Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On September 17, 2014, the House Subcommittee on Workforce Protections held a hearing to discuss legislative proposals to increase transparency and accountability at the Equal Employment Opportunity Commission (EEOC). In his opening statement, Chairman of the Subcommittee, Rep. Tim Walberg (R-MI), said the EEOC “has spent a great deal of time and resources advancing a deeply flawed enforcement and regulatory agenda” and that “[e]mployers have fallen under EEOC’s intense scrutiny without any allegation of employment discrimination.” Chairman Walberg also criticized the agency for “pursuing a regulatory scheme that is making it more difficult for employers to protect employees and consumers.” Walberg urged his colleagues to support legislation that would “help shine more sunlight on EEOC activities, compel the agency to work with employers in good faith to resolve complaints, force the commissioners to do their jobs and oversee the agency’s enforcement actions, and provide a safe harbor to employers complying with federal, state, and local mandates, such as laws requiring criminal background checks during the hiring process.”
The legislation under consideration includes the EEOC Transparency and Accountability Act (H.R. 4959), the Litigation Oversight Act of 2014 (H.R. 5422), and the Certainty in Enforcement Act (H.R. 5423). H.R. 4959, introduced by Rep. Richard Hudson (R-NC), would increase EEOC transparency by, among other provisions, requiring the Commission to post on its website and in its annual report any case in which the commission was required to pay court-sanctioned fees or costs. H.R. 5422, introduced by Rep. Walberg, would require EEOC Commissioners to approve by majority vote all EEOC-initiated litigation involving multiple plaintiffs or allegations of systemic discrimination. The third bill, H.R. 5423, also introduced by Rep. Walberg, would provide a safe harbor to employers complying with federal or state mandates, such as a law requiring criminal background checks.
Lynn Clements, an HR Consultant, attorney and former EEOC staff member, testified about the Commission’s conciliation practices, delegation of litigation authority and review of employers’ use of criminal background screens. She stated “conciliation is often given short shrift” by the EEOC and also called for greater Commissioner review of litigation proposals, which she contends can lead to more robust conciliation efforts. According to Clements, the EEOC’s guidance on the use of criminal background screens “failed to provide a clear path for employers who must weigh the competing interests of the agency’s position and other federal, state and local laws.”
Another witness, Bill Lloyd, the General Counsel for Deloitte LLP, cited the “need to [e]nsure that important decisions about EEOC enforcement policy and allocation of scarce resources are made by the Commissioners who are appointed by the President and confirmed by the Senate.” In his testimony, Lloyd stated “EEOC staff has recently challenged the fundamental structure, indeed the very existence, of Deloitte’s business – our decision to organize as a limited liability partnership.” He also raised concerns about the Commission’s extensive delegation of authority to the General Counsel to initiate litigation.
Another witness raised similar concerns with delegation of the Commission’s litigation authority to its General Counsel. This witness opined that H.R. 5422 would ensure that the EEOC cannot bring major or controversial litigation without a full up-or-down vote by a majority of the Commission. He contended also that H.R. 4959 reporting requirements would ultimately allow the Commission and Congress to determine statistically whether the Commission’s delegation of authority to the General Counsel is undermining the agency’s integrity. Testifying with respect to H.R. 5423, the witness contended that it may provide a useful fix that would prevent the EEOC’s informal criminal background guidance from trumping certain state and local laws.
However, a fourth witness, Professor Michael Foreman, Director of the Civil Rights Appellate Clinic at the Pennsylvania State University Dickinson School of Law, was not supportive of the legislative proposals. He stated that the bills “will have a chilling impact on the EEOC’s ability to enforce the law and will divert what limited resources the EEOC has to data collection and website management.” Testifying in opposition to the legislation, Foreman contended that the “proposed Oversight Act will weaken the EEOC’s effectiveness as a self-functioning federal enforcement agency.”
The timing of further action on the three bills by the Committee or House has not been announced. Although the bills could likely pass the House if brought to a vote, their prospects in the Senate this year are dim. More information on the hearing and witness statements are available here.