always better than its inverse.

    Question 37. Every year, EEOC receives tens of thousands of 
harassment complaints. For example, in fiscal year 2016, nearly 30,000 
harassment complaints were filed with the EEOC. In 2015, EEOC convened 
a bipartisan Select Task Force on the Study of Harassment in the 
Workplace. After 18 months of examination, the Task Force released a 
lengthy report on workplace harassment, along with recommendations for 
a range of stakeholders, including the EEOC. Do you commit to 
supporting the bipartisan task force recommendations? If not, which 
task force recommendations to you oppose? Please explain your answer in 
detail.
    Answer 37. I have not reviewed the Task Force report in detail. 
However, any process that involves stakeholders in an open and 
collaborative process should be given tremendous weight.

    Question 38. Do you have any concerns with EEOC's 2017 Proposed 
Enforcement Guidance on Unlawful Harassment? Do you believe the 
guidance needs to be rescinded or revised in any way?
        a. Do you support the Proposed Enforcement Guidance's expansion 
        of the interpretation of sex-based harassment to include 
        harassment based on gender stereotypes and nonconformance with 
        gender norms, gender identity and sexual orientation?
        Answer: Because this is a rapidly developing area of the law, I 
        am committed to working with the stakeholders and advocates to 
        understanding this issue prior to forming an opinion. As a 
        general matter, I support the efforts of the EEOC to combat 
        workplace harassment, and look forward to assisting with 
        education and outreach along those lines.

        b. Do you believe that the Proposed Enforcement Guidance should 
        make clear that sex-based harassment includes harassment on the 
        basis of pregnancy, childbirth, or other related conditions, 
        including reproductive health decisions?
        Answer: Since 1978, Title VII has included protections based on 
        pregnancy, childbirth, and related matters (lactation, 
        pregnancy-related health care, etc.). I support the continued 
        enforcement of those laws, and I will commit to assisting in 
        those efforts.

    Question 39. Do you have any concerns with EEOC's 2016 Enforcement 
Guidance on National Origin Discrimination? Do you believe the guidance 
needs to be rescinded or revised in any way?
    Answer 39. I have no concerns with this guidance, and support 
EEOC's work to prevent national origin discrimination.

    Question 40. Do you have any concerns with EEOC's 2016 Enforcement 
Guidance on Retaliation and Related Issues? Do you believe the guidance 
needs to be rescinded or revised in any way?
    Answer 40. I have no concerns with this guidance, and support 
EEOC's work to prevent retaliation.

    Question 41. Do you have any concerns with EEOC's 2015 Enforcement 
Guidance on Pregnancy Discrimination and Related Issues? Do you believe 
the guidance needs to be rescinded or revised in any way?
    Answer 41. I have no concerns with this guidance, and support 
EEOC's work to prevent pregnancy-related discrimination.

    Question 42. Do you commit to inform the members of this Committee 
if you intend to undertake any review or revision of any existing or 
ongoing enforcement guidance?
    Answer 42. Yes, I am committed to openness and transparency with 
members of this Committee and other interested parties.

    Question 43. The 50th anniversary of the Age Discrimination in 
Employment Act (``ADEA'') is this year. While we have made substantial 
progress in the last five decades in reducing discrimination faced by 
older workers, there is much progress left to be made. What specific 
steps will you recommend EEOC take to reduce age discrimination in the 
workforce?
    Answer 43. I am committed to enforcing the ADEA in all actions with 
which I am involved. I generally support the effort in Congress to 
return the ADEA to its pre-Gross interpretation, and support EEOC 
efforts like that in the Texas Roadhouse case. Older workers are a 
critical part of our society and workforce, and they should be 
protected to the maximum extent of the law.

    Question 44. What is your opinion about whether minority members of 
the Health, Education, Labor, and Pensions (``HELP'') Committee have 
the authority to conduct oversight of the EEOC?
    Answer 44. I support the right of minority members to conduct 
oversight, and will respond in a timely way to requests from members in 
the minority.

    Question 45. If confirmed, do you agree to provide briefings on 
EEOC business to members of the HELP Committee, including minority 
members, if requested?
    Answer 45. Yes.

    Question 46. If confirmed, do you commit to answer promptly any 
letters or requests for information from individual members of the HELP 
Committee including request for EEOC documents, communications, or 
other forms of data?
    Answer 46. Yes, provided that the documents are properly protected 
in cases where they contain personally identifiable information (PII), 
or that it is not information protected by statute, or is pre-
decisional in nature.
    Responses by Dr. Daniel M. Gade to Questions of Senator Sanders
    Question 1. Dr. Gade, thank you for your service and sacrifice to 
our country. The EEOC is an independent Federal agency that seeks to 
``eradicate employment discrimination at the workplace.'' You have a 
distinguished military career, yet you do not have the traditional 
legal background of other commissioners. What challenges do you 
anticipate, given your lack of a background in discrimination law? If 
confirmed, you would be the only non-lawyer on the Commission. How do 
you view your role as a Commissioner of the EEOC?
    Answer 1. I do bring a unique perspective to the EEOC. If 
confirmed, my policy training and background, in addition to my 
extensive work advocating for people with disabilities and Veterans, 
will be a valuable additional insight to the Commission's work. I will 
rely on attorneys for advice on specific legal matters, but trust that 
they can rely on me for well-developed judgment, policy expertise, and 
leadership in the critically important coordinating role that the EEOC 
often plays.

    Question 2. In your testimony before the Committee, you emphasized 
outreach and education as a means to achieve the EEOC's mission. What 
educational and outreach approaches would you add, change, or remove in 
order to support the EEOC's mission?
    Answer 2. I have the heart of a teacher, and treasure the time I 
spent teaching at West Point. I believe that education is far 
preferable to litigation, and intend to assist the chair and the other 
commissioners with conducting a holistic review of the educational and 
outreach functions of the agency. I am excited about learning the 
current processes, and in contributing to their ongoing evolution.

     Responses by Dr. Daniel M. Gade to Questions of Senator Casey
    Question 1. I would like to look at a position that the EEOC has 
already taken that has to do with sexual orientation. The EEOC has 
determined that the prohibition on sex discrimination in Title VII of 
the Civil Rights act includes sexual orientation.
        a. Do you agree with that decision?
    Answer: I am personally opposed to gender identity and sexual 
orientation discrimination. The current Circuit Court split, as well as 
the current disagreement between the EEOC and the DOJ, make this an 
issue that is ripe for final determination by the Supreme Court or the 
Congress. I am committed to enforcing the law as written by Congress 
and interpreted by the courts. In the meantime, I am not aware of, nor 
will I drive, any current efforts to refine the EEOC position on this 
issue.

        b. Do you agree that Title VII covers those who are gay or 
        lesbian?
        Answer: I am personally opposed to gender identity and sexual 
        orientation discrimination. The current Circuit Court split, as 
        well as the current disagreement between the EEOC and the DOJ, 
        make this an issue that is ripe for final determination by the 
        Supreme Court or the Congress. I am committed to enforcing the 
        law as written by Congress and interpreted by the courts. In 
        the meantime, I am not aware of, nor will I drive, any current 
        efforts to refine the EEOC position on this issue.

        c. Do you agree that Title VII covers those who are 
        transgender?
        Answer: I am personally opposed to gender identity and sexual 
        orientation discrimination. The current Circuit Court split, as 
        well as the current disagreement between the EEOC and the DOJ, 
        make this an issue that is ripe for final determination by the 
        Supreme Court or the Congress. I am committed to enforcing the 
        law as written by Congress and interpreted by the courts. In 
        the meantime, I am not aware of, nor will I drive, any current 
        efforts to refine the EEOC position on this issue.

        d. If confirmed, will you maintain the EEOC's position on 
        sexual orientation discrimination and support bringing cases to 
        defend workers discriminated against because they are gay, 
        lesbian, or transgender?
        Answer: I am personally opposed to gender identity and sexual 
        orientation discrimination. The current Circuit Court split, as 
        well as the current disagreement between the EEOC and the DOJ, 
        make this an issue that is ripe for final determination by the 
        Supreme Court or the Congress. I am committed to enforcing the 
        law as written by Congress and interpreted by the courts. In 
        the meantime, I am not aware of, nor will I drive, any current 
        efforts to refine the EEOC position on this issue.

    Question 2. In your opening statement at the nomination hearing 
before the Senate HELP Committee you said, ``I would like to spend time 
on the educational and outreach functions of the EEOC, in the sincere 
belief that most discrimination is unintentional and could be prevented 
with better information.''
        a. Please define the term ``unintentional discrimination'' and 
        provide an example of what you consider to be unintentional 
        discrimination in your response.
        Answer: As a person with a disability, and having spent more 
        than a decade working in the disability area, I have become 
        very sensitive to the term ``retard''. This term can have two 
        meanings: the most common use of the word is as a synonym for 
        ``foolish''. When used in this way, the user of the term may be 
        thought of as having been discriminatory, even though she did 
        not mean it to be so. This type of discrimination can often be 
        corrected with education, and rarely or never needs to resort 
        to litigation. In most human interactions, I find the offending 
        party does not mean to be offensive, and leadership and climate 
        in the organization will assist in correcting undesirable 
        behavior.

        b. In order to hold employers responsible for disparate 
        treatment of people with disabilities, EEOC must show that the 
        disparate treatment is intentional. Given that unintentional 
        discrimination is much harder to remedy under Title VII, how do 
        you intend to take action on this issue?
        Answer: One of the educational functions of the EEOC is in this 
        specific area. Employers may use overbroad job testing for 
        historical reasons (``that's the way we've always done it'') 
        without regard for the fact that poorly designed job testing 
        may have a disparate impact. I believe that educational 
        outreach about pre-employment testing is a key area for 
        preventing this kind of discrimination.

        c. EEOC data on charges of employment discrimination and 
        resolutions for FFY 2016 do not appear to support your claim 
        that most employment discrimination is, in fact, unintentional. 
        For example, this data show there were more charges filed 
        alleging discharge on the basis of disability than alleging a 
        failure to accommodate. Therefore, how did you arrive at this 
        conclusion?
        Answer: It is true that the cases that eventually result in a 
        formal claim of discrimination are not typically cases of 
        ``unintentional'' discrimination. However, by my definition of 
        unintentional discrimination, those incidents are often handled 
        formally or informally at the employer level and generally do 
        not rise to the level of a formal complaint. My larger point in 
        that statement was simply that most people seek to treat others 
        with respect, and that most discrimination can be prevented by 
        simply treating others in that way. As an example, when I am 
        discriminated against based upon my use of a novel mobility 
        device (Segway), my primary approach is to educate the person 
        involved on the relevant law rather than to resort to 
        litigation. Once I explain the reason for my use of the Segway, 
        it becomes accepted in almost all cases.

        d. Since most of EEOC's education, outreach, and technical 
        assistance is provided upon request, how would this method 
        prevent discrimination that is, as you have put it, 
        unintentional? In the case of an employer, doesn't contacting 
        an EEOC outreach program coordinator presume the employer is 
        aware of an issue?
        Answer: I agree that once an employer or an employee reaches 
        out for assistance, there has already often been an incident of 
        discrimination. However, the EEOC has a critically important 
        role to play in combatting discrimination by compliance 
        education and assistance more generally. I am committed to 
        using my position to enhance these efforts whenever possible.
    Responses by Dr. Daniel M. Gade to Questions of Senator Franken
    Question. President Trump recently announced a policy to ban 
transgendered individuals from military service. If an employer were to 
institute a similar ban in their workplace, do you believe this sort of 
ban would be discriminatory? If confirmed, what sort of action would 
you recommend the EEOC take in response to such an employer's actions?
    Answer: The President, in conjunction with the Secretary of Defense 
and the Service Secretaries, makes policy with respect to who is 
allowed to serve. My personal belief is that anyone who meets those 
physical and mental standards should be allowed to serve, but I have 
not been involved in the military's policymaking process.
    I am opposed to discrimination based on transgender status. I am 
committed to enforcing the laws as written by Congress and interpreted 
by the Courts.

   Responses by Dr. Daniel M. Gade to Questions of Senator Whitehouse
    Question 1. Do you believe that the ADA strikes the right balance 
between employment opportunity for people with disabilities and 
business efficiency?
    Answer 1. Yes. While there is always room for improvement, the ADA 
is a wonderful law that was only strengthened by the ADA Amendments Act 
of 2008.

    Question 2. Do you support or oppose the ADA Education and Reform 
Act of 2017 (H.R. 620)?
    Answer 2. I am not familiar with that legislation. I would need to 
review it in greater detail, and discuss its potential implications 
with relevant stakeholders, before I could make a determination about 
supporting or opposing it. I will certainly enforce any provision of 
law that involves the EEOC, and encourage improvement of existing laws 
where they are insufficient.

    Question 3. Do you agree with EEOC's current interpretation that 
Title VII prohibits discrimination on the basis of gender identity and 
sexual orientation under the category of sex discrimination?
    Answer 3. I am personally opposed to gender identity and sexual 
orientation discrimination. The current Circuit Court split, as well as 
the current disagreement between the EEOC and the DOJ, make this an 
issue that is ripe for final determination by the Supreme Court or the 
Congress. I am committed to enforcing the law as written by Congress 
and interpreted by the courts. In the meantime, I am not aware of, nor 
will I drive, any current efforts to refine the EEOC position on this 
issue.

        a. If not, do you support an amendment of Title VII to 
        explicitly include those protections?
        Answer: I am personally opposed to discrimination on the basis 
        of sexual orientation or gender identity. I would need to 
        review proposed legislative language before committing to 
        support it.

    Question 4. You have stated that you are personally opposed to 
discrimination on the basis of sexual orientation and gender identity, 
but you have equivocated when asked whether you would continue the 
EEOC's current interpretation of Title VII on these issues. When making 
decisions as a member of the EEOC your personally held views are not as 
relevant as the effects of your decisions. If you are confirmed as a 
member of the EEOC, will you make decisions that promote or tolerate 
employment discrimination against LGBT people?
    Answer 4. I am personally opposed to gender identity and sexual 
orientation discrimination. The current Circuit Court split, as well as 
the current disagreement between the EEOC and the DOJ, make this an 
issue that is ripe for final determination by the Supreme Court or the 
Congress. I am committed to enforcing the law as written by Congress 
and interpreted by the courts. In the meantime, I am not aware of, nor 
will I drive, any current efforts to refine the EEOC position on this 
issue.
    Question 5. During your interview you said that you do not believe 
anyone should be fired on the basis of their sexual orientation or 
gender identity.
        a. What actions by an employer regarding a transgender employee 
        would constitute disparate treatment?
         Answer: Firing a transgender person because of their 
        transgender status would be an example of disparate treatment. 
        However, depending on the court of jurisdiction, this may or 
        may not be a protected category under Title VII. I am 
        personally opposed to gender identity discrimination. I am 
        committed to enforcing the law as written by Congress and 
        interpreted by the courts. In the meantime, I am not aware of, 
        nor will I drive, any current efforts to refine the EEOC 
        position on this issue.

        b. What actions by an employer regarding a transgender employee 
        would constitute harassment?
         Answer: As an example, allowing an employee to use disparaging 
        words in such a way that it creates a hostile environment may 
        constitute harassment. However, depending on the court of 
        jurisdiction, this may or may not be a protected category under 
        Title VII. I am personally opposed to gender identity 
        discrimination. I am committed to enforcing the law as written 
        by Congress and interpreted by the courts. In the meantime, I 
        am not aware of, nor will I drive, any current efforts to 
        refine the EEOC position on this issue.

        c. What actions by an employer regarding a transgender employee 
        would constitute a valid Title VII sex discrimination claim?
        Answer: This could be a highly fact-specific question depending 
        on the court of jurisdiction. I am committed to enforcing the 
        laws as passed by Congress and interpreted by the courts.

    Question 6. During your interview you described policy 
entrepreneurism as being undesirable, and said that it was your view 
that definitions were locked in at the time legislation passed.
        a. Is that an accurate description of your views?
        Answer: I believe that it is the role of Congress to make the 
        laws, and the courts to resolve disputes about the 
        interpretation of the laws. I commit to faithfully enforcing 
        the law, as it is written and interpreted.

        b. What sources will you use to determine what definitions were 
        locked in at the time legislation passed?
        Answer: I believe that it is the role of Congress to make the 
        laws, and the courts to resolve disputes about the 
        interpretation of the laws. I commit to faithfully enforcing 
        the law, as it is written and interpreted.

        c. Do you think Title VII prohibits male-on-male sexual 
        harassment?
        Answer: I believe that it is the role of Congress to make the 
        laws, and the courts to resolve disputes about the 
        interpretation of the laws. The Supreme Court decided this 
        question in Oncale (1998). I commit to faithfully enforcing the 
        law, as it is written and interpreted.

        d. Do you think that conduct is what Congress was thinking 
        about when it passed Title VII?
        Answer: I believe that it is the role of Congress to make the 
        laws, and the courts to resolve disputes about the 
        interpretation of the laws. I commit to faithfully enforcing 
        the law, as it is written and interpreted.

    Question 7. Why do you think disparities on the basis of sex and 
race exist in America today?
    Answer 7. I assume that this question refers to pay disparities. 
Certainly, illegal (and immoral) discrimination is a part of the reason 
for disparities. Such discrimination is illegal, immoral, and odious.
     Responses by Dr. Daniel M. Gade to Questions of Senator Warren
    EEO-1 Data and Pay Discrimination

    The Civil Rights Act of 1967 and the Equal Employment Opportunity 
Act of 1972 require employers with 100 or more employees to annually 
submit EEO-1 forms to the EEOC. EEO-1 forms capture information on the 
gender and race of employees.\1\ In January 2016, the Obama 
administration proposed an update to the EEO-1 that would have required 
employers to report additional information on workers' wages, broken 
down by race, ethnicity, and gender. The form was officially revised in 
September 2016. The goal of this revision ``which would have required 
companies to start submitted data by March 2018--was to provide EEOC 
with additional wage data to track and combat wage discrimination.\2\
---------------------------------------------------------------------------
    \1\ U.S. Equal Employment Opportunity Commission, ``EEO-1: Legal 
Basis for Requirements'' (online at https://www.eeoc.gov/employers/
eeo1survey/legalbasis.cfm).
    \2\ President Barack Obama, ``FACT SHEET: New Steps to Advance 
Equal Pay on the Seventh Anniversary of the Lilly Ledbetter Fair Pay 
Act,'' The White House of President Barack Obama (January 29, 2016) 
(online at https://obamawhitehouse.archives.gov/the-press-office/2016/
01/29/fact-sheet-new-steps-advance-equal-pay-seventh-anniversary-
lilly).
---------------------------------------------------------------------------
    Describing the new EEO-1 requirements--particularly its ``data file 
specifications for employers''--as ``unnecessarily burdensome,'' the 
Office of Management and Budget (OMB) recently halted the 
implementation of the EEO-1 pay data collection requirements. During 
your nomination hearing, you committed to ``make finalizing a 
transparent pay data collection by the EEOC a priority'' in a ``timely 
matter.''
    Question 1. Do you agree with the OMB's assessment that the EEOC's 
recent efforts to change the EEO-1 form are ``unnecessarily 
burdensome'' for employers? If not, please describe what steps the EEOC 
will take under your leadership to ensure that the EEO-1 form is 
amended to collect pay data by gender and race. If so, please provide a 
detailed description of how you will alter the EEOC's pay data 
collection proposal to make the regulation less ``burdensome'' while 
still collecting pay data by gender and race.
    Answer 1. Any data collection effort by the EEOC should serve three 
purposes: to allow employees to compare their pay to the pay of other, 
similarly situated employees; to allow employers to conduct self-checks 
to ensure compliance with the law; and to allow the EEOC or other 
enforcement agencies to ensure compliance with the law. I am committed 
to examining whether the EEO-1 report could better meet those three 
goals, but I am not willing to prejudge the outcome of that process.

    Question 2. Changes to the EEO-1 form were meant to ``help focus 
public enforcement of our equal pay laws.'' How would you direct the 
EEOC to utilize additional race-and gender-related pay data, should the 
EEOC manage to successfully collect it?
    Answer 2. As one of five commissioners, I will not have the 
authority to ``direct'' the use of the data. However, any such data 
should be useful for enforcement and educational functions.

    Question 3. Do you think measures to increase transparency by 
providing employees with information about pay is an effective tool to 
combat discrimination? If so, what specific measures--in addition to 
improving pay data collection at the EEOC--do you support?
    Answer 3. Yes, more transparency is always a good thing, because it 
gives employees the ability to advocate for themselves and employers 
the ability to self-police. I support EEOC data distribution as part of 
research or educational functions, either internal to the agency or in 
partnership with university and non-profit partners.

    Sexual Orientation and Gender Identity Discrimination

    Title VII of the Civil Rights Act prohibits employment 
discrimination on the basis of ``race, color, religion, sex, or 
national origin.''\3\ The EEOC currently ``interprets and enforces 
Title VII's prohibition of sex discrimination as forbidding any 
employment discrimination based on gender identity or sexual 
orientation ``regardless of any contrary State or local laws.''\4\ 
Numerous court decisions \5\ support EEOC's conclusion that ``sex 
discrimination provisions in Title VII protect lesbian, gay, bisexual, 
and transgender (LGBT) applicants and employees against employment 
bias.''\6\ Since beginning data collection on LGBT discrimination in 
2013, the EEOC has collected $6.4 million in monetary relief for 
individuals who have experienced LGBT-related discrimination.\7\ During 
your confirmation hearing on September 19th, you stated that you were 
``personally opposed to discrimination on the basis of gender identity 
or sexual orientation.''
---------------------------------------------------------------------------
    \3\ U.S. Equal Employment Opportunity Commission, ``Title VII of 
the Civil Rights Act of 1964'' (online at https://www.eeoc.gov/laws/
statutes/titlevii.cfm).
    \4\ U.S. Equal Employment Opportunity Commission, ``What You Should 
Know About EEOC and the Enforcement Protections for LGBT Workers'' 
(online at https://www.eeoc.gov/eeoc/newsroom/wysk/
enforcement_protections_lgbt_workers.cfm).
    \5\ U.S. Equal Employment Opportunity Commission, ``Examples of 
Court Decisions Supporting Coverage of LGBT-Related Discrimination 
Under Title VII'' (online at https://www.eeoc.gov/eeoc/newsroom/wysk/
lgbt_examples_decisions.cfm).
    \6\ U.S. Equal Employment Opportunity Commission, ``What You Should 
Know About EEOC and the Enforcement Protections for LGBT Workers'' 
(online at https://www.eeoc.gov/eeoc/newsroom/wysk/
enforcement_protections_lgbt_workers.cfm).
    \7\ U.S. Equal Employment Opportunity Commission, ``What You Should 
Know About EEOC and the Enforcement Protections for LGBT Workers'' 
(online at https://www.eeoc.gov/eeoc/newsroom/wysk/
enforcement_protections_lgbt_workers.cfm).
---------------------------------------------------------------------------
    Question 4. The EEOC has laid out its position on Title VII in 
numerous Federal sector court cases.\8\ Do you agree with the EEOC's 
legal interpretation that Title VII prohibits sex discrimination on the 
basis of sexual orientation and gender identity? If so, please 
highlight the specific EEOC cases that align with your legal 
interpretation of Title VII, as well as provide rebuttals to arguments 
that Title VII does not prohibit sex discrimination on the basis of 
sexual orientation and gender identity.
---------------------------------------------------------------------------
    \8\ U.S. Equal Employment Opportunity Commission, ``Federal Sector 
Cases Involving Transgender Individuals'' and ``Federal Sector Cases 
Involving Lesbian, Gay, or Bisexual Individuals'' (online at https://
www.eeoc.gov/Federal/reports/lgbt_cases.cfm).
---------------------------------------------------------------------------
    Answer 4. I am personally opposed to gender identity and sexual 
orientation discrimination. The current Circuit Court split, as well as 
the current disagreement between the EEOC and the DOJ, make this an 
issue that is ripe for final determination by the Supreme Court or the 
Congress. I am committed to enforcing the law as written by Congress 
and inpterpreted by the courts. In the meantime, I am not aware of, nor 
will I drive, any current efforts to refine the EEOC position on this 
issue.
    Question 5. Would you continue to uphold the EEOC's current 
position on Title VII, including in currently pending cases?
    Answer 5. I am personally opposed to gender identity and sexual 
orientation discrimination. I am not aware of, nor will I drive, any 
current efforts to refine the EEOC position on this issue.
    Question 6. On January 27, 2017, the Department of Justice (DOJ) 
filed an amicus brief in an LGBT-discrimination case that Title VII 
``does not...reach[] sexual orientation discrimination.'' DOJ also 
stated that the EEOC was ``not speaking for the United States'' in its 
opposing brief on the matter.\9\
---------------------------------------------------------------------------
    \9\ Alan Feuer, ``Justice Department Says Rights Law Doesn't 
Protect Gays,'' New York Times (July 27, 2017) (online at https://
www.nytimes.com/2017/07/27/nyregion/justice-department-gays-
workplace.html).

        a. Do you believe that the DOJ or the EEOC ``speaks for the 
        United States'' on the issue of Title VII discrimination?
        Answer: Both do, despite their disagreement. This is a 
        situation which cries out for judicial or legislative 
        resolution.

        b. Should disagreements between the EEOC and other Federal 
        agencies over the interpretation of Title VII arise in the 
        future, how will you work to defend the EEOC's role as the 
        ``preeminent'' arbiter of workplace discrimination issues?
    Answer: My goal as an EEOC commissioner will be to defend the 
Constitution and the laws enacted under it. I am committed to fighting 
discrimination in all of its forms, and will work with Congress to 
update laws that are unclear.

    Question 7. The EEOC's Strategic Enforcement Plan (SEP) for 2013-
2016 listed the ``coverage of lesbian, gay, bisexual and transgender 
individuals under Title VII's sex discrimination provisions'' as an 
``emerging or developing'' issue that EEOC should ``prioritize.''\10\ 
The EEOC's SEP for 2017-2021 lists the protection of LGBT Americans 
from discrimination based on sex as an ``emerging and developing 
issue'' priority, but notes that ``the Commission may choose to add or 
remove particular issues as the law develops.''\11\ Would you support 
continuing to prioritize the protection of LGBT Americans from sex 
discrimination as an ``emerging and developing'' issue''
---------------------------------------------------------------------------
    \10\ U.S. Equal Employment Opportunity Commission, ``Strategic 
Enforcement Plan: fiscal year 2013-2016? (online at https://
www.eeoc.gov/eeoc/plan/sep.cfm).
    \11\ U.S. Equal Employment Opportunity Commission, ``Strategic 
Enforcement Plan: Fiscal Years 2017-2021? (online at https://
www.eeoc.gov/eeoc/plan/sep-2017.cfm).
---------------------------------------------------------------------------
    Answer 7. I am personally opposed to gender identity and sexual 
orientation discrimination. The current Circuit Court split, as well as 
the current disagreement between the EEOC and the DOJ, make this an 
issue that is ripe for final determination by the Supreme Court or the 
Congress. I am committed to enforcing the law as written by Congress 
and interpreted by the courts. In the meantime, I am not aware of, nor 
will I drive, any current efforts to refine the EEOC position on this 
issue.

    Wellness Programs

    The EEOC is responsible for enforcing the Americans with 
Disabilities Act (ADA) and the Genetic Information Nondiscrimination 
Act (GINA). Among other requirements, the ACA ``prohibits employers 
from requiring medical exams or inquiring as to whether an individual 
has a disability unless the inquiry is both `job related' and 
`consistent with business necessity''-- though employers may collect 
this information if its collection is ``voluntary.''\12\ GINA, 
meanwhile, ``prohibits employers from requesting, requiring, or 
purchasing genetic information from employees or their families.''\13\
---------------------------------------------------------------------------
    \12\ Epstein Becker & Green, ``EEOC's Wellness Program Incentive 
Regulations Rejected by the District Court,'' JDSupra (August 28, 2017) 
(online at http://www.jdsupra.com/legalnews/eeoc-s-wellness-program-
incentive-2781/).
    \13\ Epstein Becker & Green, ``EEOC's Wellness Program Incentive 
Regulations Rejected by the District Court,'' JDSupra (August 28, 2017) 
(online at http://www.jdsupra.com/legalnews/eeoc-s-wellness-program-
incentive-072781/).
---------------------------------------------------------------------------
    To help reduce the cost of healthcare, the Affordable Care Act 
(ACA) allows employers to offer financial incentives to encourage 
employee participation in wellness programs. In 2013, the Departments 
of Labor, Health and Human Services, and the Treasury (the Departments) 
issued regulations implementing the ACA that permit employers to offer 
financial incentives of up to 30 percent of healthcare premiums for 
participation in ``health contingent'' wellness plans. In 2016, EEOC 
issued regulations designed to align the ADA and GINA with the 
Department's wellness program regulations.\14\ The EEOC's regulations 
asserted that programs with a 30 percent financial incentive were 
``voluntary'' under the ADA, and would have permitted employers to 
condition financial incentives on the participation of an employees? 
spouse in a program that collects their genetic information. On July 
13, 2015, and February 2, 2016, I sent letters to the EEOC expressing 
my concerns with this approach.\15\
---------------------------------------------------------------------------
    \14\ Epstein Becker & Green, ``EEOC's Wellness Program Incentive 
Regulations Rejected by the District Court,'' JDSupra (August 28, 2017) 
(online at http://www.jdsupra.com/legalnews/eeoc-s-wellness-program-
incentive-072781/).
    \15\ See Letters from Senator Warren et al. to Jenny R. Yang, 
Chair, EEOC, on July 13, 2015, and February 2, 2016.
---------------------------------------------------------------------------
    In August 2017, a district court ruled in AARP v. U.S. Equal 
Employment Opportunity Commission that the EEOC's regulations violated 
the Americans with Disabilities Act (ADA) and the Genetic Information 
Nondiscrimination Act (GINA).\16\ The EEOC was directed to rewrite its 
regulations defining how employers can incentivize participation in 
wellness programs.\17\
---------------------------------------------------------------------------
    \16\ Epstein Becker & Green, ``EEOC`s Wellness Program Incentive 
Regulations Rejected by the District Court,'' JDSupra (August 28, 2017) 
(online at http://www.jdsupra.com/legalnews/eeoc-s-wellness-program-
incentive-072781/).
    \17\ Epstein Becker & Green, ``EEOC's Wellness Program Incentive 
Regulations Rejected by the District Court,'' JDSupra (August 28, 2017) 
(online at http://www.jdsupra.com/legalnews/eeoc-s-wellness-program-
incentive-072781/).
---------------------------------------------------------------------------
    Question 8. Will you commit to preserving GINA protections in the 
EEOC's upcoming revision of its wellness program regulations?
    Answer 8. Yes. Any regulation that is put forth to answer the 
objections of the court in AARP must comply with the law.

    Question 9. Will you commit to preserving ADA protections in the 
EEOC's upcoming revision of its wellness program regulations?
    Answer 9. Yes. Any regulation that is put forth to answer the 
objections of the court in AARP must comply with the law. This is an 
area that I am quite passionate about.

    Question 10. Do you believe that participation in an employee 
wellness program can be ``voluntary'' if the terms of the program place 
significant financial pressure on an employee to reveal genetic 
information, including the medical history of the employee or a family 
member?
    Answer 10. At some level, significant financial pressure becomes 
coercive. This level probably varies for different kinds of workers, 
and the eventual regulation should take that into account. I look 
forward to working on this issue with my fellow commissioners and the 
agency staff.

    Criminal Background Checks

    Question 11. In your opinion, what is the appropriate use of 
criminal history background checks in an employment application 
process?
    Answer 11. Criminal history background checks should be carefully 
tailored to the job at hand. For example, a person with an embezzlement 
conviction should probably not be able to get employment in a bank, nor 
a child molester as a daycare worker.

    Question 12. Is it ever unlawful or discriminatory for an employer 
not to hire workers with criminal histories?
    Answer 12. Yes. Given that some racial minorities have 
significantly higher criminal conviction rates, a case could be made 
that blanket exclusion of people with criminal backgrounds is unlawful 
discrimination.

    Question 13. Will you commit to bringing cases against employers 
whose use of criminal background checks has a disparate impact on 
protected classes under Title VII?
    Answer 13. The decision as to whether to bring such a case would be 
highly fact specific. The use of criminal background checks can be 
discriminatory, but there are also legitimate circumstances under which 
employers can use them. I look forward to working on any such cases 
with my fellow commissioners and the agency staff.

    Credit Checks

    Question 14. In your opinion, what is the appropriate use of credit 
checks in an employment application process?
    Answer 14. I see this as analogous to the criminal history 
question. In some circumstances, a bad credit history may be relevant 
to the job criteria. However, such use of credit checks may 
disproportionately disadvantage people of color and single women (or, 
more generally, those with limited financial resources).

    Question 15. Is it ever unlawful or discriminatory for an employer 
not to hire workers because of their credit history?
    Answer 15. This is an undeveloped area of law at this time. I will 
consult with the career professional staff and other commissioners on 
this issue.

    Question 16. Will you commit to bringing cases against employers 
whose use of credit history has a disparate impact on protected classes 
under Title VII?
    Answer 16. This theory has not been fully tested in the courts. 
However, a disparate impact case could be made, depending on the 
specific facts of a case.

    Case Load

    Question 17. Given the current case backlog at EEOC do you support 
the Trump administration's fiscal year 2018 budget proposal to 
eliminate 249 full-time positions at EEOC?
    Answer 17. I am not familiar with which positions would be cut, and 
whether they would affect the backlog. The agency should be funded at a 
level that allows it to do its very important work.

    Question 18. If not, will you commit to advocating against budget 
cuts to The White House?
    Answer 18. I will participate in the internal discussions about how 
to best get the resources to meet the agency's goals, as well as 
describing those goals and constraints to Congress and the 
Administration.

    Systemic Investigations

    Question 19. What are your views on EEOC's systemic program?
    Answer 19. The systemic program is a powerful tool, but should be 
used only where other efforts fail. It can be particularly powerful in 
cases where the people who are harmed are totally unable to advocate 
for themselves, such as migrant workers or people with disabilities. 
The full commission should vote on systemic cases.

    Census

    Question 20. As you may know, the EEOC relies on data gathered in 
Census products such as the American Community Survey. The President 
has proposed debilitating budgets to the Census and has not appointed a 
Director. Will you commit to advocating to the White House for a fully 
funded and staffed Census Bureau?
    Answer 20. Yes. The Census is a critically important function, and 
mandated by the Constitution.
    Question 21. Will you commit to informing the HELP Committee if you 
do not have adequate data from Census products or if the quality of 
Census data that you use declines?
    Answer 21. Yes.

    Congressional Oversight

    Question 22. Please describe your views on the role of Congress in 
conducting oversight of the EEOC.
    Answer 22. I welcome a vigorous and thorough oversight program, as 
it is a core function of Congress. I will advocate for internal and 
external transparency at all times.

    Question 23. Will you commit to promptly and comprehensively 
answering any requests for information that you receive from any member 
of members of the HELP Committee?
    Answer 23. I support the right of members to conduct oversight, and 
will respond in a timely manner to requests.

    Question 24. Will you treat requests for information from Majority 
Members of Congress differently than you will treat requests from 
Minority members? If so, how?
    Answer 24. No. Each request from a member represents a request from 
his or her constituents, the rightful source of political power. I will 
respond promptly and accurately.

     Responses by Dr. Daniel M. Gade to Questions of Senator Kaine
    Question 1. In light of this Administration's attacks on 
undocumented immigrants, it is more important than ever that the EEOC 
continue to vigorously enforce claims of discrimination filed by 
undocumented workers. Will you abide by the EEOC's guidance stating 
that workers are protected under Title VII regardless of their 
immigration status or authorization to work?
    Answer 1. I am not familiar with the legislative underpinning of 
this question. However, I believe personally that people should be able 
to work in an environment free of discrimination.

    Question 2. Strong EEOC enforcement efforts are especially 
important in low-wage jobs because these jobs are disproportionally 
held by workers who are vulnerable to discrimination, including women 
of color. How do you plan to make sure that the EEOC is devoting 
sufficient resources to addressing discrimination in the industries 
where these low-wage jobs are concentrated?
    Answer 2. I agree that the most vulnerable workers are those who 
are in low-wage, high-turnover jobs. I look forward to reviewing the 
EEOC's efforts in that regard, and in furthering protections for those 
workers, if possible, under the law.

    Question 3. Do you believe that employee wellness programs could 
negatively impact individuals with disabilities? Is there tension 
between the Americans with Disabilities Act (ADA) and the 
administration of employee wellness programs? Why or why not?
    Answer 3. Yes, employee wellness programs could clearly fall afoul 
of the spirit and letter of the ADA. As the EEOC revises its guidance 
and regulation on such programs, it needs to ensure that workers do not 
forgo their rights under either the ADA or GINA.

    Question 4. The Office of Management and Budget (OMB) recently 
suspended the pay data collection and reporting requirement under the 
updated version of the EEO-1 form that was originally scheduled to take 
effect in March of 2018.
        a. Do you believe there is a gender-base wage gap that is due 
        in part to lack of transparency around compensation and lack of 
        review by employers into their pay practices?
        Answer: Yes.

        b. Do you believe that some intervention by the EEOC is needed 
        to gain insight into employers? pay practices?
        Answer: The EEOC has an important role to play in combatting 
        illegal pay discrimination. I look forward to consulting with 
        the career professional staff and other commissioners to 
        determine how the EEOC can best fulfill this important 
        responsibility.

        c. What do you think are effective strategies to address pay 
        discrimination?
        Answer: Educating employers and employees on their rights and 
        responsibilities remains critical, and strong, consistent 
        enforcement of pay discrimination laws will remain an important 
        tool.

     Responses by Dr. Daniel M. Gade to Questions of Senator Hassan
    Question 1. Section 14(c) of the Fair Labor Standards Act, 
authorizes employers to pay sub-minimum wages to workers who experience 
disabilities. Often times, this type of employment occurs in a secluded 
environment known as a sheltered workplace. In 2015, with the support 
of the NH business community, New Hampshire was the first State to 
eliminate the payment of the subminimum wage and there have been 
efforts in Congress to end this practice.
        a. Understanding that your role is to execute the current law, 
        do you personally support ending the practice of paying 
        subminimum wage to individuals who experience disabilities and 
        phasing out the practice of using sheltered workplaces in favor 
        of Competitive Integrated Employment?
        Answer: Yes, with the exception that sub-minimum wage positions 
        can be an important stepping-stone to competitive integrated 
        employment. People with disabilities are uniquely vulnerable to 
        abuse and discrimination, and the laws should protect them.
    Question 2. One of the biggest gaps between men and women in both 
education and the workforce is in the STEM fields. Women outnumber men 
as college graduates, but in STEM fields the numbers are quite the 
opposite. In turn, men have higher representation in STEM careers, 
which tend to pay much more than jobs in female-dominated spheres. 
Women who do enter into STEM fields often face heavy discrimination and 
hostile work environments, as many recent articles about STEM-field 
office cultures have demonstrated. They are also shortchanged on pay. A 
2015 study by the American Association of University Women found that 
women in STEM fields are paid only 82-87 percent of what their male 
counterparts are paid.\18\
---------------------------------------------------------------------------
    \18\ http://www.aauw.org/2015/04/14/women-shortchanged-in-stem/.
---------------------------------------------------------------------------
        a. How will you work to combat this systemic gap in pay?
    Answer: It is illegal and immoral to pay women less for the same 
work at the same education and experience levels. Enforcing the laws 
that prevent that as well as educating employers and employees on their 
rights and responsibilities will continue to close this gap.

        b. How will you monitor whether this gap is closing?
        Answer: I look forward to working with the professional staff, 
        commissioners, interested groups, and other government agencies 
        to determine how to best identify illegal pay discrimination.

        c. What steps will you take to ensure that these women's 
        rights? are protected in hostile work environments?
        Answer: Enforcing existing laws, and being transparent about 
        where existing laws may be insufficient, is an important first 
        step.

    Question 3. In 2011, you commented that the notion of women in 
combat roles is ``laughable.'' You now say that your views have evolved 
on this matter.
        a. What specific events or experiences led to your current 
        view?
    Answer: When I arrived at West Point in 2011, I was immediately 
exposed to the breadth and depth of the talent pool of both men and 
women. I mentored a number of wonderful female Cadets, and saw that 
they could thrive in any role if given the opportunity, desire, and 
ability. One of the Cadets I mentored was the first female Sapper 
platoon leader in the 101st Airborne Division, and another is a Ranger 
School graduate and platoon leader in the 82d Airborne Division. I am 
proud of my evolution on this issue, and fully support the idea of 
women serving in any role for which they are trained and equipped.

        b. If you are confirmed, how will you demonstrate that your 
        views have changed?
        Answer: I firmly believe that actions speak much louder than 
        words. I will continue to treat those around me with dignity 
        and respect, and honor the commitment of the men and women in 
        the agency. I will also use my personal evolution as an example 
        to other people as part of my educational and outreach 
        functions.

        c. What data will you collect to ensure that women are being 
        treated fairly in the workplace and across industries?
    Answer: I will work with the other commissioners, professional 
staff, stakeholders, and lawmakers to identify the best ways to combat 
illegal discrimination. I strongly support a vigorous enforcement 
program that protects women and other workers.
        d. How will you penalize companies that the data shows are not 
        treating women fairly?
    Answer: I am not fully familiar with the penalties available, or 
the role of a single commissioner in enacting penalties. However, I am 
committed to working with the other commissioners and the professional 
staff to ensure that our enforcement and litigation programs are 
robust, responsive, and targeted on those who are abusing their 
authority.
    [Whereupon, at 11:52 a.m., the hearing was adjourned.]

                                 [all]