[Congressional Record (Bound Edition), Volume 160 (2014), Part 12]
[Senate]
[Pages 16549-16551]
[From the U.S. Government Publishing Office, www.gpo.gov]




    NOMINATION OF P. DAVID LOPEZ TO BE GENERAL COUNSEL OF THE EQUAL 
                   EMPLOYMENT OPPORTUNITY COMMISSION

  The PRESIDING OFFICER. The clerk will report the Lopez nomination.
  The legislative clerk read the nomination of P. David Lopez, of 
Arizona, to be General Counsel of the Equal Employment Opportunity 
Commission.
  The PRESIDING OFFICER. Under the previous order, there will be 2 
minutes of debate prior to a vote on the nomination.
  Mr. ALEXANDER. Mr. President, today we are voting on the nomination 
of P. David Lopez to serve as general counsel of the Equal Employment 
Opportunity Commission. The EEOC is an important agency with a critical 
task.
  In August 1963, I stood in the crowd on the National Mall and 
listened to Dr. Martin Luther King's ``I Have a Dream'' speech when he 
called for our Nation to ``make real the promises of democracy.''
  The next year, the historic Civil Rights Act of 1964 was passed, 
establishing the EEOC as an important, independent agency to put an end 
to workplace discrimination, particularly in hiring, firing, and 
promoting.
  Today, employees are protected by law if they are discriminated 
against because of race, color, religion, sex, pregnancy, national 
origin, age, disability, or genetic information.
  The EEOC is charged with investigating complaints of discrimination 
to determine whether or not they have merit, and then attempting to 
resolve them informally, through conciliation and mediation.
  The general counsel at the EEOC has a great deal of responsibility--
he or she is in charge of conducting litigation at this important 
agency.
  Mr. Lopez is being re-nominated for the general counsel position. I 
do not believe he has fulfilled his charge over the last four and one-
half years and will not support extending his time at the agency. I 
would strongly urge my colleagues to vote against this nomination as 
well.
  It is critical that the general counsel make wise decisions about 
which cases to litigate and how. Unfortunately, Mr. Lopez, often has 
failed to meet this standard.
  I have three primary concerns about the EEOC.
  First, EEOC has placed too much emphasis on litigating high profile 
lawsuits, some of which have been rebuked by the courts, rather than 
resolving its backlog of discrimination charges filed by individuals.
  Second, EEOC has not been fully transparent in how it issues guidance 
to the public and in the information it shares with the public about 
its activities.
  And third, EEOC is suing employers for following the President's very 
own health care law.
  On the first concern, a judicious general counsel should view costly 
and time-consuming litigation as a last resort. However, this EEOC has 
placed too great an emphasis on litigating high-profile cases, some of 
which have been rebuked by the courts, rather than resolving its 
backlog of discrimination charges filed by individuals.
  In fiscal year 2014, more than 88,000 charges of discrimination were 
filed with the EEOC and at the end of November 2014, EEOC reported it 
had 75,935 unresolved discrimination charges pending.
  A backlog of charges pending is nothing new for EEOC, but given this 
backlog, I am disappointed that this EEOC has placed such a strong 
emphasis on actions and lawsuits--predicated upon not a single 
complaint--that do not address actual charges of discrimination brought 
to the Agency by employees.
  Under this administration, the EEOC has focused too heavily on 
headline-making lawsuits at the expense of fair and swift resolution of 
claims for those alleging workplace discrimination.
  The desire to win big lawsuits has backfired. Numerous Federal courts 
have criticized EEOC's litigation practices, failure to attempt to 
resolve cases and avoid court, misuse of authority, and reliance on 
faulty expert analysis, among other complaints.
  Example No. 1--EEOC's case against Kaplan Higher Education 
Corporation received such a sharp rejection by a unanimous three-judge 
panel on the Sixth Circuit Court of Appeals in 2014 that The Wall 
Street Journal named it the ``Opinion of the Year.''
  EEOC sued Kaplan for alleged race discrimination due to the use of 
credit background checks. The court wrote, ``EEOC brought this case on 
the basis

[[Page 16550]]

of a homemade methodology, crafted by a witness with no particular 
expertise to craft it, administered by persons with no particular 
expertise to administer it, tested by no one, and accepted only by the 
witness himself.'' The court also criticized EEOC for bringing a case 
against Kaplan for ``using the same type of background check that the 
EEOC itself uses.''
  Example No. 2--Another Federal court reprimanded EEOC for being 
``negligent in its discovery obligations, dilatory in cooperating with 
defense counsel, and somewhat cavalier in its responsibility to the 
United States District Court.''
  Example No. 3--EEOC caused a small employer to spend $100,000 
attempting to comply with requests for information that, according to a 
Federal judge, ``EEOC had no authority to obtain.''
  Since 2011, EEOC has been ordered to pay attorney's fees in 10 
different cases. In six cases, fees were awarded under a rare step 
allowed by Title VII of the Civil Rights Act, which according to the 
U.S. Supreme Court is reserved for cases that are ``frivolous, 
unreasonable, or without foundation'' or ``continued to [be] 
litigate[d]'' after those circumstances became present.
  In the four other cases, the court awarded fees for failing to 
prevent the destruction of evidence, for discovery abuses and for 
pursuing a case that lacked substantial justification.
  Not all of these cases where EEOC was ordered to pay attorney's fees 
were initiated on this general counsel's watch, but he did initiate 
five of them and it appears he continued to pursue four of them. These 
court losses cost taxpayers and hurt the victims of workplace 
discrimination whose charges are backlogged at EEOC.
  EEOC's credibility is at risk. As one commissioner described, EEOC's 
``reputation and credibility has . . . suffered from several recent 
lawsuits where [EEOC was] not only sanctioned, but openly chastised by 
the courts.''
  EEOC should immediately reconsider the strong emphasis on lawsuits 
that are not based on any complaint and do not even have a victim 
plaintiff.
  In recent years, EEOC has pursued a number of cases without 
complaints, such as age discrimination cases against large accounting 
firms--PricewaterhouseCoopers, Deloitte, and KPMG--whose partners have 
voluntarily adopted a mandatory retirement age.
  Age discrimination is certainly a significant problem that EEOC 
should work to address. But they should go about it by assisting the 
more than 21,000 people who complained to EEOC of age discrimination in 
2013, rather than directing investigations at an industry they find 
suspect.
  The five-member Commission has exercised too little restraint over 
the general counsel. In 1995, the EEOC's then Commissioners gave the 
general counsel far more authority to bring whatever cases he wanted, 
with no check from the Commission. By 2012, this practice led to only 3 
of the 122 lawsuits filed that year coming before the Commission for 
approval. Although EEOC has taken some steps to increase the 
Commission's role in approving litigation, more should be done. The 
Commission has the authority and duty to reverse this imprudent 
decision and return to performing its statutorily obligated 
responsibilities.
  On my second concern, I believe the Commission has not been 
transparent in its issuance of guidance and the information it shares 
with the public about its activities. The EEOC sets national workplace 
discrimination policy by issuing formal regulations as well as 
guidance, which are meant to help employers and employees understand 
how the law applies to them. EEOC does not allow the public to review 
or comment upon its draft guidance, even in cases of novel, significant 
or controversial guidance.
  This is especially concerning because in two cases last year, the 
Supreme Court rejected substantive positions found in EEOC guidance. 
EEOC's issuance of guidance is not in compliance with the 
administration's own best practices recommendations or the 
recommendations of three of the current Commissioners.
  I am concerned about this because agencies expect people to follow 
guidance. At a hearing in June, I asked the head of the Office for 
Civil Rights at the Department of Education whether she expected higher 
education institutions to comply with the Office for Civil Rights 
guidance and she said yes.
  Senator Enzi also urged greater transparency on significant guidance 
when he was ranking member of the HELP Committee, and I share his view.
  So what harm would come from allowing the public to comment on draft 
guidance prior to issuing it?
  Finally, my third concern about EEOC and its general counsel, Mr. 
Lopez, is this. Employer wellness plans with premium discounts were 
specifically authorized in the health care law and I worked on it with 
my colleagues on both sides of the aisle--it was one of the few 
provisions of Obamacare with Republican and Democrat buy in.
  I am concerned that EEOC has pursued litigation against employers who 
have followed the health care law and implemented voluntary employer 
wellness plans to encourage healthy lifestyle choices.
  These wellness plan lawsuits are sending a confusing message to 
employers--reliance on the health care law's authorization of wellness 
plans does not mean you would not be sued by the EEOC.
  This is why I intend to introduce legislation to prevent EEOC from 
suing employers who are following the law in offering wellness 
programs. Employers who are acting in good faith, relying on a law 
should not face uncertainty of litigation due to an agency's misguided 
priorities.
  EEOC is tasked with an important mission--to ensure workplaces are 
free from discrimination. EEOC's misdirected focus and high-profile 
litigation failures are coming at significant cost to taxpayers and 
victims of workplace discrimination.
  Unfortunately, when questioned about these missteps and the Agency's 
focus on litigation without a single complaint, Mr. Lopez was not 
forthcoming with his answers. Therefore, I cannot support Mr. Lopez's 
nomination.
  Mr. REID. I yield back the time.
  The PRESIDING OFFICER. Without objection, all time is yielded back.
  Under the previous order, the question is, Will the Senate advise and 
consent to the nomination of P. David Lopez, of Arizona, to be General 
Counsel of the Equal Employment Opportunity Commission?
  Mr. SESSIONS. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Louisiana (Ms. Landrieu) 
and the Senator from West Virginia (Mr. Rockefeller) are necessarily 
absent.
  Mr. CORNYN. The following Senators are necessarily absent: the 
Senator from Oklahoma (Mr. Coburn) and the Senator from Mississippi 
(Mr. Cochran).
  The PRESIDING OFFICER (Ms. Heitkamp). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 53, nays 43, as follows:

                      [Rollcall Vote No. 302 Ex.]

                                YEAS--53

     Baldwin
     Begich
     Bennet
     Blumenthal
     Booker
     Boxer
     Brown
     Cantwell
     Cardin
     Carper
     Casey
     Coons
     Donnelly
     Durbin
     Feinstein
     Franken
     Gillibrand
     Hagan
     Harkin
     Heinrich
     Heitkamp
     Hirono
     Johnson (SD)
     Kaine
     King
     Klobuchar
     Leahy
     Levin
     Manchin
     Markey
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murphy
     Murray
     Nelson
     Pryor
     Reed
     Reid
     Sanders
     Schatz
     Schumer
     Shaheen
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Walsh
     Warner
     Warren
     Whitehouse
     Wyden

                                NAYS--43

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Burr
     Chambliss
     Coats
     Collins
     Corker
     Cornyn
     Crapo
     Cruz
     Enzi
     Fischer

[[Page 16551]]


     Flake
     Graham
     Grassley
     Hatch
     Heller
     Hoeven
     Inhofe
     Isakson
     Johanns
     Johnson (WI)
     Kirk
     Lee
     McCain
     McConnell
     Moran
     Murkowski
     Paul
     Portman
     Risch
     Roberts
     Rubio
     Scott
     Sessions
     Shelby
     Thune
     Toomey
     Vitter
     Wicker

                             NOT VOTING--4

     Coburn
     Cochran
     Landrieu
     Rockefeller
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motions to 
reconsider are considered made and laid upon the table, and the 
President will be immediately notified of the Senate's actions.

                          ____________________