[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
______
STANDING UP FOR THE RULE OF LAW:
ENDING ILLEGAL RACIAL DISCRIMINATION
AND PROTECTING MEN AND WOMEN IN
U.S. EMPLOYMENT PRACTICES
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON
OVERSIGHT AND ACCOUNTABILITY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
JUNE 27, 2024
__________
Serial No. 118-119
__________
Printed for the use of the Committee on Oversight and Accountability
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available on: govinfo.gov,
oversight.house.gov or
docs.house.gov
U.S. GOVERNMENT PUBLISHING OFFICE
56-320 WASHINGTON : 2024
COMMITTEE ON OVERSIGHT AND ACCOUNTABILITY
JAMES COMER, Kentucky, Chairman
Jim Jordan, Ohio Jamie Raskin, Maryland, Ranking
Mike Turner, Ohio Minority Member
Paul Gosar, Arizona Eleanor Holmes Norton, District of
Virginia Foxx, North Carolina Columbia
Glenn Grothman, Wisconsin Stephen F. Lynch, Massachusetts
Michael Cloud, Texas Gerald E. Connolly, Virginia
Gary Palmer, Alabama Raja Krishnamoorthi, Illinois
Clay Higgins, Louisiana Ro Khanna, California
Pete Sessions, Texas Kweisi Mfume, Maryland
Andy Biggs, Arizona Alexandria Ocasio-Cortez, New York
Nancy Mace, South Carolina Katie Porter, California
Jake LaTurner, Kansas Cori Bush, Missouri
Pat Fallon, Texas Shontel Brown, Ohio
Byron Donalds, Florida Melanie Stansbury, New Mexico
Scott Perry, Pennsylvania Robert Garcia, California
William Timmons, South Carolina Maxwell Frost, Florida
Tim Burchett, Tennessee Summer Lee, Pennsylvania
Marjorie Taylor Greene, Georgia Greg Casar, Texas
Lisa McClain, Michigan Jasmine Crockett, Texas
Lauren Boebert, Colorado Dan Goldman, New York
Russell Fry, South Carolina Jared Moskowitz, Florida
Anna Paulina Luna, Florida Rashida Tlaib, Michigan
Nick Langworthy, New York Ayanna Pressley, Massachusetts
Eric Burlison, Missouri
Mike Waltz, Florida
------
Mark Marin, Staff Director
Jessica Donlon, Deputy Staff Director and General Counsel
Alan Brubaker, Senior Advisor
James Rust, Chief Counsel for Oversight
David Ehmen, Senior Counsel
Ellie McGowan, Staff Assistant and Administrative Clerk
Contact Number: 202-225-5074
Julie Tagen, Minority Staff Director
Contact Number: 202-225-5051
------
C O N T E N T S
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Page
Hearing held on June 27, 2024.................................... 1
WITNESSES
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The Honorable Todd Rokita, Attorney General, Indiana
Oral Statement............................................... 5
Jonathan Berry, Managing Partner, Boyden Gray, PLLC
Oral Statement............................................... 7
Inez Feltscher Stepman, Senior Policy and Legal Analyst,
Independent Women's Forum
Oral Statement............................................... 8
Maya Wiley, President and CEO, The Leadership Conference on Civil
and Human Rights
Oral Statement............................................... 10
Opening statements and the prepared statements for the witnesses
are available in the U.S. House of Representatives Repository
at: docs.house.gov.
INDEX OF DOCUMENTS
----------
* Statement for the Record, Damon Hewitt; submitted by Rep.
Raskin.
* Statement for the Record, Sikh Coalition; submitted by Rep.
Raskin.
* Article, Bloomberg, ``Corporate America Promised to Hire a
Lot More People of Color''; submitted by Rep. Burchett.
* Letter, to 13 State Attorney Generals, July 13, 2023;
submitted by Chairman Comer.
* Report, AJPH, Gender Identity Disparities in Criminal
Victimization; submitted by Rep. Frost.
* Statement for the Record, Full and Equal Access for
Transgender Community; submitted by Rep. Frost.
* Article, NBC, ``Black Applicants Rejected for Trump Housing
Finally Speak Out''; submitted by Rep. Mfume.
* Article, New York Times, ``No Vacancies for Blacks'';
submitted by Rep. Mfume.
* Article, Politico, ``Trump Moves to Gut Obama Housing
Discrimination Rules''; submitted by Rep. Mfume.
* Letter, to 21 State Attorney Generals, July 19, 2023;
submitted by Rep. Ocasio-Cortez.
* Report, SPLC, Introduction to Project CAPTAIN; submitted by
Rep. Ocasio-Cortez.
The documents listed are available at: docs.house.gov.
STANDING UP FOR THE RULE OF LAW:
ENDING ILLEGAL RACIAL DISCRIMINATION
AND PROTECTING MEN AND WOMEN IN
U.S. EMPLOYMENT PRACTICES
----------
Thursday, June 27, 2024
U.S. House of Representatives
Committee on Oversight and Accountability
Washington, D.C.
The Committee met, pursuant to notice, at 10:02 a.m., in
room 2154, Rayburn House Office Building, Hon. James Comer
[Chairman of the Committee] presiding.
Present: Representatives Comer, Gosar, Foxx, Grothman,
Palmer, Sessions, Biggs, Mace, Fallon, Burchett, Greene,
Raskin, Norton, Lynch, Connolly, Khanna, Mfume, Ocasio-Cortez,
Porter, Brown, Stansbury, Frost, Lee, Goldman, Tlaib, and
Pressley.
Also present: Representative Balint.
Chairman Comer. This hearing of the Committee on Oversight
and Accountability will come to order. I want to welcome
everyone here.
Without objection, the Chair may declare a recess at any
time.
I now recognize myself for the purpose of making an opening
statement.
I want to welcome everyone to this hearing before the
Committee on Oversight. In recent years, diversity, equity, and
inclusion, or DEI, initiatives have become a divisive subject
in U.S. businesses, educational institutions, state
legislatures, and here in Congress. Unfortunately, many of
these initiatives, which many assume simply promote equal
opportunity, have, in some cases, become integrated into
employment practices to a point where the civil rights of
employees are violated. DEI in some forms means preferencing
racial categories and disfavoring other racial categories. It
is discrimination with a fancy acronym. Racial discrimination
is wrong, it is immoral, and it is illegal in the employment
context.
Next Tuesday, July 2, we will celebrate the 60th
anniversary of the enactment of the Civil Rights Act of 1964
into law. Title VII of that law makes it an unlawful employment
practice to discriminate in hiring or against employees once on
the job because of their race, color, religion, sex, or
national origin. When employers systematically implement
employment practices that discriminate on the basis of race, it
does not matter that it is dressed up in a fancy acronym like
DEI. The law says that is illegal racial discrimination, and it
is illegal whether the victim of that discriminatory practice
is White, Black, Native American, or any other racial category.
All one needs to do is review the disclosures of many Fortune
500 companies to witness the implementation of literal racial
quotas in hiring and promotion.
Hiring managers and executives are encouraged by their
companies to institute hiring quotas on the basis of race or
face cuts to their compensation or incentives. Can you imagine
the disgust of those who crafted the Civil Rights Act to find
out that 60 years later, some of the largest and wealthiest
companies are still not just implementing, but publicly
celebrating the racial discrimination at their companies? State
attorneys general have called out companies advancing such
discriminatory practices such as ``explicit racial quotas and
preferences in hiring, recruiting, retention, promotion, and
advancement.'' They also have also recognized those practices
to include ``race-based contracting practices, such as racial
preferences and quotas in selecting suppliers, providing overt
preferential treatment to customers on the basis of race, and
pressuring contractors to adopt the company's racially
discriminatory quotas and preferences.''
I will enter the Attorney Generals' July 13, 2023, letter
into the record with unanimous consent.
Without objection, so ordered.
The Equal Employment Opportunity Commission, or EEOC, the
Federal Agency responsible for enforcing Federal laws against
illegal racial discrimination and harassment in all types of
work situations, should stand up for the rule of law and
investigate such practices at U.S. companies. The EEOC should
also reiterate the plain language of Title VII prohibiting
racial discrimination in everything it does through guidance,
public statements, data collection, litigation, or otherwise.
Yet, under the Biden Administration, the EEOC has demonstrated
a pattern of public activity inconsistent with the law, and
when presented with evidence of discriminatory practices at
companies, the EEOC appears to have taken no action at all. In
the worst cases, EEOC appears to have filed amicus briefs
actually defending the ability of companies to engage in
racially discriminatory practices. We are encouraged that EEOC
commissioner, Andrea Lucas, has been outspoken in support of
the law, arguing, correctly, that the Title VII is violated if
race was at all or part of the motivation for an employment
decision.
On March 1, 2024, I wrote the EEOC, along with Subcommittee
Chairman Pat Fallon from Texas, seeking a briefing and
documents and information to conduct oversight of this matter.
Since that time, I have been alarmed as well with EEOC
redefining sex discrimination through guidance in a way that
will jeopardize the rights of men and women in the workplace.
On April 29, 2024, the EEOC issued an updated workplace
harassment enforcement guidance, its first since 1999. This
includes new language requiring employers to permit male
employees to use female changing areas and bathrooms. Many
states immediately sued the EEOC after the issuance of the new
guidance on the grounds of government overreach, and those
states seek injunctions to prevent its implementation. EEOC
Commissioner Lucas has called out the new guidance for
effectively eliminating single-sex workplace facilities in
addition to intruding on the right to freedom of speech and
belief.
Thank you to the witnesses appearing here today, and I now
yield to Ranking Member Ocasio-Cortez for her opening remarks.
Ms. Ocasio-Cortez. Thank you so much Mr. Chairman.
Throughout history, Americans have fought for and championed
civil rights. We fought to end segregation, discrimination, and
advanced measures toward an integrated, diverse, multiracial
society. And throughout our history, we have also had to
confront the ugly legacy and backlash of bigotry, ignorance,
and White nationalism. The arguments that protections and civil
rights for historically marginalized populations as ``reverse
racism'' or ``preferential'' is not new.
We passed the Civil Rights Act and Economic Opportunity Act
in 1964. The United States passed the Voting Rights Act in
1965, the Fair Housing Act in 1968, and spent decades
afterwards integrating schools, all in an effort to build a
society where people can work and be treated equally, no matter
their race, gender, religion, or sexual orientation. But
throughout it all, from Little Rock, to Charlottesville to
today, extremists have resisted these efforts to integrate
American democracy. They weaponize fear and claim these efforts
toward a better society are themselves unjust,
unconstitutional, or illegal. Today's hearing is just the
latest in a decades-long attack from right-wing extremists on
any and all efforts to expand civil rights, equity, and freedom
in the United States.
Let us start with the Civil Rights Act, which is designed
to ensure no person is discriminated against for something as
simple as the color of their skin, their gender, or their
religion. Before the Civil Rights Act of 1964 was even passed,
conservative anti-integrationists opposed it, arguing that the
law would somehow violate their constitutional right to
segregated spaces, but they lost that fight. And thanks to the
landmark legislation of the 1960's, opportunities for Black
Americans radically expanded. From 1959 to 1969, the poverty
rate for Black Americans dropped nearly in half, the share of
Black youth completing high school rose from 39 percent to 56
percent, and the gap between White and Black incomes reached
the lowest it had ever been, all after integrationist, pro-
civil rights policies were passed.
Then came the conservative response afterwards. In the late
60's, Republican President, Richard Nixon, determined to gain
support from Southern White politicians by appealing to racism,
promised to slow civil rights enforcement. In the 1970's,
right-wing opponents of civil rights and integration started
framing efforts to ensure all Americans have equal access to
opportunities as ``reverse racism.'' And in the 1980's,
Republicans and right-wing judges, including now Chief Justice
John Roberts, built on that framing to advance a dubious
argument if we do not talk about bigotry, it does not exist.
So, instead of punishing bigoted leaders and organizations and
societal structures and violations of the law and working to
create a more equitable world, the law would instead pretend
race and racism and their real-world impacts did not exist.
This right-wing legal effort continues today. One lawyer
alone, Edward Blum, backed by wealthy right wingers, has
brought more than 2 dozen cases since the 1990's attempting to
remove consideration of race entirely from key civil rights
laws. This resistance to integration in every part of society,
whether it be in schools, or housing, or the workforce, is an
attempt to destroy the progress we have made toward a more
equal and just society. But it is also an economic play, and
that is what is important for people to understand. This is a
way to keep the status quo that gives a handful of the most
wealthy people in our society power and immunity and distract
the working class from attaining the basic rights and
protections we all deserve.
These right-wing billionaires prey on racism, bigotry,
anti-trans panic, and fear to drive wedges in our communities
and prevent resources from going to public services that
predominantly serve working-class communities. They use these
arguments to defund our schools, to defund our communities, and
to defund our public infrastructure. They divide us, and they
dismantle our public housing, and then union bust, and let us
be clear. These extremists are not just destroying the public
institutions that working people rely upon as retaliation in
some culture war. No, defunding services for working people is
the point, and we have seen what happens when they pursue this
goal.
Last year alone, more than 4,200 books were targeted in
right-wing attempts for censorship. Most often targeted for
censorship were those books that cover themes related to race,
gender, and sexual orientation. Last year, a record 510 anti-
LGBTQ bills were introduced in state legislatures, and since
the Dobbs decision 2 years ago this week, 21 states now ban
abortion or are more restrictive than the standard was in place
under Roe. Those opposed to integration see all this as a
victory, and they are not planning to stop here.
Project 2025, the radical right-wing playbook detailing
conservative Donald Trump's agenda for a second term, devotes
an entire chapter to detailing the many ways that the Federal
Government should roll back progress and turn back the clock on
civil rights and liberties in the workplace. I will note that
the majority of this Committee has apparently invited the
author of that chapter to testify here today. This hearing is
fundamentally an insult to the promise of a multiracial
democracy that we all represent and require for prosperity for
a working-class America. This hearing is fundamentally an
insult to all of us.
My Republican colleagues are going to say empty words about
discrimination in the workplace today. They are going to play
on fear and provide yet another opportunity for radical right-
wing extremism, the kind that says if you are not a White, or
cisgender, or straight, or a man, you do not deserve equal
rights, protections over your own body, and the ability to have
control over your own life to take root. But we are not going
to fall for it, and we are not going to let them get away with
it. I yield back.
Chairman Comer. The gentlelady yields back. Today we are
joined by the Honorable Todd Rokita, who serves as the chief
legal officer of the state of Indiana as their Attorney
General. He previously served Indiana's 4th congressional
District as a member of the U.S. House of Representatives, 2011
to 2019. Welcome back. Jonathan Berry is a Managing Partner of
the law firm, Boyden Gray. From 2018 to 2020, he led the U.S.
Department of Labor's Regulatory Office. Additionally, from
2017 to 2018, Mr. Berry served as Counsel to the Assistant
Attorney General of the U.S. Department of Justice.
Inez Stepman is a Senior Policy and Legal Analyst for
Independent Women's Forum, an organization devoted to enhancing
people's freedom, opportunities, and well-being. She is a
Lincoln Fellow with the Claremont Institute and a Senior
Contributor to The Federalist. Last, Maya Wiley is President
and CEO of the Leadership Conference on Civil and Human Rights,
a coalition with more than 230 members that engages in
legislative advocacy.
Pursuant to Committee Rule 9(g), the witnesses will please
stand and raise their right hand.
Do you solemnly swear or affirm that the testimony that you
are about to give is the truth, the whole truth, and nothing
but the truth, so help you God?
[A chorus of ayes.]
Chairman Comer. Let the record show that the witnesses
answered in the affirmative. Thank you. You all may take a
seat. We appreciate you being here today and look forward to
your testimony.
Let me remind the witnesses that we have read your written
statement, and it will appear in full in the hearing record.
Please limit your oral statement to 5 minutes. As a reminder,
please press the button on the microphone in front of you so
that it is on, and the members can hear you. When you begin to
speak, the light in front of you will turn green. After 4
minutes, the light will turn yellow. When the red light comes
on, your 5 minutes have expired, and we ask that you please
wrap up.
I now recognize General Rokita for his opening statement.
STATEMENT OF TODD ROKITA
ATTORNEY GENERAL
INDIANA
Mr. Rokita. Thank you, Chair Comer, Ranking Member Ocasio-
Cortez, and members of the Committee for inviting me to speak
here today. It is good to see you. My name is Todd Rokita, and
I serve as the Attorney General for the state of Indiana, an
office where I manage over 400 employees. And prior to serving
as Indiana's chief legal officer, I spent several years in the
private sector as general counsel for a company that served
other companies, each having over 100 employees. And before
that, as you mentioned, Chair, I served as a Member of Congress
for 8 years as the Subcommittee Chairman on Educational
Workforce, where I served under many chairmen, including the
one here today. So, just like that, I am sure I will be
corrected a few times today as well.
Chairman Comer. She does that a lot.
Mr. Rokita. Like I said, it is good to see everybody. I
also had the honor of serving for 8 years as Indiana's
Secretary of State, where I managed the day-to-day operations
of well near 100 employees. So, I believe these experiences, in
short, give me some unique insights in how our laws regulate
and restrict the use of race and sex in our workplace.
The United States was founded on a basic idea, self-evident
today as it was 250 years ago, and that is all men are created
equal. That idea is embodied in the Fourteenth Amendment as
well, which requires state governments to provide equal
protection of the laws to all persons. The Fifth Amendment
imposes similar constraints on the Federal Government.
Likewise, Title VII of the Civil Rights Act, which prohibits
invidious discrimination in the workplace, advances the goal of
equal treatment in the private as well as public sectors.
So, despite the importance our Nation places on equal
protection under the law, corporate America and academic
institutions have all too frequently embraced the notion,
completely at odds with our founding principles, that to
remediate racial discrimination of the past, we must somehow
engage in racial discrimination now. For decades, that
misguided notion was put into practice through affirmative
action programs on college campuses. More recently, it has
infiltrated workplaces in the form of diversity, equity, and
inclusion, or DEI, initiatives that have become fashionable in
the C-suites of many of America's largest companies.
Such racial discrimination ignores the observation that
Chief Justice Roberts made back in 2007, that the only way to
stop discrimination on the basis of race is to stop
discriminating on the basis of race. In other words,
eliminating racial discrimination means eliminating all of it,
and that is exactly what the Supreme Court recently declared in
Students for Fair Admissions. In that case, the Court held that
the admissions programs of Harvard College and the University
of North Carolina violated the Constitution and civil rights
laws because they relied on race to decide which students get
admitted. The implications of the decision extend beyond the
academic world because picking winners and losers based on race
is wrong and illegal in any context.
It follows that DEI initiatives in corporate America that
require race-based hiring practices are, in most, if not all
cases, likely violations of Title VII. So, that is why last
year I, along with 12 other state attorneys general, sent a
letter to Fortune 100 company CEOs reminding them of their
obligations under the civil rights laws. In our letter, we
stress that these companies cannot discriminate based on race,
including taking discriminatory actions under the guise of DEI.
As Judge Robert Bork once said, to make a distinction between
persons on racial grounds is utterly irrational. That is the
bedrock non-negotiable principle that animates all of our civil
rights laws, and there is no DEI exception to that in the
Constitution or in Title VII.
Our civil rights laws also guarantee the equal treatment of
men and women irrespective of sex. In Bostock v. Clayton
County, the Supreme Court narrowly extended this principle,
mistakenly, in my humble view, to hold that employers violate
Title VII if they fire or refuse to hire an individual because
of sexual orientation or gender identity. Critically, the
Court's decision only concerned the hiring and firing decisions
and specifically declined to address other issues that
employers may encounter. To address some of the questions left
unanswered in Bostock, my office recently issued an advisory
opinion concerning the use of preferred pronouns in the
workplace. We determined that neither state nor Federal law
requires a coworker to use the preferred pronouns and name of a
fellow employee and that an employer is likely not liable for a
supposed misuse of pronouns. No Federal Court has reached and
no reasonable interpretation of Title VII would support a
different conclusion.
So, in summary, as we continue to deal with the fallout of
the Bostock decision, it is of utmost importance that we
address questions like this and give employers clarity about
what the law requires. I am committed to ensuring that all
workplaces in Indiana appropriately balance religious liberty,
freedom of speech, safety, collegiality, and productivity. And,
Chairman, it is just an honor to be here and seeing my friends
and colleagues again. Thank you very much.
Chairman Comer. Thank you. I now recognize Mr. Berry for
his opening statement.
STATEMENT OF JONATHAN BERRY
MANAGING PARTNER
BOYDEN GRAY, PLLC
Mr. Berry. Thank you. Good morning, Chairman Comer, Ranking
Member Ocasio-Cortez, and members of the Committee. My name is
Jonathan Berry, and I am the Managing Partner of the law and
public policy strategy firm, Boyden Gray PLLC. There, I provide
strategic counsel and litigate on issues involving the
overlapping bureaucracies of the administrative state and
corporate America, including matters relating to diversity,
equity, and inclusion programs in the workplace.
I want to thank you for inviting me to testify today on the
important subject of the recent overreach and underreach of the
EEOC. I am honored to currently represent United States
Conference of Catholic Bishops and other plaintiffs in
litigation against the Commission regarding one of its recent
rulemakings. While my views on the subject of today's hearing
are informed by my representation of clients in this and other
matters, I do not appear here today on behalf of any client,
and the views I present are my own. I am also honored to bring
with me here my 10-year-old son, Simon, to witness the
Committee's important work.
The Commission has an important and crucial role to play in
protecting American workers from unlawful discrimination and
advancing equal opportunity for all. Unfortunately, too often,
the Commission currently is working against those objectives,
creating the need for congressional oversight. Three problems
stand out when it comes to the EEOC's treatment of race.
First, it has defended DEI initiatives in the workplace,
but those initiatives often violate Title VII. So-called
reverse discrimination is unlawful discrimination under Title
VII. When corporations make recruiting, training, management,
and hiring decisions that treat non-White employees
preferentially on the basis of race, those initiatives are
generally unlawful. Yet the EEOC has let this discrimination go
largely unpoliced, necessitating a surge in private lawsuits.
Second, the Commission has sued an employer, in this case the
Sheetz gas station chain, under Title VII's disparate impact
provision for merely performing criminal background checks. But
Title VII's disparate impact provision is likely
unconstitutional, and the EEOC uses this powerful weapon
inconsistently in any event. When the Commission employs this
powerful tool arbitrarily, it becomes impossible for employers
to plan around or predict how the law will be enforced. And
third, the EEOC has continued to require that all employers
submit workforce demographic data that breaks their employees
down by race above a certain employer size. But it is wrong to
require employers to classify their employees into racial
categories and report the results, absent particularized
suspicion of discrimination. It encourages everyone involved--
the government, the employer, and the employee--to evaluate the
merits of a human being on racial terms.
So, accordingly, I have three oversight recommendations for
the Committee to consider. First, the Commission must be held
to account for declining the stamp out racially discriminatory
DEI programs. For instance, one firm alone that we sometimes
work with, America First Legal, has filed over 30
discrimination charges against gigantic companies, like Disney
and Salesforce and IBM, whose DEI programs are facially
discriminating on the basis of race. This Committee could
follow up, if it choses, to demand explanation for the lack of
prompt EEOC action on these charges. Second, the EEOC must be
held to account for how it sets its enforcement priorities,
particularly with regard to disparate impact liability. The
Commission could bring suit against almost any employer
selection procedure. Why has the EEOC targeted criminal
background checks and not college degree requirements, which
often have profound disparities that result? The Commission
should be asked that question. And third, and finally, Congress
should end the EEO-1 data collection, or at least limit its
imposition to cases where the Commission has particularized
suspicion. There is no need to continue this extremely broad
data collection, and its racial classification mandate forces
American employers to view their employees as members of racial
categories and not simply as individual human persons
possessing dignity given by God.
Thank you again for the chance to testify this morning.
Chairman Comer. Thank you. I now recognize Ms. Stepman for
her opening statement.
STATEMENT OF INEZ FELTSCHER STEPMAN
SENIOR POLICY AND LEGAL ANALYST
INDEPENDENT WOMEN'S FORUM
Ms. Stepman. Distinguished members of the Committee, I am
honored to testify at today's much-needed hearing. I currently
serve as senior policy and legal analyst with Independent
Women's Forum and Independent Women's Law Center. For almost 30
years IWF has been the leading national women's organization
dedicated to enhancing women's freedom and well-being.
Americans overwhelmingly agree that employers should be
forbidden by law from discriminating on the basis of race and
sex. Title VII of the Civil Rights Act of 1964 enshrined this
principle into law, but is this fundamental promise of a civil
rights era, the colorblind workplace, being fulfilled by
today's interpretation and enforcement of Title VII? I would
argue that, unfortunately, in many respects, it is not. Under
the guise of progress or trying to rectify past wrongs, Title
VII and its enforcement have gone from protecting the
colorblind workplace to undermining it, and I want to talk
today about three ways in which that is happening.
As the Chairman said in his opening remarks, the EEOC is
mostly looking the other way thus far on overt racial
discrimination when it is defended on the basis of diversity or
inclusion or similar rationales. Nobody actually really
disputes legally that Title VII forbids taking into account
race or sex in employment decisions. The EEOC spends much of
its 2,000 employees' efforts on policing, hiring, firing, or
training criteria that even the Commission itself admits
include no intent to discriminate. So, more on that in a
moment, yet it is shockingly common, as we have seen from his
testimony, for huge corporations to implement programs that
amount to the kind of blatant racial quota setting that would
make even Harvard University blush. These violations are
advertised proudly.
Executives and banking technology and consulting came
forward in 2020 to promise to hire a concrete quota of 100,000
Black, Latino, and Asian workers in the next decade. Companies
like Google and Adidas declared to the press that 30 percent of
their new positions would be filled by Black or Latino workers
by 2025. In 2020, at the height of the BLM movement, much of
corporate America made obviously discriminatory promises like
these, and there is evidence that they followed through on
those promises. Of the 300,000 jobs added by the S&P 100, in
the year following the summer of 2020, 94 percent of them went
to people of color.
Using the EEOC's favorite tool, disparate impact, there can
be no doubt then that the discrimination pendulum in America's
biggest companies has swung past equality and meritocracy
toward discriminating against employees who are White, male, or
lack other favored characteristics. But in this case, it is
combined with clear statements of discriminatory intent. Unlike
in the education context, or soft racial preferences but never
were quotas allowed prior to being struck down by students for
fair admissions, making decisions even partially based on race
was never permissible in the employment context, yet companies
had no fear about bragging about these hard quotas.
While Commissioner, Andrea Lucas, has sounded the alarm
about these violations, Title VII's antidiscrimination mandate,
the EEOC as a whole has been oddly quiet about these clear
violations. The EEOC does have a responsibility to protect
women from sexual harassment and discrimination in the
workplace, but in an April 2024 guidance, the Commission does
the opposite by redefining ``sex'' to include gender identity
in a way that denies female employees their rights, privacy,
and safety. The guidance explicitly states that employers who
do not provide access to single-sex spaces on the basis of
gender identity will be in violation, forcing women to use the
restroom, pump breast milk, and even in some cases change or
shower with male colleagues as a condition of employment.
As the preeminent legal organization dedicated to
preserving the commonsense biological definition of sex, the
Independent Women's Law Center has already received inquiries
from women who have already been subjected to the results of
this confusion and redefinition, now encouraged by the EEOC.
One woman who contacted us works with chemicals that require
employees to shower at work every day. The employer allowed a
male to shower with the women on the basis of reclaimed gender
identity. That female employees were uncomfortable with this
accommodation was largely disregarded of course. Another woman
who contacted us tours with concerts, often in venues with
group showers. Here, too, a man with male genitals was
accommodated with access to female showers. Even when the women
tried to delay their own showers, inconvenienced themselves to
avoid him in the shower, the male employee waited in order to
shower alongside them. Unbelievably, in the age of
microaggressions and firing over mild jokes or offhand remarks,
a man waiting to watch his female colleagues shower is now
actually encouraged, not prohibited, by the EEOC.
The EEOC does not have the power to rewrite protected
categories of Title VII, and their invented definition of the
word ``sex'' in the statute is creating exactly the kind of
workplace harassment the Commission is supposed to prevent. If
a male employee repeatedly showing his penis to unwilling
female coworkers does not qualify as sexual harassment under
Title VII, it is honestly hard to see what kind of workplace
behavior would.
American workers want to be judged by their employers on
the basis of the quality of their credentials and work, not
skin color or sex. Title VII's protections against
discrimination and harassment should be enforced sanely,
fairly, and without choosing favored or disfavored classes.
Reforms should be made to rein in out-of-control
interpretations contrary to the plain text of law, returning
Title VII to its original textual and worthy purpose. Thank
you.
Chairman Comer. Thank you. I now recognize Ms. Wiley for
her opening statement.
STATEMENT OF MAYA WILEY
PRESIDENT AND CEO
THE LEADERSHIP CONFERENCE ON
CIVIL AND HUMAN RIGHTS
Ms. Wiley. Thank you, Chairman Comer, Ranking Member
Ocasio-Cortez, and members of this Committee. My name is Maya
Wiley, and my pronouns are ``she/her.'' I am the proud
President and CEO of the Leadership Conference on Civil and
Human Rights. We will enter our 75th year next year, and we are
the civil rights coalition that is responsible for fighting for
and helping pass every single civil rights law you just heard
the Ranking Member mention in her opening statement.
I say that because we have a 74-year history both of
standing and fighting for the Civil Rights Act of 1964 when it
faced a 60-day filibuster in the Senate--60 days, the longest
filibuster in the history of the U.S. Senate. And ever since
then, we have had to link arms across the most diverse
coalition in the country that looks like a majority of the
country, that has most major religious faiths, that has labor,
that has educators, that has everyone, and we have linked arms
to ensure and continue to protect the gains we have made. And
one of the things I just want to acknowledge is that we all
here agree that discrimination is wrong. And that is exactly
why we know diversity, equity, and inclusion, a creation of the
Civil Rights Act of 1964, who we commemorate in its 60th year
this year, helped create.
I want to underscore that DE&I--diversity, equity,
inclusion--has been made divisive, despite the fact that a
majority in this country and businesses have embraced it
because it is good for the bottom line as well as advancing
equal opportunities for everyone. And I just want to remind all
of us that it is Jamie Dimon, the CEO of JPMorgan Chase, who
referred to himself as a self-described, red-blooded, un-woke
capitalist, who is standing by diversity, equity, and inclusion
because it is good for business. And the reality of what we are
seeing is not a violation of Title VII. In fact, what the EEOC
has done is continue to enforce Title VII, and it continues to
be and remain the law of this land. And what we have to
remember, too, is not only is it good for the workforce, is it
good for business, is it good for the gross domestic product,
is it good for a joint and shared prosperous future. It is that
we have compelling need to continue to identify barriers to
equal opportunity for all people.
And it is Jamie Dimon himself, who pointed to, in a recent
interview, the example of how, by having the way to identify,
and he mentioned two Black employees he did not feel good about
losing and why they were not promoted. And it was the ability
to identify the barriers that made him say we cannot keep
losing good people, and everything he has done is in compliance
with the law. And we have a lot of reason to be deeply
concerned about fearmongering over what is working because it
is.
And let me give you a few examples of just how this is good
for everyone because it is because when women challenged height
requirements for police departments, there were 10 percent of
applicants who are White men who did not meet them, and thanks
to those challenges, more White men who were short got jobs
they had been precluded from. And as we continue to see all of
the evidence around how we still see discrimination against
people of color, against women of all races and, yes, against
transgender Americans, we say we all deserve dignity. We all
deserve diversity. We all benefit from it. And if we are not
about inclusion in this country, what are we about? Thank you.
Chairman Comer. Thank you all for your opening statements.
Votes have been called, so the Committee will recess until
10 minutes after the close of the final vote in this morning
series, which I expect to be around 10 minutes after 12.
With that, this Committee stands in recess.
[Recess.]
Chairman Comer. All right. The Committee will reconvene,
and we will begin with the 5-minute questions portion of the
hearing, and I will begin.
Attorney General Rokita, you have joined multiple efforts
with other state attorneys general to warn companies with
unlawful diversity, equity, and inclusion policies the plain
language of Title VII, prohibiting discrimination in employment
settings. Can you speak about the progress of these efforts in
Indiana?
Mr. Rokita. Yes, I appreciate the question. We continue to
monitor these companies, and you are right, it was Fortune 100.
And so, we are basically doing that through their public
reporting these days and their filings with the SEC and other
places like that.
Chairman Comer. What obstacles have you encountered
throughout this process?
Mr. Rokita. With the companies, it is mostly just, you
know, the wokeness of the situation, I would say, the idea that
you have to discriminate against people in order to please
others----
Chairman Comer. Have you got----
Mr. Rokita [continuing]. And not on the weakness of a C-
suite to stand up on principle and morals and do the right
thing for everybody.
Chairman Comer. Right. Have you had obstacles from blue
state attorney generals?
Mr. Rokita. I believe they wrote a competing letter that
was wrong on the points. In order to deal with those attorneys
general wanted to have done in the letter, you have to gut the
Civil Rights Act.
Chairman Comer. Uh-huh.
Mr. Rokita. Right?
Chairman Comer. Right.
Mr. Rokita. Which is pretty plain on its face that you are
not supposed to discriminate on sex, religion, color at all.
Chairman Comer. Right.
Mr. Rokita. And so, the only way to deal with those
attorneys general want to have done is to gut Title VII.
Chairman Comer. So, what could the EEOC be doing for states
who are seeking to end unlawful employment practices?
Mr. Rokita. Well, you know, I associate with the fellow
next to me in his testimony when he said you got to rein the
EEOC back in.
Chairman Comer. OK.
Mr. Rokita. They have taken liberties, and that is to put
it charitably, regarding the interpretation on Bostock and
other similar cases.
Chairman Comer. Right.
Mr. Rokita. And so, until you get the reforms that the
gentleman was talking about done, it is going to be hard or get
people who respect the rule of law in there.
Chairman Comer. Right. Mr. Berry, in your testimony, you
discussed how the EEOC recently filed a lawsuit against Sheetz
Incorporated alleging racially discriminatory hiring practices.
It is a matter of saying that EEOC has declined to enforce
Title VII against other companies with actual and literally
explicit restrictions in their employment practices that are
based on race. So, is the EEOC suing companies over seemingly
neutral policies like requiring criminal background checks and
appropriate use of enforcement resources and lot of more
explicit policies based on race at U.S. companies that you have
observed in your work?
Mr. Berry. That is 100 percent correct, Mr. Chairman. The
EEOC is going out of its way to develop these disparate impact
lawsuits that are really rather intricate, like the Sheetz
lawsuit, and ignoring, as best we can tell, charges against
companies that just right there in big print on their websites
say we are discriminating on the basis of race.
Chairman Comer. So, what should the EEOC be doing about
unlawful company DEI practices based exclusively on race?
Mr. Berry. The EEOC should be taking very serious
investigatory and litigation action against those companies
that are transgressing the core text of Title VII.
Chairman Comer. Ms. Stepman, we have recently seen the EEOC
issue new guidance on sexual harassment in the workplace, its
first time since 1999. In your work with the Independent
Women's Forum, can you describe how your organization is
committed to protecting men and women in the workplace and how
EEOC's new guidance might jeopardize safety and freedom of
employees?
Ms. Stepman. Absolutely. So, there are instances where we
have an over and underenforcement problem, right? As my fellow
witnesses have said, we see facial violations of companies that
announced programs are clearly contrary to the plain text of
Title VII and the interpretation of Title VII. And yet we see
no enforcement of those, and then we see sort of these witch
hunts on other topics. And in this case, we see the EEOC
interpreting the word ``sex'' way beyond not just what the text
says, but way beyond what Bostock says. And putting women in
the situation in work where in any other context, the behavior
of their colleagues would be considered harassment, it would be
what the EEOC is actually supposed to be protecting women
against, and yet they are doing nothing. They are actually
worse than nothing. They are encouraging it.
Chairman Comer. Well, so in my last question, can you
explain what actions the EEOC can take to appropriately
interpret Supreme Court precedent and make clear that it is
protecting and supports men and women in their workplace?
Ms. Stepman. Yes. It would start with rescinding the most
recent guidance where they explicitly go beyond Bostock.
Bostock is very clear. It says it does not apply to single-sex
spaces, to locker rooms, to showers, to bathrooms, but this
guidance explicitly does apply in those places, so it goes well
beyond Bostock. And, again, these are exactly the places where
female employees are likely to encounter males, you know,
identifying as females in a way that, like, is very invasive to
women's privacy, to their safety even, and makes them very
uncomfortable at work.
Chairman Comer. All right. Well, thank you very much. I now
recognize Ranking Member Ocasio-Cortez for her question.
Ms. Ocasio-Cortez. Thank you so much, Mr. Chairman. Ms.
Wiley, I found some of the opening statements quite interesting
that we heard from our witnesses here today, plenty of claims
being thrown out there. One I thought that was particularly
interesting was the idea that a company, a large company,
perhaps a company like Disney or any other employer, aspiring
to maybe have about 30 percent of new hires and having a goal
of 30 percent of new hires being from diverse backgrounds or
people of color, and the assertion that that kind of goal was
anti-White discrimination. I wanted to break things down in
terms of the numbers a little bit. About what percentage of
Americans are non-Hispanic White? I think we are hearing from
the Census, like 59, 60 percent. Is that right?
Ms. Wiley. That is about right. Yes.
Ms. Ocasio-Cortez. OK. So, about 59 percent of all
Americans are White. That would mean about 40 percent of people
are people of color of the U.S. population. And it seems to be
that the argument is that seeking to have 30 percent of your
hires be people of color is anti-White discrimination. Can you
shed some light on the logic of that for me, please?
Ms. Wiley. No, because that is not logical. What I can say
is what is factually accurate around the state of our laws, and
that is aspirations are not unconstitutional. Aspirations are
not antithetical or in any way a violation of Title VII under
our Court's precedence or based on the plain language of Title
VII, and, in fact, this is exactly what the fearmongering is
doing.
We know, for example, that the Equal Employment Opportunity
Commission had a million complaints between 2010 and 2018--a
million complaints. Anybody can file one. A White man who is
experiencing discrimination on the job can file one and it will
be investigated. That is the job of the EEOC. What we are
hearing and seeing is a large swath of cases that are based on
race that are people of color, that are women of all races. In
fact, the majority of hostile environment harassment cases are
disproportionately women of all races, and Black women in
particular, and that is in the statistics that they provide on
the website. I think the question here is not whether people
can file complaints and charges with the EEOC. It is who is
filing them and why, and the aspirations themselves are
consistent with our goals.
Ms. Ocasio-Cortez. Very well said. Thank you. And I find
that point so interesting and fascinating because with all of
this discussion around how diversity, equity, and inclusion
policies are discriminatory in the long history of anti-
integration in this country, and reaction and opposition to the
Civil Rights Act, the Fair Housing Act, and more. I think one
of the things that we need to take a look at is the world that
they are fighting for, a world without diversity, equity, and
inclusion policies, which is to say the default, which is to
say workplaces that are honestly kind of like Congress because
the population of the United States, as you mentioned, is about
59 percent White. Do you know what percentage of Congress is
White?
Ms. Wiley. I do not, but I know that we finally have 60
Members of the congressional Black Caucus, which is progress.
Ms. Ocasio-Cortez. Yes. But even then, 75 percent. White
Americans make up 59 percent of the U.S. population, 75 percent
of Congress. Men are 50 percent of the population and make
about 70 percent of Congress. When we see institutions of
power, and that is reflected in almost any institutional
organization of power, and when we even just try to have the
basic acknowledgement that it would be good to encourage not an
unreflective body, not unreflective workforce, but a workforce
that barely even reaches the proportion of representation of
what every day Americans look like, that somehow anti-White
discrimination, anti-male discrimination, anti-straight
discrimination, anti-cisgender discrimination. I mean, come on,
folks. What are we doing here? What are we doing here?
And last, Ms. Wiley, I was wondering if you could also just
shed some light on the economic impact of civil rights
legislation and if you could draw that link between civil
rights protections and policies and outcomes that help the
working class.
Ms. Wiley. Yes. One of the critical things we have seen as
a result of having civil rights protections and having them
enforced is we have seen an increase in participation and
people getting to the middle class of the American country,
particularly people of color long denied fair and equal
opportunities, and I think it is really important to understand
that that has had widespread societal benefits. For example,
thanks to civil rights laws, we have seen an increase in the
life expectancy of people who are Black, and not only Black,
other people of color, and that is something we all want.
One of the things that is so important to understand about
the Sheetz case because we keep hearing about this and it is
being misrepresented, what the Sheetz case says is not you have
to hire anybody who is a person of color no matter of their
criminal background. It is saying you cannot use what is
colorblind on its face but has the practical effect of denying
employment if it does not bear a relationship to the job that
is going to be done. You can absolutely say an accountant who
has been convicted of absconding with money, you do not have to
hire that person. The reason that the Sheetz case is a lawsuit
is because they did not have evidence that they needed to do
that, and it was discriminating against qualified Black
applicants.
Chairman Comer. Very good. The Chair now recognizes Mr.
Palmer from Alabama.
Mr. Palmer. Thank you, Mr. Chairman. Last July 13, state
attorney generals from across the country co-signed a letter
directed to the CEOs of Fortune 100 companies, warning them of
the serious legal consequences over race-based employment
preferences and diversity policies. They did that in
consequence of the decision of Students for Fair Admissions v.
Harvard. Mr. Berry, can you speak to the impact or
applicability of that case on the legality of DEI corporate
policy in both the Federal and state contexts?
Mr. Berry. Certainly. So, while it arises in the context of
university admissions, the Harvard case looks at some of the
most commonly proffered justifications for racial preferences
and finds them lacking as a matter of strict scrutiny
constitutionally and statutorily under Title VI. That
disapproval of the presented pedagogical benefits of skin
color, not viewpoints, skin color diversity, for example, that
was rejected, and those same kinds of rationales for skin color
diversity would not be available in the Title VII context. I
think it is the most natural reading.
Mr. Palmer. So, should companies look to modify their
hiring practices?
Mr. Berry. So, some are. Others have not gotten the memo
and are still pretending that these are completely distinct,
which is not a good reading of it.
Mr. Palmer. But arguing DEI is good for business, is that
not corporatism over individual rights?
Mr. Berry. So, historically, moneymaking has never been a
judicially cognizable rationale for racial discrimination, and
there is no reason we should be starting with that now.
Mr. Palmer. Thank you for that clarification. Mr. Rokita, I
think your state was one of the states that were included in
those letters to the Fortune 500 companies. The Democrat state
attorneys general criticized this letter. They condemned it for
its tone of intimidation, which purposely seeks to undermine
efforts to reduce racial inequalities in corporate America. How
do you respond to that critique?
Mr. Rokita. Well, the fact of the matter is attorneys
general have a duty to enforce the law. And what we were doing
in that letter, unapologetically, was enforcing Title VII,
which says it is unlawful to discriminate on the basis of sex,
color, religion, and that is exactly what a DEI program does.
By definition, it has to. It has to go against Title VII. And
it is surprising because we are all celebrating here, and in
most places, how good Title VII has been over the decades. I
have heard testimony and comments from both sides of the aisle
here today, and to have attorney generals say, well, enforcing
Title VII is now threatening is disheartening and confusing and
sad. So, we stand by our letter. Where appropriate, whenever we
can, we will enforce the law.
Mr. Palmer. So, you are basically saying that you want to
protect the rights of all Americans----
Mr. Rokita. Exactly right.
Mr. Palmer [continuing]. In terms of their opportunity to
gain employment.
Mr. Rokita. Just as the Civil Rights Act envisioned.
Mr. Palmer. Yes. And I agree with you, and I am grateful
for the position that you have taken on that. Ms. Stepman, in
your role as Senior Policy Legal Analyst for IWF, you have
promoted policies that advance women's rights. I have been
involved with IWF for many years, having worked in the think
tank world, and really very appreciative of what your
organization has done. What does some of these policies look
like, from your perspective, in terms of your efforts to end
discrimination across the board in regard to women?
Ms. Stepman. Right now, we are focusing a lot on protecting
the rights of women under both Title VII and Title IX, in the
face of a redefinition of the word ``sex,'' that somehow
eviscerates all of the protections that women have counted on,
relied on, fought for, when it comes to males who claim
identity as the opposite sex. And in the Title VII context, as
I said in my testimony, we have already received inquiries from
women who are being forced to shower with fully intact males as
part of their job. Again, you know, it is funny in the context
where the definition that the EEOC enforces of ``harassment''
is in so many other cases so stretched, right, you know. A
straight joke, an unintentional remark, right, can be
characterized as creating a hostile working environment on the
basis of sex, and yet, a man waiting to shower with his
colleagues to see them naked in the shower is considered not
just not qualifying as harassment, but actually something that
is required by the EEOC. Well, it is not required by Title VII.
Mr. Palmer. Just one last point here, Mr. Chairman, is that
the Biden Administration dropped over almost 1,500 pages of
regulations that redefined ``sex' to include gender identity.
In other words, they have difficulty in defining what a woman
is. In your opinion, what was the Biden Administration's
primary goal in administering these regulations?
Ms. Stepman. I mean, I cannot speak for the Biden
Administration, but it seems to be to cater to their own
activist side. This is definitely not good for women. This has
consequences, far reaching, and it is actually, frankly, that
the regulations, as you mentioned, are 1,577 pages long. There
is a lot in there. This redefinition of ``sex'' obviously has
massive consequences for women in sports, in locker rooms, but
there is a lot else in there that is bad for everybody. These
regulations gut due process and contravenes of Federal Courts
who have said that it is necessary to provide every American
with due process when accusing them of something as serious as
sexual harassment. They eat into what the Supreme Court has
clearly said as protected speech in terms of, for example,
using pronouns that match the biological sex of a person and
also just, you know, any kind of remarks about, for example,
the role of men and women in society.
You have seen the definition under Title IX of
``harassment'' expand and expand, expand, and, once again, in
these regulations that is put into guidance, and now regulation
by the Biden Administration, in a way that is totally contrary
to the idea of free speech and is, frankly, insulting to the
idea, again, that we are trying to prevent, which is actual
sexual harassment that everyone would recognize this.
Mr. Palmer. Thank you for your testimony. I yield back.
Chairman Comer. Thank you.
Ms. Ocasio-Cortez. Mr. Chair, apologies. I have a UC
request. I would like to seek unanimous consent to enter into
the record this follow-up letter from 21 AGs stating that the
July 13, 2023 letter from Republican AGs as ``disguises
providing information regarding antidiscrimination law, but, in
fact, takes direct aim at efforts to broaden recruitment and
address inequities meant to break down historic barriers.''
Chairman Comer. Without objection, so ordered.
The Chair now recognizes Ms. Brown from Ohio.
Ms. Brown. Thank you, Mr. Chairman. I am deeply
disappointed by some of what we have heard today from the other
side of the aisle and by the very basis of this hearing. Our
Nation's biggest strength is our diversity and our willingness
to embrace it. Instead of applauding diversity, equity, and
inclusion in the workforce, my colleagues on the other side of
the aisle are threatened by it and would like to get rid of it.
They want us to believe DEI programs are racist and sexist,
which simply could not be more further from the truth.
Supporting diversity, equity, and inclusion across sectors is
not only right and just, but it is essential to ensuring
talented, intelligent, and qualified individuals have
opportunities to succeed. Diversity in the workforce has been
shown to increase profits. According to Glassdoor, over 75
percent of job seekers say diversity is an important factor
when considering a job opportunity. Employees who work in
diverse and inclusive environments are more likely to stay with
their employer.
Last month, Congresswoman Haley Stevens and I introduced
the Diverse Cybersecurity Workforce Act to promote diversity in
the cybersecurity field. Let us break down the makeup of the
cybersecurity workforce. Nine percent are Black, 4 percent are
Hispanic, 1 percent is Native American, and only 24 percent are
women. There are over hundreds of thousands of unfilled
cybersecurity roles in this country ready to be filled, and
they should reflect the strategic diversity of this country.
Diversifying the cybersecurity workforce is just one example of
how diversity, equity, and inclusion makes our country safer,
our economy stronger, and our diverse communities more
prosperous. DEI programs are needed and necessary.
So, Ms. Wiley, if you could share with us why it is
important for both the private and public sector to be
intentional about incorporating diversity, equity, and
inclusion efforts, particularly in recruitment and talent
development.
Ms. Wiley. Thank you for that question, and as corporations
themselves have pointed out, both being in compliance with the
law as they do it, but it has increased their ability to be
competitive. The more diverse the workplace, the more
competitive the business. There is data and research behind
this. In addition, it helps them attract better applicants for
their jobs. And they know it, they have been hearing from
people they have been trying to hire that they are looking for
diverse workplaces, and it has increased the job satisfaction
of people on the job.
One of the biggest misunderstandings about DE&I programs is
what they do because a huge part of what they do is give
employees ways to get to know each other and find ways of
working together effectively. So, when we are talking about
diversity, equity, and inclusion, we need to remember that it
is identifying unfair barriers to opportunity for highly
qualified people, whether it is promotion or hiring, as well as
to ensure that employees are working well together, enjoying
the workplace, and wanting to stay there. That is good for
everyone, and it is nondiscriminatory. It does advance our
civil rights.
The only last point I want to make about this because we
keep talking about this in the wrong ways, the right way to
think about this is to think about the fact that while we have
made progress, and we celebrate it, that we at the same time
seen research that if your name sounds White, and you have the
exact same resume as the person whose named sounds Black, exact
same resume--these are experiments, these are tests, this is
research--you are half as likely to get the job or 26 percent
less likely to get the job if you are the Black person or if
you have a Black-sounding name or a Latino name. That is not
fair, equal opportunity. It is discrimination masking in
colorblind ways in the law. And our case law is designed to say
you do not get to hide behind the fact that you have not said
it out loud.
Ms. Brown. Thank you for that. And while it is important to
focus on increasing diversity in recruitment efforts, it is
also important to focus on diversity, equity, and inclusion in
employee retention. Can you tell us how Title VII helps with
employee retention, Ms. Wiley?
Ms. Wiley. Well, essentially, I use this example with CEO
Jamie Dimon from JPMorgan Chase, who is a huge proponent of
DE&I programs and has said he is sticking by them like those 21
attorney generals have said. But part of what it helped him do
is see when he was losing talent, he did not want to lose Black
employees who are passed over for promotion. It helped identify
where and how they could create more fair, more practically
important opportunities to ensure that the opportunities were
available for advancement for people who are Black who are
qualified for the promotion. It is retention and it is
retention in compliance with Title VII. It is why we have to
ensure that we are not being blind to where and how we are
harming full and fair and equal opportunity.
Ms. Brown. Thank you. My time has expired.
Chairman Comer. The Chair now recognizes Dr. Foxx from
North Carolina.
Ms. Foxx. Thank you, Mr. Chairman, and I thank the
witnesses for being here today. Welcome our colleague, former
Congressman Rokita, now Attorney General.
Attorney General Rokita, as I have said before, the EEOC is
detached from reality. Their harassment guidance from April 29
is nothing more than a homage to leftist activists who want
Americans to conform to their warped political ideology, from
the mandated use of pronouns to a denial of biological facts.
The EEOC seems more interested in appeasing the mob than
undertaking commonsense policymaking to protect workers. File
this away as another item in the long list of failures
spearheaded by this Agency.
The EEOC's guidance from April 29 states that harassment
covered by Title VII of the Civil Rights Act includes,
``repeated and intentional use of a name or pronoun
inconsistent with the individual's known gender identity,
misgendering'' and ``the denial of access to a bathroom or
other sex segregated facility consistent with the individual's
gender identity.'' The EEOC claims to be implementing the
Supreme Court's Bostock decision with this guidance. Do you
think the EEOC is overstepping its authority and going beyond
the Bostock decision with the April 29 guidance?
Mr. Rokita. For sure, Chairwoman. Thank you for the
question. It is going way beyond Title VII, which, again, Title
VII is just about sex, religion, color, terms that are very
clear. Now, what the Bostock decision did is, and as I said in
my opening remarks, I think they got it wrong, in my humble
opinion, but it is the law of the land. They went a little bit
further in the hiring/firing decision to include same-sex
employees and transgender, but that is it, just in the hiring
and firing. These other things that the EEOC has read in are
like some kind of wish list of things that just simply are not
there.
Ms. Foxx. In your testimony, you did note that their
guidance runs foul the First Amendment and even admits to it.
Can you elaborate on that and speak to why the EEOC would
knowingly do that?
Mr. Rokita. Well, what I do know is that we analyzed
Federal and Indiana law. Clearly, we have an official opinion
published on this, and there are First Amendment implications
to requiring to call someone by their preferred pronoun or not,
and you cannot compel that kind of speech, and so the EEOC
guidance on that is completely wrong. We do not find that there
is a requirement for either employer or other employees to call
someone by that certain employee's preferred pronoun.
Ms. Foxx. So, would you agree that the EEOC should address
your concerns with this harassment guidance that you have
raised?
Mr. Rokita. No. I associate myself with the testimony that
was given a little bit earlier that these wrongheaded guidance,
which really do not have the force and effect of law, their
interpretations really need to be rescinded.
Ms. Foxx. Thank you. Ms. Stepman, can you speak to how the
EEOC believes it has the authority to go beyond the Supreme
Court's most thoughtful decision with the April 29th harassment
guidance?
Ms. Stepman. Yes. I mean, I think the Attorney General
really intimated the reason there. I mean, there is a
longstanding now problem with agencies putting out guidance,
not even going through the APA rulemaking process, right, which
is itself a kind of replacement for democracy and
constitutional governance. Going beyond even those APA
standards that at least require notice and comment, have all
kinds of safeguards on it to just issuing a memo, issuing a
guidance and saying, hey, this is how we are going to interpret
the law, it may be very, very different from how courts have
interpreted the law in the case of Bostock. It may be very
different from the plain text of the law, but this is how we
are interpreting the law now, by bureaucratic fiat. And
basically, it is a heads up to all the people who would be
covered under that law, and it is very effective, but it is not
the way that governance is supposed to work in this country.
Ms. Foxx. Thank you. In your testimony, you suggest that
harassment should be defined objectively, such as the standard
in Davis v. Moore County Board of Education. How would that
differ from the EEOC's overreaching new harassment guidance?
Ms. Stepman. Yes. As we have mentioned, there is both an
over and underenforcement with harassment. On the one hand,
these kinds of either unintentional or straight remarks, they
could be added up by different acts in office, right? One guy
might have made an off-color joke one time in front of a female
employee. Another employee has a picture of his wife at the
beach on his desk, right? And these little incidents, even
though they are not severe, they are not pervasive, they are
not objectively offensive, right, can add up into a liability
for the employer.
But we have seen since the 1991 Act, in particular, has
been a kind of move by employers to police and micromanage the
speech and opinions of their employees for fear of offending
the most offendable among us, and that has really led to a
situation if we are worried about diversity in the workplace,
what about diversity of thought? People are afraid to speak
their minds--more than 60 percent in a lot of these polls at
work--because employers are very, very careful about opening
themselves to liability in that way. And then on the flip side,
as I said----
Ms. Foxx. Thank you, Ms. Stepman, we are out of time. I
appreciate it. Sorry, Mr. Chairman.
Chairman Comer. You are good. Thank you, Dr. Foxx. And the
Chair now recognizes Mr. Frost from Florida.
Mr. Frost. Thank you, Mr. Chair. I want to start off by
saying that I find that bigotry, transphobia, and outright
attacks on our LGBTQ+ community, these attacks that we have
heard in this hearing today are disgusting and unacceptable.
Ms. Wiley, we have heard a lot of bigotry in this room today,
highly uncomfortable to sit here as one of these witnesses used
their testimony time to, I guess, complain about the fact that
maybe too many Black and Brown people are getting jobs is what
that sounded like.
Once again, Republicans are trying to stoke fear by
claiming that transgender people using the correct locker room
somehow endangers cisgender women, yet research shows that it
is trans folks who are in danger. Trans folks are more than 4
times likely as cisgender people to be the victims of violent
crime, including sexual assault. And groups who support victims
of sexual assault agree with this, bipartisan, nonpartisan
groups, dozens of groups, including the National Alliance to
End Sexual Violence, they signed a letter supporting full and
equal access to locker rooms for trans folks.
So, I ask unanimous consent to enter this letter into the
record, as well as a study by Williams Institute that shows the
high rates of victimization for transgender individuals.
Chairman Comer. Without objection, so ordered.
Mr. Frost. I want to turn to the EEOC's final rule on how
to implement Pregnant Workers Fairness Act, which, I will
remind my colleagues, passed the U.S. House of Representatives
with over 300 votes, with over 200 co-sponsors, a bipartisan
piece of legislation that my colleagues did not have any
problems with until they found out that maybe we can use it as
a wedge issue to rev up some of our bigoted voters for the
election this year. This important act requires employers to
accommodate workers with limitations caused by pregnancy,
childbirth, or medical conditions. In its rule, the EEOC makes
it clear that pregnancy, childbirth, and related medical
conditions includes abortion care.
Ms. Wiley, my colleagues do not seem to understand why this
is so important. Could you walk us through that and explain the
potential consequences of undermining this important
protection?
Ms. Wiley. Well, I think, Congressman, you just did. I
think that is a perfect explanation about the importance of the
rulemaking to protect people from discrimination. And here is
one of the things that I want to appreciate Attorney General
Rokita for is the acknowledgement that it is the Supreme Court
of the United States of America. In fact, a Neil Gorsuch
opinion, a conservative justice that found that Title VII's
prohibition on sex discrimination also prohibits employers from
firing an employee ``simply for being transgender.'' So, what
we are hearing from the EEOC is it is taking to heart the
directive from the Supreme Court that the plain language of
Title VII and its prohibition against sex discrimination covers
people who are transgender. And by the way, and as we know with
all civil rights laws, when we protect the most vulnerable, we
protect everyone.
The reason it is so critically important is because those
protections extend to everyone, and we should remember that
because it is one of the greatest lessons that we have seen and
why we should absolutely refuse to allow fearmongering about 1
percent of the U.S. population. The transgender community in
the United States is 1 percent of the U.S. population. And so,
the idea that states and localities, 200 municipalities, 18
states that are already providing the protections against
discrimination we are talking about, some of them for years
have not seen the fear, the violence, any of the things that we
are hearing today. And the reason we are hearing it is because
there is not a fact-based disagreement, but an ideological one.
And what we should be dealing with is facts because everyone is
protected by our civil rights laws--everyone--and it is the
facts that ensure we are protecting the most vulnerable.
Mr. Frost. Thank you so much, Ms. Wiley. I do not have much
time left to get to my other questions, but I just wanted to
let you keep talking because I agree with everything that you
just said. And it is just a shame to sit in these hearings,
watching my colleagues attack programs that also are designed
to help veterans. So, to attack these programs is to attack
what I consider true patriotism, which is more than a bald
eagle bearing flag. It is about loving the people who live in
the country, no matter who they are. Thank you. I yield back.
Chairman Comer. The Chair recognizes Mr. Biggs from
Arizona.
Mr. Biggs. Thank you, Mr. Chairman. Thank you witnesses for
being here.
Andrea Lucas, who was a commissioner of the EEOC, published
an article warning that race-conscious corporate diversity
programs may violate Title VII of the Civil Rights Act, which
prohibits employment discrimination on the basis of race,
color, sex, religion, or national origin. Mr. Rokita, in your
written testimony, I am quoting from it now, it says, ``DEI
programs that consider a job applicant or employee's race or
color in hiring, retention, promotion, and other terms,
conditions, or privileges of employment could be considered
unlawful under Indiana's Civil Rights Act.'' Is that also true
under Federal law?
Mr. Rokita. Thank you for the question. Yes, Indiana's law
in several respects mirrors the Federal law. So, the point
there I was making is that Title VII prohibits race-conscious
employment actions, period, full stop. It does not matter how
the program is labeled.
Mr. Biggs. And, Ms. Stepman, in your written testimony, you
say something similar. It said, ``Instead of upholding a system
in which all employees, regardless of their race, sex, or other
characteristics irrelevant to work performance, are judged on
their merit, talent, qualifications, grit, intelligence, or any
other of the myriad qualities that make a good hire, too often,
Title VII, in practice, as it exists today, not only fails to
do so, it does the opposite.'' How so, and can you expand on
it, please?
Ms. Stepman. Sure. Again, we have the same story of over
and underenforcement, on the one hand, completely ignoring
publicly delivered and announced racial quotas. And I am sorry,
announcing that 30 percent of your workforce will be of a
particular race by a particular date is a quota. It is an
obvious quota. It is the kind of obvious quota that even
university admissions departments cannot say or are reluctant
to say even before SFFA and it is forbidden by Title VII.
Somehow these companies have very little fear of announcing
these things to the press. And while on the other hand, they do
have to be careful when, for example, as the Sheetz case--it
has been repeatedly brought up here--they use a neutral
qualification, like not, you know, screening out job applicants
who have felonies on their record, the sort of policy
considerations about that, about mainstreaming inmates back
into society. Those are irrelevant to the point. This is a
neutral qualification that the employer is using, and yet they
find themselves having to show, and being on the defensive in
having to show, this very tight connection to the job in the
way that the EEOC enforces Title VII.
So, on the one hand, we have a neutral qualification and
people are being hauled into court for using it. On the other
hand, we have blatant racial quotas that are being ignored by
the EEOC.
Mr. Biggs. So, Mr. Berry, you wrote, ``The EEOC has
defended DEI initiatives in the workplace even when those
initiatives create the very Title VII violations that the EEOC
is entrusted to stamp out.'' Expand on that, please.
Mr. Berry. Certainly. So, the Commission has taken the
position, we have seen a couple of times today, which is to
equivocate between the existence of disparities and an actual
intentional discrimination. And repeatedly, over and over
again, the Commission has declined to take action against
companies that are saying the quiet part out loud. They are
saying we are going to have, come hell or high water, greater
percentages of certain racial categories reflected, not because
we have done a labor market analysis, but because we think that
a certain kind of racial balancing is appropriate. The exact
kind of interest the Supreme Court has said is grossly
inappropriate.
Mr. Biggs. And so, does that get to what you talk about in
your testimony extensively about disparate impact liability?
Mr. Berry. Yes, exactly. Disparate impact liability is very
inconsistently enforced, and is not being brought to bear, as
best I can tell, against the widespread practice of college
degree requirements as a screening mechanism.
Mr. Biggs. Mr. Rokita, is tying one's continued employment
or pay to statistical data, which Ms. Stepman has talked about
as being perhaps a quota, is that in any way aspirational and
protected?
Mr. Rokita. No, I do not think so.
Mr. Biggs. Ms. Stepman, any comment?
Ms. Stepman. Yes. I guess my only comment would be that I
agree with my fellow witness that the real disagreement here is
whether any disparity, whether racial, sex, or on any other
basis, is suspect immediately as created by discrimination.
There are disparities in everything. There is virtually no
qualification that an employer could ever set that would have
no race or sex disparities. So, that is how the EEOC looks at
the issue in this way. What it really does is expands its own
power because it is arbitrary.
Whatever issue the EEOC looks at, whatever qualification
will spit out some kind of disparity, and so, but they do not
look at other qualifications, as my witness also said, my
fellow witness, for example, using college degrees as a
qualification. Fewer men have college degrees. Fewer Black
Americans have college degrees, right? Those are disparities
that exist, but the EEOC does not look at that qualification
and say, well, it is against our civil rights law to require a
college degree, probably because that would be very unpopular
with their friends in universities.
Mr. Biggs. Thank you, Mr. Chairman. My time has expired.
Chairman Comer. The gentleman's time has expired. The Chair
recognizes Ms. Lee from Pennsylvania.
Ms. Lee. Thank you, Mr. Chair. Just to pick up where my
colleague from Florida left off when he ended. It is not just
that we have colleagues here in this Committee who are making
the claim that too many Black folks are getting jobs, but
indeed, it feels like the entire premise of the cultural war
that we are seeing against diversity, that we are seeing
against equitable practices that might possibly level the
playing field, right, that there are too many Black folks who
are getting jobs. There are too many Black folks who are
getting degrees. There are too many Black folks who are getting
opportunities that were not historically for them.
So, to just remind people why we are here, the reason DEIA
policies were even created was to right existing wrongs. The
reality is, is that we have some members of this Committee who
were alive during Jim Crow, they experienced segregation
firsthand, yet now they are acting like we are suddenly in a
colorblind society, that we do not need to codify protections
or that the only victims here are wealthy or the White or the
privileged. How easily we forget.
But we know statistically that they are not the ones whose
communities have been intentionally polluted or targeted by
police or the war on drugs. Their neighborhoods have not been
redlined. Their schools have not been decimated by racist,
inequitable funding schemes that commonwealths like
Pennsylvania, my own, are finally recognizing as harmful and
attempting to fix. Lest we forget, the reason HBCUs and other
minority-serving institutions exist is because we were not
accepted into predominantly White institutions. They are not
targeted by how they look or how they dress or how their hair
grows.
Truthfully, we recognize that this crusade has been going
on since indeed the passage of the Fourteenth Amendment, if not
earlier. Every time Black folks or Brown folks or women or
queer folks or the disabled are able to achieve some semblance
of equity, we continue to be demonized or face ad hominem
attack, so we did not earn our spot or we do not belong here,
to ensure that they can continue to concentrate wealth and
power with the few.
Ms. Wiley, in your opening statement, you said that this
kind of weaponization of civil rights was nothing new. Could
you please elaborate on that?
Ms. Wiley. Well, sadly, and one of the reasons we have
disparate impact recognized by the Supreme Court of the United
States is because every single time we have made advancements
in civil rights laws, what we have seen is active efforts to
skirt them, as well as not paying attention to whether or not
someone is qualified for the job that you are hiring.
So, again, sadly, at every turn, we have been having to
fight to protect the gains even as we can quantify how much it
has benefited every single one in society. And just because we
are talking a lot about race, and I do not want to lose gender
in this. Going back to police departments, we made real
progress, as I said, not just with getting women on the police
forces, but improving the opportunity for White men who were
being excluded because of things that did not have anything to
do with the job like height. But it stalled about 20 years ago
at 12 percent women, and even ``Police Chief Magazine''
recently has been raising the alarm bell that police
departments are utilizing measures of, say, upper body strength
that are not necessary to qualify to be a police officer, that
may be keeping women off the force.
But if we see a stagnation in progress that does not have
to do with the qualifications for the job, that is telling us
there is a barrier that we as a society should want to remove.
And whether it is voting rights, whether it is employment,
whether it is education or public accommodations, every single
time we say let us pay attention to the people who are
excluded, a lot more people of every race, of every background,
get more opportunity, and that is what we should all be for.
Ms. Lee. We are going to leave it right there. That is my
time. I yield back.
Chairman Comer. The Chair recognizes Mr. Grothman from
Wisconsin. Oh, I am sorry, Mr. Sessions from Texas.
Mr. Sessions. Mr. Chairman, thank you very much. The
discussions have been very important today, and I think the
issue is laid out where the American people know what they
think is right and wrong. Discrimination, I think, defines
itself in existence of law over and over and over. And it tries
to give a balance, not just to the importance of it, but also
about how it would be looked at by conduct, not just the law,
but really how we ought to move as a society.
Attorney General Rokita, you and I have intellectually
disadvantaged, disabled children. We had to fight lots of
battles and still do, but we ask for accommodation. I do not
think we ask to overrule or move over. We ask for
accommodation, the opportunity to participate. I note on page
10 of your brief that you gave us, ``Indiana State Attorney
General Advisory Opinion Concerning Use of Preferred Pronouns
in the Workforce.'' This is very interesting because it goes
well beyond something that I think someone could see on its
surface, something that someone could easily understand.
We can see color, we can see a sex, we can see things. We
know discrimination when we see it, attitude and other things.
I note in here that you find it is not against the law, and yet
people are held accountable. There are Federal rulings on this
by government, EEOC, perhaps most importantly. This disturbs
me. Where is the line between discrimination defined in law and
this overwhelming desire for people to push simple things like
pronouns or competing against women?
Mr. Rokita. Thank you, Congressman. I mean, that is exactly
it. You have painted the picture correctly. Title VII was very
clear in the words that it used, and Bostock has taken it a
very tiny step further, still connecting it to the word found
in Title VII, particularly the word ``sex.'' But what the EEOC
does and the reason that the legislator who asked for this
opinion wanted it, was to stop that creep, to stop that
crawling by unelected bureaucrats.
Mr. Sessions. I think we all need to know where the line
is.
Mr. Rokita. Right, and Title VII----
Mr. Sessions. It would be inappropriate if I necessarily
meaningfully discriminated against someone, but there are a lot
of things we do not know about people that we cannot see, that
we do not know.
Mr. Rokita. Right, like whether it is our sons or in any
context, and that is why the laws have to be clear. They have
to be unambiguous. And that is why it is wrong for unelected
bureaucrats to try to take those words, those laws that you are
supposed to create and make their own interpretations of them,
and then try to enforce them, which is exactly what is being
done at the EEOC today, and why it is important to have
opinions like the one we did in Indiana.
Mr. Sessions. Ms. Stepman, I found your arguments most
compelling because I believe that most Americans want to do the
right thing, but they expect that the law will equally be
balanced in that endeavor. And we tend to hear about how
capitalism and corporations or businesses want all these
things, but really what it gets down to is that I think we,
deep down as Americans, want to be good to people. We really do
not want to hold things against anybody, but we also recognize
when that line is violated, when it did not work for me, or it
did not work for a group of people. Tell me more about how we
fix this. Is it done in state laws? Does it have to be done at
a Federal law?
Ms. Stepman. Well, Independent Woman's Voice has been quite
active, and we have something where we basically are advancing
a definition of ``sex,'' which we did not used to have to do,
right? This was something that was common sense. Everybody
understood what a woman was, what a man was, but now we find
that it is necessary to actually define that in state law in
order, for example, to protect sports opportunities for young
women.
Unfortunately, this Administration in 2021, for example, we
had West Virginia pass exactly that kind of law, defining the
word ``woman'' and only permitting females to participate in
public youth sports, a very reasonable thing for a state to do.
We actually had the Biden Administration come in--this is even
before their regulatory drop of 1,500 pages, right--come in and
say, no, we interpret Federal law, Title IX, to basically say,
no, the state of West Virginia cannot define the word
``woman.'' So, I do think, ultimately, something will have to
be done on the Federal level.
And the first thing that has to be done on the Federal
level is for agencies to stop going beyond their mandates and
doing and usurping the job that this body has, right? The so-
called Equality Act was put forward in this body multiple times
to add gender identity to Title VII and to our civil rights law
generally. That law did not pass. And so, what we have are a
series of agencies, whether it is the Department of Education
or the EEOC, putting out either guidance or regulation that
does what they were not able to do politically, and I think
they cannot do it politically because of exactly what you said.
Americans do not believe that the reality of biological sex is
bigotry.
Chairman Comer. Thank you very much. The Chair recognizes
Representative Tlaib from Michigan.
Ms. Tlaib. Thank you so much, Mr. Chair. I know just
hearing all this, it just feels like colleagues just want to
pretend that racism and discrimination actually even exist. I
do not know how you address systemic, you know, inequity,
different various policies and systems without actually, like,
fully understanding the full scope of, again, the systems and
how they were created and the history of how it was created and
all of that. You know, I always say this to people. I am in an
institution that was not really ready for someone like me, and
it is very clear, you know, being one of the first Muslim women
here.
You know, CEO Wiley, like, one of the things that I am
really taken aback, though, and have only seen this, you know,
maybe in my lifetime. I know it happened before, but one of the
things that I see in regard to trying to even deny Black
history as American history is really incredibly, I do not
know, painful that we will not even acknowledge that those
systems and that form of oppression even existed. And I was
looking up, it was like, what, 3,362 instances of certain books
being banned. I mean, you know, everybody is always shocked,
``Beloved'' by Toni Morrison, CEO Wiley, ``I Know Why the Caged
Bird Sings'' by Maya Angelou, ``The Color Purple'' by Alice
Walker. I mean, it just goes on and on. And so, I do not know,
talk about, I think, the importance here of, you know, how we
address systemic inequality without even acknowledging our
history.
Ms. Wiley. Well, thank you, Congresswoman, for that
question because I think part of what it lays bare is the fact
that we are seeing a very organized, highly financed, and
concerted effort by some extremist ideologues to say we cannot
learn about slavery and, in fact, we should go one step further
in one instance, and we should say that there are some good
things about slavery, require it in our curriculum, even though
that is a lie. It is counter to history.
Pan America has actually documented that roughly 80 percent
of all banned book titles are written by or about people of
color or LGBTQ people, so that is targeted. That is not
general, and none of that has to do with age-appropriate
learning. And some teachers have been fired for saying, no, but
this is consistent with the curriculum I am being asked to
deliver. The fact that we have seen a political attack on AP
African American History, demanding that things that are
historical facts be taken out of the curriculum, that is
political. That is political. It should be nonpartisan.
Ms. Tlaib. It is unbelievable to me that they just want to
erase it or try to reinterpret it in 2024 and how that is
actually the opposite. This is why, if anything, it proves we
need some of these policies in place. I think policies are
already in place. It has been embedded in place before I even
got here.
Ms. Wiley. I want to connect it to employment.
Ms. Tlaib. Yes.
Ms. Wiley. Let us connect it to employment because there is
a recent viral video from a few days ago, a Black woman FedEx
driver----
Ms. Tlaib. That is right.
Ms. Wiley [continuing]. Who then says she was told by her
supervisor that there was a town she could not deliver in
because it was like a sundown town it was so racist. She did
not believe it. She had 2 hours off, and so she wanted to go to
the Walmart that was in that town. It was 10 minutes away from
her route. She drives over there. It is so hostile, she leaves.
Her supervisor has to tell her, I told you so, you know.
But here is the thing. So, we are making businesses now
have to tell and assign drivers based on their race for their
own safety around their routes, and this is in the Midwest.
That is because we are not doing what even so many companies
are now being threatened with for doing, which is saying how do
we understand each other's experiences.
Ms. Tlaib. I agree, CEO Wiley, and I will end, Chairman.
But, you know, I grew up in Detroit, and we grew up with
community mothers, not just your own biological mothers, and
they said, oh, this is not the first time we had to pretend
that it did not happen, we had to pretend. Oh, we could not
live in those neighborhoods. It is like, move on. That is what
they were forced to do as children, you know, just move on,
stop talking about it, and I think that is incredibly dangerous
because we end up repeating history. Thank you so much. I
yield.
Chairman Comer. The gentlelady yields. The Chair recognizes
Ms. Mace from South Carolina.
Ms. Mace. Thank you, Mr. Chairman. The Fourteenth Amendment
of the Constitution and the Title VII of the Civil Rights Act
of 1964 prohibit discrimination on the basis of sex. That has
been the law of the land for decades. Unfortunately, Joe Biden
is confused. Shocker. The Biden Administration and their
``gender Taliban'' cannot even define what it means to be a
woman. They are erasing what it means to be women and
endangering women and girls in the process.
The Biden Administration's Equal Employment Opportunity
Commission in April of this year updated guidance on what
constitutes sex-based discrimination. Under the Biden
Administration's guidance, to use someone's biologically
correct pronouns or their legal name, guess what? It is
workplace discrimination. Acknowledging someone who identifies
as a different gender without their permission, workplace
discrimination. Insist that biological men use the bathroom or
locker room designated for biological men and not terrorize
women and girls in the girls' bathroom, workplace
discrimination.
Where did we lose our way? This is absurd. I tell my kids,
you do not come home from school with pronouns, you come home
with A's and B's. I do not want to know your pronouns. I do not
care about your pronouns. That is not what we should be talking
about in school. We should be talking about A's and B's, math,
writing, and arithmetic. This guidance by the Biden
Administration infringes on the First Amendment rights of
American workers, threatens the safety of women and girls, and
serves to further erase and erode what it means to be a woman,
which leads me to my first question, Ms. Wiley. Can you define
what a woman is?
Ms. Wiley. A woman is a person who says she is. And let me
just tell you one story about this because when I was a child--
--
Ms. Mace. Oh no, you are not going to tell me a story. We
are not doing that right now. It is not story time.
Ms. Wiley. Yes, it is story time because when I was a
child, I was called a boy.
Ms. Mace. No, it is not. I am going to reclaim my time. Be
quiet. I am going to reclaim my time right now. Biological
women are real women. A guy born as a man who wants to pretend
to be a woman and put him in his big gym and the twins in the
locker room with underage girls, or his little gym and twins,
by the way, is disgusting.
I have a daughter. She turned 14 last year. I took her to a
store called Aerie for her birthday. We went shopping for an
hour in downtown Charleston, South Carolina. She was taken to
her dressing room by a biological male in a mini-skirt and a
lace bralette. It is disgusting. I have no idea if that man was
over 18 or under 18. It is absolutely disgusting that we are
redefining what women are and allowing men into women's private
spaces.
And by the way, Ms. Wiley, I am a survivor of rape. I was
raped at the age of 16. I am not going to put other women and
girls into unsafe situations where biological men with their
willie-nillies out, putting women and girls at risk. It is
absurd. It is disgusting. And I have 1 minute and 50 seconds
left of my questioning. Do you believe, Ms. Wiley, that you
need to have a Ph.D. in biology to know what a woman is? Yes or
no. Yes or no to my question?
Ms. Wiley. I first want to say you are right.
Ms. Mace. I am running out of time.
Ms. Wiley. I am so sorry, and you should never have to
suffer from sexual violence.
Ms. Mace. You did not do it. Do you need a Ph.D. in biology
to know what a woman is? I have been rape shamed by the left,
and I am not going to allow any of that stuff to happen today.
Do you believe that you need a Ph.D. to define what a woman
is--yes or no--is the question.
Ms. Wiley. I think every woman is able to define herself as
a woman.
Ms. Mace. That is not how it works. There is biology and
science. I would encourage every American to follow the
science. Are there risks to women when biological men are in a
bathroom with them, Ms. Wiley? Yes or no.
Ms. Wiley. We have every reason to want everyone to be
safe.
Ms. Mace. She cannot even answer the question.
Ms. Wiley. And we are not safe or unsafe----
Ms. Mace. Everybody, listen to the left today. They cannot
say ``yes'' or ``no'' when asking whether or not there are
risks to women when biological men are in the bathroom, cannot
even say ``yes'' or ``no'' in the hearing today. This is
lunacy. This is absurd. This gender-bending ideology of the
left is disgusting. It is absurd. It is absolute lunacy, and it
is a mental health issue in our country. If you agree with this
ideology of allowing men into women's spaces, you have a mental
health problem in this country.
I do not have to go on about the Planet Fitness in Alaska
just a few weeks ago or months ago where this guy in his boxers
is in the locker room shaving, and there is an underage girl in
a towel in the locker room with him. This stuff is disgusting.
And I am going to do everything in my power as a conservative
woman in this country and Congress to protect all of our women
and girls from this lunacy that is happening in the country
today. Thank you, Mr. Chairman, and I yield back.
Chairman Comer. The gentlelady yields back. The Chair
recognizes----
Ms. Ocasio-Cortez. Mr. Chair, I ask unanimous consent to
enter into the record a new report from the Southern Poverty
Law Center that describes how pseudoscience has become a tool
to manipulate public opinion and advance legislation and legal
actions targeting the LGBT community.
Chairman Comer. Without objection, so ordered.
The Chair now recognizes Mr. Grothman from Wisconsin.
Mr. Grothman. I would like to thank you for having this
hearing. I have a book that I am reading--hold on for 1
second--called the ``America's Culture Revolution,'' in which
they talk about this DEI obsession as being a successor to
prior efforts of progressives or communists or what have you to
divide America, and they fail to divide America by income
level, so they are intentionally trying to divide America by
race. The reason I believe that this is true is if you look at
this time in our history, where people from all around the
globe come and earn more than people of European descent.
India, China, Cuba, Philippines, Iran, all these people come
here, and within a generation, they are outliving people of
European descent.
We live at a time where single women under 30 out-earn
single men under 30. But nevertheless, we set up this
bureaucracy that says that if I am a person of color and I
inherited $10 million, I am put upon and should be given
preference over somebody who is of European descent who has
virtually nothing. We have a bureaucracy in which if somebody
comes here from Spain, they are considered an evil European and
they have to be penalized, but if somebody comes from Spain,
spends two generations in Cuba and then comes here, all of a
sudden, they are a put-upon minority. The only way that makes
any sense is if you intentionally want to divide America, and
it is just so obviously offensive and it must be confronted
wherever we go.
I also want to point out the left is very good at using
words to confuse people. Earlier today, we were accused of
conservatives being for censorship. I think when you do not
want to have first or second grade kids reading graphical
sexual things, that is not what I consider censorship.
But in any event, according to a recent study by
Bloomberg--and this is for Jonathan Berry up there--a recent
study by Bloomberg, when looking at 2020 and 2021 data for 88
S&P 100 companies, it was found that 94 percent of new hires
went to people of color or other minorities, only 12 percent
European. This, in my opinion, could be the result of companies
instituting race-based policies when it comes to hiring and
recruitment. I hear that from all sorts of people in my
district, by the way. There is no question. If you talk to
human resource professionals and they can speak off the record,
this is happening big time.
Mr. Berry, can you discuss how this data might support
findings of illegal corporate race-based policies that violate
the law?
Mr. Berry. Congressman, in the ordinary course, if you
presented in court that kind of data where you have such a
profound mismatch, presumably, between the demographics of who
actually is hired and the relevant labor market, and then you
couple that with the company's own explicit race-based policy,
that is a layup. That is not a hard case. That is textbook
racial discrimination under Title VII in many cases.
Mr. Grothman. OK. I will give you another question along
those lines. In President Biden's first year, approximately
three percent of his judicial appointees were White
heterosexual men, three percent in his first year in office.
Could you comment on that? Would that be evidence of something
going on here with the Biden Administration?
Mr. Berry. It is, potentially. The standards that govern
the President's appointments are, of course, different than
private employment, but again, you need to look at the relevant
labor market. I think it is something that would need a real
look, yes.
Mr. Grothman. Yes. I am just saying, when you have that
degree. Could any one of you talk, and maybe this is not
exactly on point, but what effect does this pound, pound, pound
on some young people that America is a racist country have upon
certain groups? I can certainly understand how it empowers
politicians, right, but in the classroom when you are again and
again told that, in essence, you are going to have a harder
time succeeding. Obviously, people coming from other countries,
India, China, Philippines, Iran, they do not have a hard
problem succeeding, but on some groups may be counterproductive
and be the reason why certain ethnic groups are not doing as
well because they keep being told that they should not.
Mr. Rokita. Congressman, good to see you again. I think you
are exactly right. It is made to divide. It is made to make
people feel inferior. There is no excuse for it anymore. We
have been through it for so long now, other than, really, what
you are talking about. It is intentional, and it is made to
make us weaker instead of more unified, more patriotic.
Mr. Grothman. OK. I will give you an anecdote and then I
will let you comment on it. I was in a classroom, Zoom, and the
teacher, a White teacher, told a mixed-race classroom that
Black children made up a higher percentage of kids arrested in
that school than their total number in the school, and then
told the kids that this was evidence of racism. What effect do
you think that would have on a little boy or girl in the class
who was African American if their teacher is telling them how
racist America is and how racist the police is? Do you think
that has any effect on their ability to succeed in society? I
mean, I can understand how when a politician says it, it makes
the politician more likely to get elected, but could you
comment on that?
Mr. Berry. Congressman, just briefly I would say that a lot
of education that focuses on critical race theory has the
perverse effect of inculcating a victim mentality in a way that
makes for all kinds of unhappy societal occurrences, exactly
the kind you are talking about.
Mr. Grothman. Thank you very much.
Chairman Comer. The Chair recognizes Ms. Stansbury from New
Mexico.
Ms. Stansbury. All right. Well, thank you very much, Mr.
Chairman. I want to just start by saying that this hearing is
making America less safe for our children and LGBTQ and people
of color across this country. There are over 14 million
Americans in this country who currently self-identify as LGBTQ.
Twenty percent of our young people who identify as queer have
taken actions to harm themselves. Hearings like this, and I am
sorry, witnesses like the ones that have been called here today
who are spewing hateful rhetoric as are my colleagues across
this dais today, are making this country unsafe for our
children. They are making this country a less just place by
perpetrating and repeating hateful speech.
Now, we know here in the United States that nearly 45
percent of Americans who identify as LGBTQ have experienced
discrimination in the workplace, and about 20 percent actually
report that they have faced physical harassment. Of the
lawsuits that have been filed by the EEOC, 35 percent of them
are based on sex, 34 percent are based on disability, and 17
percent are based on race, and of the reported cases, over 40
percent of Black Americans report that they experienced
discrimination in the workplace. This is not some woke agenda.
This, as Childish Gambino says, ``This is America.''
So, why is the GOP sitting here spending Committee
resources trying to tell us that this is just some made-up
agenda? Why are they bringing folks here to perpetrate these
lies and attacks on people that we know have faced systemic
discrimination for generations here in this country? It is
because it is being funded. It is being funded by donors, it is
being funded by organizations that are trying to advance this
agenda, and it is being funded and supported by candidates
right here in this Congress as well as other institutions.
Now, Mr. Berry, I appreciate that you have come before this
Committee, but I want to ask you just a few quick ``yes'' or
``no'' questions. Is it true that you clerked for Justice
Alito? Yes or no.
Mr. Berry. Yes.
Ms. Stansbury. And you helped to draft Chapter 18 of the
Project 2025 report, correct?
Mr. Berry. I was the lead author, yes.
Ms. Stansbury. You were the lead author. And your law firm,
in fact, filed an amicus in the Students for Fair Admission
case before the Supreme Court, correct?
Mr. Berry. Correct.
Ms. Stansbury. Thank you. That is right. So, one of our key
witnesses that has been called here today--and, again, no
disrespect--is part of a larger effort in front of the courts,
in front of Congress, in front of state legislatures across the
country to undermine and chip away at the rights of Americans,
affirmative action, voting rights, LGBTQ rights, abortion
rights, women's rights, fueling anti-trans and anti-LGBTQ
legislation across the country, and making it less safe and
less free for our children, for our families, and for all
Americans.
I represent the state of New Mexico, and I want to say that
we have taken action. We have protected reproductive rights, we
have protected gender-affirming care, and we have passed one of
the most comprehensive voting rights pieces of legislation in
the country. And I will not stand here and sit silent while I
hear this kind of hate being spewed in this institution. We
have to stop the hate. I yield back.
Chairman Comer. The Chair recognizes Mr. Burchett from
Tennessee.
Mr. Burchett. Thank you, Mr. Chairman. I ask for unanimous
consent to enter into the record the Bloomberg article titled,
``Corporate America Promised to Hire a Lot More People of
Color. It actually did.''
Chairman Comer. Without objection, so ordered.
Mr. Burchett. Thank you. Attorney General Rokita, following
George Floyd's death, there were many companies that made
promises to hire and promote more Black folks and others from
underrepresented groups. Does that sound familiar?
Mr. Rokita. Yes, Congressman.
Mr. Burchett. Well, what do you think of those promises?
Mr. Rokita. Well, you know, aspirations are one thing, and
I could just tell you that in my own hiring practices, where I
said during my testimony we have 400 people, we look for
diversity. I want diversity of thought. It makes for better
cases, it makes for better arguments, it makes for better
attorneys, it makes for better office, but I am not going to do
that by discriminating against another person. That is against
the law, it is against Title VII, and it is short-sighted and
ignorant.
Mr. Burchett. I often say put the best player in, coach,
and that is what we need. Bloomberg collected data from 2021
for 88 Standard & Poor's 100 companies. In total, those
companies increased their workforce by 323,094 people. Of the
323,094 jobs, only 20,524 or 6 percent went to White workers.
The other 94 percent went to the people of color. Mr. Berry,
Title VII of the Civil Rights Act prohibits discrimination
based on race, color, or national origin. Is that correct?
Mr. Berry. That is correct.
Mr. Burchett. Do you know what percentage of the U.S. is
White, non-Hispanic?
Mr. Berry. So, the statistic that has been discussed today
is approximately 59 percent or 60 percent.
Mr. Burchett. OK. I had 57, but I will go with that. How is
it possible that these companies only hire six percent White
folks without using discriminatory hiring practices?
Mr. Berry. My rough-and-ready statistical analysis would be
that it is extremely implausible that that would be done
without intentional discrimination.
Mr. Burchett. OK. Thank you. Ms. Wiley, in your written
statement, you said that so-called war on woke is a danger to
democracy and to all progress we have made as a society that
has benefited us all. How does corporate America using
discriminatory practices against White people benefit us all?
Ms. Wiley. Discrimination does not benefit anyone, ever.
Mr. Burchett. OK.
Ms. Wiley. And the good news here is that is why
corporations have been voluntarily taking steps to ensure that
they are not discriminating, and that is what we want them to
keep doing.
Mr. Burchett. OK. Thank you. Yes or no, you also say
attacks against woke radicals are based in a desire to keep us
back to the 1950's when Black people were segregated. Is that--
--
Ms. Wiley. Yes.
Mr. Burchett. OK. Attorney General Rokita, as someone who
fights against unequal and discriminatory workplace practices,
do you believe the critics of the DEI movement are radicals
that want to bring us back to the 50's, or are they just
upholding Title VII of the Civil Rights Act?
Mr. Rokita. Clearly, Congressman, they are upholding Title
VII, they are upholding the rule of law, and they are keeping
things fair for everyone.
Mr. Burchett. What about you, Mr. Berry?
Mr. Berry. Hundred percent. Nondiscrimination and
colorblindness are baked into the statute, and that is exactly
what we try to indicate.
Mr. Burchett. OK. And so how should the EEOC combat these
corporate DEI programs?
Mr. Berry. The EEOC should apply the blackletter law and
find that attempts to change the racial complexion by these
racial balancing schemes are unlawful, as Title VII has always
held.
Mr. Burchett. Thank you. Mr. Chairman, I yield the rest of
my time to Representative Greene.
Chairman Comer. Representative Greene?
Ms. Greene. Thank you. Listening today to my colleagues on
the other side of the aisle charging Republicans with racism,
hate, saying that we discriminate against people from the LGBTQ
community or based on race has been appalling today, and I am
sorry for the witnesses that have had to hear that. I am sorry
to the American people. That should not be happening. I do not
think anyone stood in line to pick their race or chose if they
wanted to be a man or a woman or what color hair, any kind of
physical feature before they were born. That is not something
that any of us picked.
But I will say that America has gotten a lot of things
right, and Title VII of the Civil Rights Act has done an
incredible job with the blackletter law, and it is being
violated every single day. Mr. Chairman, I yield back the
remainder of the time.
Chairman Comer. The gentlelady yields back. The Chair now
recognizes Ms. Norton Holmes from Washington, DC. Holmes
Norton. I am sorry. I always get that wrong. Ms. Norton from
D.C. I apologize.
Ms. Norton. You can use either of my names. Thank you very
much, Mr. Chairman. Ms. Wiley, I want to begin by thanking the
Leadership Conference on Civil and Human Rights for its
longtime support for statehood and home rule for the District
of Columbia. The Leadership Conference has been indispensable
in the fight to end the second-class treatment of the nearly
700,000 D.C. residents by Congress.
In 1977, I was appointed by President Jimmy Carter to be
the first woman to chair the EEOC. As Chair, I issued the first
Federal guidelines holding sexual harassment to be a violation
of equal employment laws, which were later upheld by the
Supreme Court. Despite progress in preventing employment
discrimination, the work is not done. Ms. Wiley, what major
gaps still remain to achieving equity for women, people of
color, and other underrepresented groups in the workplace?
Ms. Wiley. Oh, thank you, Congresswoman, and thank you for
all you are doing to help get representation to all of us in
Washington, DC. who deserve it. I will just say that as the
EEOC guidance--and just to be very clear, it is guidance, it is
not rulemaking, which means it is nonbinding--has been a real
effort to try to direct attention to ways in which employers
can and should look for ensuring more opportunity in employment
for everyone and in compliance with Title VII.
That is really important because I think the role of
government both in helping to create guidance as well as being
an enforcement mechanism for understanding and identifying when
there have been violations is part of what we need. At the same
time, you know, we need to make sure we are working together
collectively to say let us be willing to collect data and
understand and look at and find whether or not we have barriers
to opportunities for equal employment for any group, because,
by the way, one of the things that we have seen in Chapter 18
that has been referenced here today is a proposal that says we
should not know where and how we are doing when it comes to
being more inclusive as a society.
And if we are unwilling to look, if we are unwilling to
actually confront whether or not we have created barriers,
intentional or unintentional, what we are really saying is we
are refusing to look at how we can move forward together. That
is not going to help us fill the gaps and, I think, in addition
to making sure that we are looking at the practical realities
for every single American, and that is what we are talking
about today.
Ms. Norton. Well, Ms. Wiley, EEOC has been mandated since
1964 to enforce Federal employment discrimination laws. Since
1987, EEOC has issued policy guidance to employers, employees,
practitioners, EEOC staff, and the courts, which, in EEOC's own
words, serve as a resource for the public and the private
sector on issues related to workplace harassment. This April,
EEOC issued its most recent enforcement guidance on harassment
in the workplace. So, Ms. Wiley, is this guidance creating new
law, or is it viewed as an explanation and clarification of
existing law?
Ms. Wiley. It is an explanation, clarification. It is
guidance. It is nonbinding. It is intended to be instructive.
Ms. Norton. My Democratic colleagues and I will continue to
stand up for Title VII and all American workers. I yield back
the remaining time to the Ranking Member.
Mr. Raskin. Thank you very much, Ms. Norton. Ms. Wiley, I
seem to recall that there were a series of Federal Circuit
Court decisions finding that Title VII protects transgender
individuals against employment discrimination under the Civil
Rights Act itself. Is that right?
Ms. Wiley. That is correct, Congressman.
Mr. Raskin. OK. And that is well accepted at this point,
right?
Ms. Wiley. It is, and, in fact, it is the Eleventh Circuit,
which is a pretty conservative one, that has been protecting
transgender rights, most recently, Tyler Copeland, who is a
corrections officer, a trans man, who experienced incredible
harassment that also endangered him as an employee.
Mr. Raskin. And I am pleasantly surprised I have not heard
any of the witnesses, anyone really, attacking the idea that
there should be civil rights protection for transgender people
in the workplace. Instead, they seem to be attacking these kind
of bathroom hysteria stories. And I wonder to what extent
bathrooms have played a role generally in opposition to civil
rights laws, going all the way back to the interracial
workforce.
Ms. Wiley. Yes. I mean, one of the things that has been so
sad about the discussion we have had today is that we have not
recognized that we heard a lot of these same arguments when we
were talking about integrating based on race. You know, every
time we have advancements in society for protecting rights,
there is often a lot of fear about what it means. And that is
true of public accommodations law and saying that we should be
able to have integrated restaurants and other public spaces.
And that is something we overcame not because the American
public and a majority of White people at the time supported it,
but because it was the right thing to do under our
Constitution.
And what we have seen is that when we protect people's
rights, and bathrooms are a great example. No, everyone should
be safe in a bathroom. There are women who get raped by cis men
who are in men's clothing in bathrooms. They should be safe
from that just like transgender women should be safe from
sexual violence. Everyone should be safe. And what we know is
if you are a transgender woman forced to go into a men's
bathroom, you are much less likely to be safe.
And that is why we also have 200 organizations that have
focused on sexual violence that have said what we have seen is
more vulnerability for transgender people, that they have not
seen any increase in sexual violence based on what is happening
in bathrooms. And that is what we should be----
Chairman Comer. The time has expired, almost 2 minutes
over. The Chair now recognizes Ms. Greene for a full 5 minutes.
Ms. Greene. Thank you, Mr. Chairman.
[Chart.]
Ms. Greene. For the people watching at home today, we are
talking about Title VII of the Civil Rights Act that states,
``It shall be unlawful employment practice for an employer to
fail or refuse to hire, or to discharge any individual or
otherwise to discriminate against any individual with respect
to his compensation terms, conditions, or privileges of
employment because of such individual's race, color, religion,
sex, or national origin.'' It carries on to talk about
segregation and classification of employees or applicants, and
it carries on to an individual's, again, race, color, religion,
sex, or national origin.
Yet today, and it was reported by CBS, it says that major
U.S. companies gave 94 percent of new jobs to people of color
in 2021. White workers accounted for 20,524 jobs, just 6
percent. Mr. Rokita, would that be a violation of Title VII of
the Civil Rights Act?
Mr. Rokita. Yes, if the hiring was done simply on the basis
of race. Correct.
Ms. Greene. Mr. Berry?
Mr. Berry. Yes, one hundred percent.
Ms. Greene. Ms. Stepman?
Ms. Stepman. As the AG said, when you find intentional
statements to discriminate publicly, that is about a slam dunk
a case under Title VII as you can get.
Ms. Greene. Ms. Wiley?
Ms. Wiley. You cannot discriminate based on race, period.
[Chart.]
Ms. Greene. OK. BlackRock Founder Scholarship has a program
designated for undergraduate master's students who self-
identify as Black or African American, Hispanic, or Latino,
Native American, LGBTQ, or disabled. Is this a violation of
Title VII or a violation of the Civil Rights Act? Mr. Rokita?
Mr. Rokita. Yes. I am having trouble reading all that,
although I appreciate what you are doing. Self-identifying and
then----
Ms. Greene. Based on race----
Mr. Rokita. Yes.
Ms. Greene [continuing]. Identifying sex. Mr. Berry?
Mr. Berry. Under Section 1981, that looks like a violation.
Ms. Greene. Ms. Stepman?
Ms. Stepman. Yes.
Ms. Greene. Ms. Wiley?
Ms. Wiley. We have had no ruling that I am aware of that
says that is a violation.
Ms. Greene. This is talking about race, gender, LGBTQ.
Definitely it leaves off White. ``White'' is not on this list,
so that would be based on race. That seems to be a violation to
me.
Ms. Wiley. I think what we are talking about is what the
status of current case law is----
Ms. Greene. Yes, I think definitely leaves off White
people. I reclaim my time.
[Chart.]
Ms. Greene. ``Smithfield Foods has an aggressive set of
goals in its hiring''--I know it is hard to see for the
witnesses--``by 2030, increase the racial diversity of our
leadership team by promoting and hiring qualified Black,
Hispanic, and other underrepresented individuals to positions
of supervisor and above in support of our current goal of 30
percent representation.'' It goes on to talk about gender
diversity in their leadership team for female leaders to
positions of supervisor, talking about another current
percentage goal. Mr. Rokita, would this be a violation?
Mr. Rokita. Yes, because that is a quota.
Ms. Greene. Mr. Berry?
Mr. Berry. Absolutely.
Ms. Greene. Ms. Stepman?
Ms. Stepman. Quotas are a violation of----
Ms. Greene. Ms. Wiley?
Ms. Wiley. Goals are not quotas.
Ms. Greene. They have quotas. They have percentage quotas,
Ms. Wiley.
Ms. Wiley. What I have heard is goals.
Ms. Greene. I guess you have a hard time hearing the truth.
[Chart.]
Ms. Greene. Kellogg's. According to its filings with
Securities and Exchange Commission, Kellogg's operates in a
highly competitive commercial environment and faces significant
challenges in finding capable employees, is what they claim.
They have a program called Better Days Promise, specifies that
by the end of 2025, it will achieve 25 percent racially
underrepresented talent at the management level in the United
States. It is talking about a paid postgraduate fellow program
``for Black chefs to work with our research and development
team to help them better understand food's roles in Black
communities worldwide.'' Mr. Rokita, talking about race and
having the woke percentage plans, is this a violation with
Kellogg's?
Mr. Rokita. Yes, assuming the hires are based solely on
race, yes.
Ms. Greene. Yes, they specifically say Black chefs here.
Mr. Berry?
Mr. Berry. Goals are usually quotas under the law.
Ms. Greene. OK. Ms. Stepman?
Ms. Stepman. Yes, it is a violation.
Ms. Greene. Ms. Wiley?
Ms. Wiley. We need to know a lot more facts before we know
if that is the violation.
Ms. Greene. They clearly state it right there, ``a paid
postgraduate fellow program for Black chefs to work with our
research and development team to help them better understand
food's role for Black communities worldwide.'' Unlawfully, only
Black or African-American chefs are allowed, even if
individuals with other immutable characteristics who otherwise
qualify, so they are leaving off the trans people. They are
leaving off LGBTQ, Asian, Indian. Mr. Chairman, I have run out
of time. Thank you very much.
Chairman Comer. Thank you. The Chair now recognizes Ms.
Pressley from Massachusetts.
Ms. Pressley. Thank you to our witnesses for being here
today. You know, although the subject matter of today's hearing
is to be expected, certainly makes it no less offensive or
frightening. My Republican colleagues very often like to quote
Dr. King, I do not know, maybe for some civil rights
credibility or to pervert his words to suit your extremist
needs, while working actively to undermine his legislative
legacy. Republican attacks on the EEOC are part of their
broader efforts to weaken civil rights protections. One of
their goals is plainly laid out in Project 2025, a thousand-
page bucket list of extremist policies. Mr. Berry, Chapter 18
of the Project 2025 manifesto is about the Department of Labor,
and you are the author of that chapter, correct?
Mr. Berry. Lead author, yes. There are others, too.
Ms. Pressley. Yes, you are. I believe the American public
should know exactly how you and the Republican majority that
invited you to testify today want to sabotage the EEOC, rewrite
the Civil Rights Act of 1964, and push all of us back to an era
of Jim Crow racism. I am shocked that my colleague across the
aisle was in disbelief at our characterizations and assertions
of racism and discrimination when even former House Speaker
Kevin McCarthy said the Republican side of the aisle looked
like the most restrictive country club in America. We all know
that Make America Great Again is about making America White
only again.
The first page of Chapter 18 of Project 2025 complains
about how the Biden Administration has been fighting for racial
equity. On the next page, it calls for eliminating data
collection on race and ethnicity in employment. On the page
after that, it calls for rescinding an executive order signed
in 1965 that prohibits discrimination in hiring by contractors.
Mr. Berry, do these terrible ideas sound familiar?
Mr. Berry. They are great ideas.
Ms. Pressley. These terrible ideas sound familiar. Of
course they do. You came up with them. Mr. Berry, I find it
shameful to advance a vision attacking the very policies and
agencies that have helped Black Americans secure jobs, earn a
living, and provide for our families. This Project 2025 plan is
policy violence, plain and simple. Its authors have placed such
a large target on the EEOC because of the incredible work the
EEOC is doing today. Last year alone, the Agency filed more
than 27,000 charges of race-based discrimination. These workers
and their families have a pathway to justice, accountability,
and healing because of the policies and regulations that
Project 2025 is trying to get rid of. Ms. Wiley, how would
workers be harmed by Project 2025's commitment to undermining
crucial protections that are enforced by EEOC and other Federal
agencies?
Ms. Wiley. Well, essentially, it guts the ability to both
be able to have the rights and have enforcement and protection
of the rights that we already have, and we have been seeing
improvements and advancements when we have been enforcing them.
And I am also deeply concerned with any suggestion that we
should not be collecting data, or that labor rights, the rights
to organize, which has been so important for workers across
race, including White men, to ensure that they are getting fair
wages and safe working conditions. All of these are actually in
that chapter, and they threaten our workplaces for people who
are White, for people of color, for people of all backgrounds
in this country, and I think that is why we all need to be
concerned because it really is about all of us.
Ms. Pressley. That is right. They threaten our workplaces
for every person who calls this country home. EEOC offers
essential protections that create workplaces where all of us
can thrive. But Project 2025 aspires to be the realization of a
decades-long crusade by Republicans to strip away this key
pillar of the Civil Rights Act. As a founding member of the
Stop Project 2025 Task Force, I look forward to showing and
telling the American people exactly who you are, Mr. Berry,
along with your extremist friends. I urge my colleagues to join
me in building the inclusive world we know to be possible, one
in which everyone--is there something funny?
Mr. Berry. No.
Ms. Pressley. I did not think so. Nothing funny about this.
And in honor of my departed mother and for my 15-year-old
daughter, I will do everything possible to stop you from
building the world that you are hell bent on doing. I urge my
colleagues to join me in building the inclusive world we know
to be possible, one in which everyone can show up to work free
from discrimination. Thank you. I yield back.
Chairman Comer. The Chair recognizes Mr. Gosar from
Arizona.
Mr. Gosar. The U.S. Equal Opportunity Employment Commission
has decided on April 29, 2024, that its new sexual harassment
guidance, that most businesses with 15 or more employees must
allow men in women's bathrooms or be in violation of Title VII
of the Civil Rights Act. Attorney General Rokita, sir, good to
see you again.
Mr. Rokita. You, too.
Mr. Gosar. What punishment would be meted out to a business
that does not allow men into women's bathrooms?
Mr. Rokita. Under that guidance?
Mr. Gosar. Yes.
Mr. Rokita. Well--it could range. First of all, there is
the embarrassment factor of going through the process. There is
the financial cost of going through the process if the EEOC was
to bring charges, and, you know, depending on the
circumstances, there could be fines.
Mr. Gosar. Now, would the same punishment apply to a
business if a business refused to force its employees to use
pronouns they are not comfortable with?
Mr. Rokita. Well, what we have said in the opinion in
Indiana is that there is no Federal or state law that has this
requirement. So, what you question goes to is how far these
unelected bureaucrats are going to go to try to use the law,
and the wedge they are putting into it, and the liberties they
are taking with it to inflict harm and confusion on the
business community.
Mr. Gosar. Will single-sex spaces and businesses with
employees of 15 or more exist if the sexual harassment guidance
stays in place? Will they exist?
Mr. Rokita. I am having trouble following that one. So, if
you could----
Mr. Gosar. It will be very hard, would it not, to be in
compliance?
Mr. Rokita. Yes. Right.
Mr. Gosar. OK. Mr. Berry, this EEO-1 data, can you give me
a little bit more information on how this data could be
utilized or address our concerns it is in violation of the law?
Mr. Berry. So, the EEO-1 collection requires employers to
classify their employees on the basis of race, put people in
these identity politics categories. The issue here is that
unless there is particularized evidence of suspicion of
discrimination, the EEO-1 aggravates, raises unnecessarily the
salience of race, and this is in direct contravention to what
the first Justice Harlan said. In Plessy v. Ferguson--his
dissent vindicated in Brown v. Board of Education--Justice
Harlan said we should not permit any public authority to know
the race of any American citizen, that colorblindness is
exactly what our Constitution requires, and that is indeed the
value we ought to be upholding.
Mr. Gosar. Is that not the whole premise of the Lady
Justice? She is blindfolded. She holds a set of scales and a
sword. Is that not the same kind of principle?
Mr. Berry. Exactly. No respecter of persons.
Mr. Gosar. Well, you know, pretty interesting. Now, the
Supreme Court ruled in Bostock v. Clayton County that a male
employee cannot be fired just because he thinks he is a woman.
That is an egregious decision on his face. However, you mention
in your testimony, Ms. Stepman, that the Court did not, and
this is the words of the Court ``purport to address bathrooms,
locker rooms, or anything else of that kind.'' Is the EEOC
directly violating the Supreme Court?
Ms. Stepman. It is going much further than Bostock does,
and it is violating the plain text meaning of Title VII.
Mr. Gosar. And so really it is a promotion by a bureaucracy
out of control?
Ms. Stepman. Exactly. So, this did not even go through the
APA rulemaking process.
Mr. Gosar. So, when Kim Gardner refused to grant marriage
licenses to gay couples, she was jailed. Earlier this year, she
was just ordered to pay a gay couple that she would not pretend
to marry for $260,000. Why am I not holding my breath that the
EEOC officials will be held in the same account as Kim Gardner?
Ms. Stepman. I am sorry. I am partially deaf, so it is
difficult for me to understand. Sorry. I could not----
Mr. Gosar. I will try it one more time. When Kim Gardner
refused to grant marriage licenses to a gay couple, she was
jailed. Earlier this year, she was just ordered to pay a gay
couple she would not pretend to marry for $260,000. Why am I
not holding my breath that the EEOC officials will be held to
the same account as Ms. Gardner?
Ms. Stepman. Yes, I am not holding my breath either, but
they are equally beyond their mandate. They are operating as
unelected officials. Remember, they do not have to stand before
the American people. Again, this body, if it wanted to, could
add gender identity to Title VII. It declined to do so, and now
bureaucrats who are unelected are taking that power for
themselves.
Mr. Gosar. I thank you very much. Mr. Chairman, I yield
back.
Chairman Comer. The gentleman yields back. The Chair
recognizes Mr. Raskin from Maryland.
Mr. Raskin. Thank you, Mr. Chairman. Back to you, Ms.
Wiley. Title VII has been a great American success story and
the model for civil rights law and jurisprudence all over the
world. And the vast majority of Americans support Title VII,
which really embodies the promise of civil rights and people
being treated as individuals so that they can actually succeed
upon their own merits. And yet Title VII has been opposed from
the very beginning, has it not, and it has been resisted at
every turn. I think that the ideological forebears of Mr.
Rokita and Mr. Berry and Ms. Stepman, like Robert Bork, were
arguing against the Civil Rights Act of 1964, saying that it
was a violation of freedom of association. And I remember, you
know, Anita Bryant and other anti-feminist activists arguing
that women were not looking for equality and equal rights.
Women were looking for a separate place and their special place
under religious and cultural heritage. So, I just wonder if you
would say a word about how this current attack on the Civil
Rights Act and Title VII fits in with that history.
Ms. Wiley. Yes, Congressman, there is an unbroken
ideological line. In fact, this Committee hearing, I think, was
noticed the day after Juneteenth, when we recognized the last
state, in Galveston, Texas, where Black people were informed
they were free after the Civil War. And the Civil War
amendments themselves, the Fourteenth Amendment, which was the
underpinning of Title VII, explicitly and after the Civil War,
rejected colorblindness, in fact, in the forming of the
amendment because it was understood that after slavery, there
had to be the ability to actually create more opportunities for
people who are Black. And in fact, the laws passed, like the
Freedmen's Bureau, were specific about finding ways to focus on
creating more opportunity.
When we got to the Civil Rights Act of 1964, again, the
longest filibuster in the history of the country, 60 full days
before, fortunately, 73 senators, bipartisan, passed the Civil
Rights Act, which includes Title VII, as well as Title VI, as
well as Title II. But we never saw 1 day end in the argument
that said it was somehow going to be unfair to White people if
we were paying attention to racial discrimination. And frankly,
it has just never been true that we have not paid attention to
racial discrimination for all people. And anybody who is White
can file an EEO complaint charge right now if they are being
discriminated against based on their race, and the EEOC will
investigate it.
So, the whole fact that we are talking about Title VII as
if there is a refusal to pay attention to discrimination, or
the whole fact that we are suggesting that if Black people or
Latinos or Native Americans are getting jobs, they must not be
qualified for them, that in and of itself speaks to the same
arguments we heard in opposition, whether it was post-Civil War
or post-1964 or now, 2024.
Mr. Raskin. And Mr. Berry was engaged in a colloquy with
Representative Gosar about colorblindness, which they anchored
in the principle of Lady Justice being blindfolded. And it made
me wonder about to what extent you think there will be
objective, neutral, dispassionate interpretation of the Civil
Rights Act of 1964, of the Voting Rights Act of 1965 by Justice
Alito, Mr. Berry's former boss, whose home displayed the pro-
January 6th insurrectionist upside-down American flag and who
displayed other flags in opposition to the American flag,
essentially. Do you have a lot of confidence that Lady Justice
is blindfolded when it comes to Justice Alito?
Ms. Wiley. I do not.
Mr. Raskin. And finally, just back on the transgender
point, there seemed to be some suggestion from our colleagues
that transgender individuals pose the threat of rape to
American women. Are most American women who are raped, raped by
heterosexual cis men or by heterosexual transgender men?
Ms. Wiley. Well, I will say that what I have seen, which is
the letter in support of transgender people being able to
utilize the bathroom that matches their identity from sexual
violence providers, rape crisis counselors is it is transgender
people who are often disproportionately victims of sexual
violence, and that they have not seen any increase in sexual
violence because of protecting the rights of transgender
people.
Mr. Raskin. And I appreciate that. I am out of time, but I
will say, without fear of being contradicted, that the
overwhelming majority, if not all, of the rapes in America are
conducted by men who are heterosexual cis men. And this other
thing is a complete paranoid conspiracy theory, mythology meant
to undermine the progress of civil rights law. I yield back.
Chairman Comer. The Chair recognizes Mr. Khanna from
California.
Mr. Khanna. Thank you, Mr. Chair. Mr. Berry, you are the
co-author----
Chairman Comer. OK. Go ahead, Mr. Khanna. I am sorry, Mr.
Khanna.
Mr. Khanna. Mr. Berry, you are the co-author of Project
2025, the labor section. Am I correct?
Mr. Berry. The lead author on that section, correct.
Mr. Khanna. I want to get some facts out. There has been so
much conversation about working families and what we are going
to do for the working class. I just want to get some facts out.
In that report, you call for the repeal of Davis-Bacon and say
that Congress should enact a law that makes it illegal to pay
prevailing wage for union employees. Is that correct?
Mr. Berry. I appreciate the chance to correct the record.
That is actually not correct. The chapter expresses no view.
There is an alternative view not attributable----
Mr. Khanna. So, you do not think there should be a repeal
of Davis-Bacon?
Mr. Berry. The chapter does not take a position----
Mr. Khanna. Do you have a view of whether there should be a
repeal?
Mr. Berry. Honestly, I think it is complicated, and I do
not really know.
Mr. Khanna. OK. In the chapter it says that you should end
project labor agreements and project labor requirements. Is
that correct?
Mr. Berry. Same issue, Congressman.
Mr. Khanna. You do not agree with that, or you say that the
report does not call for that?
Mr. Berry. The chapter does not speak to the issue
directly. There is a dissent that does. I do not take a
position.
Mr. Khanna. What about the rescinding of regulations
prohibiting the discrimination on the basis of sexual
orientation, gender identity, transgender status, and sex
characteristics? Do you believe that we should be repealing any
regulations to prevent discrimination on that?
Mr. Berry. I am blanking on exactly which regs we are
talking about, but yes, I support what is in there on those
issues. Yes.
Mr. Khanna. So, just to be clear, you would repeal any
regulations that prohibit discrimination on the basis of sexual
orientation, gender identity, and sex characteristics?
Mr. Berry. The position is that Bostock should be read
properly narrowly and not extended to the biological areas like
bathrooms that we have been discussing today.
Mr. Khanna. But that is not what the report says. The
report says, basically, you do not want any regulations that
prevent discrimination against gay people and people based on
sexual orientation or gender identity. I mean, that is what you
call for in the report.
Mr. Berry. No, the chapter accepts Bostock according to its
terms but resist its extension to areas it does not apply.
Mr. Khanna. I mean, I am just quoting directly. It says
``rescind regulations prohibiting discrimination on the basis
of sexual orientation, gender identity, and sex
characteristics.'' I mean, do you stand by that statement?
Mr. Berry. I stand by what it says in the chapter, yes.
Mr. Khanna. So, just to be clear, I mean, that basically
means you do not believe that we need to have laws to protect
people from discrimination. If someone is gay or someone is
transgender, you think that there should not be laws to protect
them. Let me go on to one other issue in this report. You say
that we need to be scheduling civil employees as F scheduled
employees, which means that the President would have the
authority to fire about 50,000 civilian employees if she or he
wants to. Is that correct?
Mr. Berry. Someone else had responsibility. I do support
that as a policy matter that, ultimately, the President and
people accountable to the President should be the ones setting
our executive branch policy.
Mr. Khanna. So, I mean, under this scenario, for example,
if President Trump returns to office, he would be able to fire
about 50,000 people who are currently civil servants and bring
in people who are more consistent with his ideology, and you
are recommending this as a policy, correct?
Mr. Berry. Having more political accountability is a very
good thing.
Mr. Khanna. I just want to know. I am not trying to argue.
I am saying for a fact. So, you support the idea that Donald
Trump could come in, hypothetically, if he wins the election,
fire 50,000 civil employees and replace them with people who
support his ideology?
Mr. Berry. I support the Schedule F idea, yes.
Mr. Khanna. And that means that if he wants to take civil
servants from the Justice Department, State Department, and
from the Department of Homeland Security, and he says they are
not sufficiently for MAGA, I want to fire these folks, 50,000
of them, and replace them with people more aligned the MAGA, he
would have the ability to do that. Currently, there are only
4,000 political appointees. You want him to have the authority
if he wins the election to have 50,000 people replaced,
correct?
Mr. Berry. It is a lesser civil service regime. It is not
the same as political appointees, but policy responsiveness is
appropriate when it comes to any employee who touches on public
policy, which----
Mr. Khanna. But I am----
Mr. Berry [continuing]. Would.
Mr. Khanna. I am directionally correct. I mean, I think the
American people should decide whether they want that or not.
You are basically saying he should have the ability to fire up
to 50,000 people if they are not doing what his ideology is and
replace them with people more consistent with his ideology and
reclassify these folks as Schedule F, correct?
Mr. Berry. Hundred percent.
Mr. Khanna. Thank you.
Chairman Comer. The gentleman yields back. I would like to
go to Mr. Mfume, but they tell me I have to call on Mr. Goldman
next, so the Chair recognizes Mr. Goldman for 5 minutes.
Mr. Goldman. Thank you, Mr. Chairman. It has been
interesting listening to my colleagues on the other side of the
aisle use phrases such as ``follow the science'' and
blackletter law. Since science overwhelmingly has established
that climate change is real and caused by human beings,
especially oil and gas companies, I am sure they will agree
that if we are to follow the science, then we should stop
denying climate change. Mr. Berry, do you agree with the
Supreme Court's rationale and analysis in the Bruen decision?
Mr. Berry. So, I am not deeply familiar with it, but
directionally what I understand, it seems to construe the
Second Amendment as a robust individual right.
Mr. Goldman. And would you consider it to be a strict
constructionist interpretation of the Second Amendment?
Mr. Berry. My impression is that it attempts to be a
faithful exploration of the original public meaning of the
Second Amendment.
Mr. Goldman. The original public meaning, OK. Just so
everyone is aware, the Bruen decision interpreted the Second
Amendment to only allow for gun regulation that could have
existed in 1789 when the Second Amendment was ratified. And of
course there were no machine guns, there were no bump stocks,
you know, the list goes on as to many, many technological
advances that did not exist then, but it is the original
meaning. Ms. Wiley, if we are going to talk about the original
meaning of the actual blackletter law, was there any evidence
in 1964 of pervasive discrimination against White people?
Ms. Wiley. No.
Mr. Goldman. So, it is fair to say this Title VII was, of
course, not written to right the wrongs of discrimination
against White people in 1964?
Ms. Wiley. That is correct.
Mr. Goldman. So, if one were to use the original meaning at
the time that something was ratified or enacted, then
discrimination against Whites would not be included as a
cognizable claim under Title VII. Is that right?
Ms. Wiley. No, because it is true that Title VII prevents
all forms of racial discrimination. The reality of why the law
was drafted and passed in the first place was because there
were no protections that recognized that Black people, that
Native Americans, that Pacific Islanders, that other people of
color who were not being protected by government from
discrimination deserve to be protected by government from
discrimination, because what was happening for a hundred years
after the winning of a Civil War to create true, equal
opportunity is that it was formally and constantly denying
people because they were not White.
Mr. Goldman. I agree with you.
Ms. Wiley. So, it did not make it OK to discriminate
against White people. It just made it clear you cannot allow it
against everyone else.
Mr. Goldman. I am making somewhat of a rhetorical point
because I do agree with you that we should not have
discrimination based on race. I just want to point out the
hypocrisy and the convenience that folks on the other side of
the aisle like to use in a cynical way, blackletter law and the
original meaning of things when it is convenient, but not when
it is not convenient.
The fact of the matter is that 82 percent of business
leaders consider diversity initiatives to be essential to their
business strategy. Two percent of business leaders say that
these initiatives are not important. Diversity initiatives are
credited with improving business performance, enhancing talent
acquisition and retention, enhancing competitiveness, and
fostering innovation. And 45 percent of business leaders said
that the main reason they have diversity initiatives is to
improve business performance. This is motivated by businesses,
and it is demanded by consumers, just like ESD. And so, if
Republicans profess to be the party of deregulation and free
markets, why will you not just let the market decide whether
diversity and inclusion or ESD is something that the market
wants? Why do you now want regulation?
The fact of the matter is you want regulation because you
want to go back to the White replacement theory and a time
when, in 1964, we needed to pass a law to protect
discrimination against people of color and underserved and
marginalized groups, not against White people. And it is a
shame that this entire Project 2025 includes attacks on
immigrants and the expulsion of immigrants and the exclusion of
immigrants who make up so much of our economy and are essential
to so many aspects, both from agricultural workers to highly
skilled workers with H-1B visas. And so, I wish that we would
have some consistency from the other side of the aisle in how
we view diversity, as we approach with Project 2025, with
immigration and with our employment laws, and I yield back.
Chairman Comer. The Chair now recognizes Mr. Mfume from
Maryland.
Mr. Mfume. Thank you very much, Mr. Chairman. I want to
thank the witnesses that have been through a rather long day
here with many of us on this Committee and certainly many of
you. I am, Mr. Chairman, a bit perplexed. I have listened early
on to the opening statements, and I am trying to find a
connection back to what the original sin was, how we got to
where we are, what caused it, what brought it about, and I have
heard talk of bathroom sharing and the showing of genitals and
a disputed definition of Title VII. Title VII is what it is,
what it is, what it is, and as we heard earlier, its birth came
out of the Civil Rights Act. That is how it was conceived.
So, I think it is important for the Committee to understand
that too often we hold fast to the conclusions of others. We
tend to subject all facts to a prefabricated set of
interpretations. We enjoy the comfort of opinion without the
discomfort of thought, but we stay away in this hearing at
least from the original sin, and I do not know how that is
possible considering how we got to where we are. And for a race
of people who have suffered, endured, and survived a hundred
years of Jim Crow, 200 years of slavery, oppression,
deprivation, degradation, denial, and disprivilege, that is the
original sin. And in an era of smaller vision, rapid apathy,
and celebrated mediocrity, we do need people who will stand up
and speak out for that and fight back against that which is
wrong.
It is just amazing how we have distorted how we got to
where we are because we did not just fall out of the heavens
this way. You know, the American birth, the American
conception, was a conception that brought with it a number of
things: the slaughter of Native Americans, the enslavement of
what was then the Negro, and the annexation of the Hispanic. We
have got a lot to bear in terms of the original sin. So, as we
seek to correct it today, it is funny that the wolf has put on
sheep's clothing and has come to tell us that we are all wrong.
One thing is for sure. We are not going back to the way it
was, not ever, ever again, and I want to commend Ms. Wiley, the
Leadership Conference on Civil Rights. You know, in my decade
as president of the National NAACP, I had an opportunity to
work with many of your predecessors. I have seen this fight go
on for a long, long time, and I recognize that you have had the
least amount of time today because you are one person versus
three others who have had an opportunity to be called on a
number of times. So, Mr. Chairman, I am going to relinquish my
remaining time to Ms. Wiley. She may have some closing
comments, questions, or suggestions for this Committee. Thank
you very much.
Ms. Wiley. Thank you, Congressman Mfume, for all your years
of leadership and commitment to civil rights. I want to bring
something into the room that is a direct example of why this is
an ideological attack because we are seeing, as a result of a
Supreme Court opinion on admissions in higher education, a
lawsuit in San Francisco against a city program that is trying
to ensure that Black babies and Pacific Islander babies live
beyond the first year of life because the infant mortality rate
for them are 11 and 13 percent higher than they are for White
babies, and we do not want any baby to die before the age of 1.
We want everyone of all races to be able to make it to maturity
and make their own decisions and live their own lives.
And yet we are seeing a legal attack based on the Civil War
amendment, the Fourteenth Amendment, because of a higher
education admissions case that is now weaponized against trying
to ensure survival of babies that is not about higher education
admissions, and yet that is how we are seeing the opinion being
weaponized. In the same way we have heard complaints about the
EEOC taking a logical extension of a Supreme Court case, we are
not hearing that on the other side about how a diversity case
on higher education is being weaponized against rights.
Mr. Mfume. Thank you and thank you for your work in this
area over many, many years. Mr. Chairman, I yield back.
Chairman Comer. The gentleman yields back. Without
objection, Representative Balint from Vermont is waived on to
the Committee for the purpose of questioning the witnesses at
today's hearing.
Without objection, so ordered.
The Chair now recognizes Representative Balint from
Vermont.
Ms. Balint. Thank you, Mr. Chair. I would like to bring us
back to the reasons that the protections enshrined in Title VII
of the Civil Rights Act of 1964 were needed then and are
actually still very much needed today. My community, the LGBTQ
community, is constantly under attack in this Congress.
According to the Williams Institute, nearly half of LGBTQ+
workers have experienced unfair treatment at work, and LGBTQ
employees of color are more likely to report being denied jobs
and experiencing verbal harassment.
There are endless stories that I could convey in this
hearing. I will just cite a few. I am thinking of one American
who faced horrific workplace discrimination. She described how
her co-worker said that ``transgender people were mentally ill,
and the cure was a bullet between the eyes.'' Another
American--and I stress that these are Americans who are just
trying to live their lives and work in peace--another American
faced workplace violence and discrimination when one of her co-
workers became physically aggressive with her while calling her
transphobic slurs, again, while just trying to do her job and
live her life. There are so many gut-wrenching stories, and
they are an indication of the damage that fearful, hateful, and
dehumanizing rhetoric has had on Americans who just want to
live their lives. Everyone deserves to be treated with dignity
and respect in the workplace, and these Title VII protections
help us ensure that they are protected. This is about basic
humanity. I cannot tell you how many times I have to say this
in this Congress. It is about basic humanity, people being able
to live their lives and work in peace.
In the Supreme Court's Bostock decision, our Nation's
highest Court affirmed that Title VII protects against
discrimination based on sexual orientation and gender identity.
But we need explicit protections because so many will still
seek to demonize and dehumanize us, and I say ``us'' as I am
part of that community. We have to pass the Equality Act to
explicitly protect LGBTQ people against discrimination, whether
it is in employment, housing, public accommodations, federally
funded programs, education, jury selection, credit, I can go on
and on and on, people just trying to live their lives as
Americans. To the members of my community across this country,
I want you to know that you are entitled to dignity and respect
at work. You are entitled to dignity and respect everywhere
because you are an American and you are entitled to those
things.
Although there are many people in Congress who push
discriminatory bills and hateful amendments and fearmongering
rhetoric every single day that I am in the Capitol, there are
also good people in Congress who are standing up to this
hateful rhetoric, and I am one of them. I am one of these
people who, every single day, I have to come here and do battle
with this. I will not allow our voices to be silenced. I will
not allow these attacks to go on unchallenged and to have our
rights as Americans taken away. We are going to continue to
fight alongside all of our strong allies in Congress because we
have many. And I want to specifically say to trans people
across this country, I see you. I am here to support you. I
want you to live freely and authentically without fear of
violence or discrimination.
Ms. Wiley, in the minute that I have left, what would it
mean for trans people if Republicans' interpretation of Title
VII were to prevail, and that gender identity was no longer
protected by Title VII?
Ms. Wiley. It would mean not only the loss of dignity, not
only the loss of jobs, not only the loss of the ability to
really be able to ensure that you can take care of yourself and
your family fairly and with equal opportunity to work, it would
increase danger and physical safety. We saw that in the
Eleventh Circuit case with Tyler Copeland, a transgender man,
endangered because his own supervisees were harassing and
abusing him because he was transgender in front of inmates.
That is actually an unsafe condition, and the same in terms of
sexual violence, murder. You know, we are essentially giving
permission to hate bias and violence, and we should not
tolerate it, and we stand with you.
Ms. Balint. Thank you, Ms. Wiley. In closing--I know I am
over, Mr. Chair--I just want to say there are a few, I believe,
true believers whose spew these hateful indignities toward
people in my community, and there are a lot of enablers who go
along to get along, and what they are doing is demonizing and
dehumanizing their fellow Americans. I yield back.
Chairman Comer. The gentlelady's time expired. In closing,
I want to thank our witnesses for being here----
Mr. Mfume. Mr. Chairman? Mr. Chairman, I am sorry.
Chairman Comer. Yes. Yes.
Mr. Mfume. I have a unanimous----
Chairman Comer. Absolutely, of course.
Mr. Mfume [continuing]. Consent request for three articles
to be entered into today's record. The first is from the New
York Times, entitled, ``No Vacancies for Blacks: How Donald
Trump Got His Start and Was First Accused of Bias.'' The second
article is from NBC News, entitled, ``Not Wanted: Black
Applicants Rejected for Trump Housing Finally Speak Out.'' And
the third is an article from Politico, entitled, ``Trump Moves
to Gut Obama Housing Discrimination Rules.''
Chairman Comer. Without objection, so ordered.
Are there any other UCs that anyone wants to submit?
[No response.]
Seeing none and in closing, I want to thank our witnesses
for being here today. Obviously, this is an enormous issue.
This is an issue that is going to have to be addressed by
Congress, very differing opinions on this issue. We have heard
from many in the private sector, many Americans that feel
discriminated against by the DEI policies. Thankfully, the
Civil Rights Act protects against discrimination, but many of
us believe this DEI has taken discrimination to another level,
and we continue to want to work with you all to try to come up
with a resolution to the problem that is affecting a majority
of Americans.
So, with that and without objection, all members have 5
legislative days within which to submit materials and
additional written questions for the witnesses, which will be
forwarded to the witnesses.
If there is no further business, without objection, the
Committee stands adjourned.
[Whereupon, at 2:38 p.m., the Committee was adjourned.]