Hearing of the Workforce Protections Subcommittee of the House Education and Workforce Committee - Examining the Regulatory and Enforcement Actions of the Equal Employment Opportunity Commission

Hearing

Chair Berrien we are pleased to see you today. It has been a long time since the committee convened a hearing to examine the policies and priorities of the Equal Employment Opportunity Commission. We are grateful you've joined us and thank you for your service to our country.

Republicans and Democrats share the same goal: We want to ensure the American people work in an environment free of discrimination. Whether or not an individual succeeds in a workplace should be determined by merit and hard work, not the unlawful prejudice of their boss. For most employers, a person's skills and drive to succeed are what matter most. However, bad actors will put personal bigotries before the talent and dedication of America's workers.

A recent case out of Davenport, Iowa provides a stunning example of this difficult reality. According to reports, 32 men with intellectual disabilities were subjected to abuse and discrimination. The deplorable treatment these men faced included verbal and physical harassment, substandard living conditions, and inadequate medical care. EEOC is to be applauded for helping to bring those who committed these heinous acts to justice.

Federal laws prohibiting employment discrimination should be vigorously and fairly enforced. That's why we are here today. There has been a significant shift in both the enforcement and regulatory priorities at EEOC in recent years. It is our responsibility to ask tough questions to ensure agency policies are in the best interests of workers and employers.

For example, does it serve the best interests of workers and employers when EEOC investigates businesses without evidence of wrongdoing? The agency has set a goal that up to 24 percent of all litigated cases be systemic in nature. At times, these investigations are launched without any employee alleging discrimination. Meanwhile, a backlog of more than 70,000 discrimination claims by workers continues to plague the commission.

At a time of high unemployment and record federal debt, every job and dollar counts. We should not be diverting scarce resources away from workers who believe they've been harmed in order to follow a hunch. And we should not be dragging our nation's job creators through unnecessary and costly investigations without a factual basis of wrongdoing.

Does it also serve the best interest of workers and employers when the full weight of the agency's litigation power is ceded to one individual? Congress created a commission of five members to ensure accountability within the agency. Yet for almost 20 years the commission has delegated that authority to the Office of General Counsel. Under only limited circumstances can the commission vote on the general counsel's decision to intervene in litigation and these narrow exceptions are not always clear.

As a result, the general counsel has almost complete control over EEOC's enforcement agenda. This cannot be what Congress intended and it's having a real impact on the lives of workers. One case initiated by the general counsel was later rejected by a federal district judge. The judge described the commission's actions as a "sue first, ask questions later litigation strategy" and noted that "dozens of potentially meritorious sexual harassment claims may now never see the inside of a courtroom."

Finally, is it in the best interests of workers and employers when the commission pursues regulatory policies that may make workplaces less safe? In April 2012, EEOC revised its long-standing guidance on the use of criminal background checks. Should the background check reveal a criminal offense, employers will have to conduct an "individual assessment" and identify a "business necessity" that merits denying the individual employment.

However, this proposal has already been criticized by one federal court. As one federal judge noted almost 25 years ago, "Obviously a rule refusing honest employment to convicted applicants is going to have an disparate impact upon thieves."

This policy also puts many employers at risk of running afoul of state or local laws that require background checks for certain positions of public trust, such as child care providers. Employers will bear the burden of any unintended consequences stemming from this regulatory change, not EEOC.

Yet they and the public were denied an opportunity to comment on the proposal before it became final. Public meetings on broader topics isn't the level of openness and transparency the American people deserve. Shouldn't workers and employers have an opportunity to comment on policy changes that affect their workplaces?

Chair Berrien, these are serious questions that I hope we can discuss with you today. I know that is a lot to address in one hearing. However, we hope this hearing starts a new, more open dialogue between the committee and EEOC. As I noted earlier, we all share the same goal and only when we work together can we move closer toward that goal. Thank you again for being with us today.

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