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93–815 2016

H.R. 548, ‘‘CERTAINTY IN ENFORCEMENT ACT 

OF 2015’’, H.R. 549, ‘‘LITIGATION OVERSIGHT 

ACT OF 2015’’, H.R. 550, ‘‘EEOC TRANSPARENCY AND ACCOUNTABILITY ACT’’, AND 

H.R. 1189, ‘‘PRESERVING WELLNESS PROGRAMS 

ACT’’ 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, MARCH 24, 2015 

Serial No. 114–7 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 


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COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Todd Rokita, Indiana 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

David Brat, Virginia 

Buddy Carter, Georgia 

Michael D. Bishop, Michigan 

Glenn Grothman, Wisconsin 

Steve Russell, Oklahoma 

Carlos Curbelo, Florida 

Elise Stefanik, New York 

Rick Allen, Georgia 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Ranking Member 

Rube ́n Hinojosa, Texas 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Pocan, Wisconsin 

Mark Takano, California 

Hakeem S. Jeffries, New York 

Katherine M. Clark, Massachusetts 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Juliane Sullivan, Staff Director 

Denise Forte, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

Duncan Hunter, California 

Glenn Thompson, Pennsylvania 

Todd Rokita, Indiana 

Dave Brat, Virginia 

Michael D. Bishop, Michigan 

Steve Russell, Oklahoma 

Elise Stefanik, New York 

Frederica S. Wilson, Florida, 

Ranking Member 

Mark Pocan, Wisconsin 

Katherine M. Clark, Massachusetts 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Marcia L. Fudge, Ohio 


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C O N T E N T S 

Page 

Hearing held on March 24, 2015 ............................................................................ 1 

Statement of Members: 

Walberg, Hon. Tim, Chairman, Subcommittee on Workforce Protections ... 1 

Prepared statement of ............................................................................... 4 

Wilson, Hon. Frederica S., Ranking Member, Subcommittee on Workforce 

Protections ..................................................................................................... 6 

Prepared statement of ............................................................................... 8 

Statement of Witnesses: 

Heriot, Ms. Gail, Professor of Law, University of San Diego School of 

Law, San Diego, CA ...................................................................................... 68 

Prepared statement of ............................................................................... 70 

House, Ms. Tanya C., Director of Public Policy, Lawyers’ Committee 

For Civil Rights Under Law, Washington, D.C. ......................................... 49 

Prepared statement of ............................................................................... 51 

Kehoe, Mr. Paul H., Senior Counsel, Seyfarth Shaw LLP, Washington, 

DC .................................................................................................................. 11 

Prepared statement of ............................................................................... 13 

Simon, Ms. Tamara M., Managing Director, Knowledge Resource Center 

and Career Practice, Buck Consultants, Washington, D.C. ...................... 29 

Prepared statement of ............................................................................... 31 

Additional Submissions: 

Chairman Kline: 

Letter dated March 6, 2015, from American Benefits Council .............. 140 

Letter dated March 13, 2015, from ERIC the ERISA Industry Committee ...................................................................................................... 143 

Letter dated March 16, 2015, from National Association of Health 

Underwriters (NAHU) ........................................................................... 144 

Letter dated March 17, 2015, from Yager, Mr. Daniel V., President 

and General Counsel ............................................................................. 145 

Letter dated March 20, 2015, from National Business Group on 

Health ..................................................................................................... 147 

Letter dated March 23, 2015, from American College of Occupational 

and Environmental Medicine ................................................................ 150 

Roe, Hon. David P., a Representative in Congress from the state of 

Tennessee: 

Letter dated March 13, 2015, from ERIC the ERISA Industry Committee ...................................................................................................... 153 

Scott, Hon. Robert C. ‘‘Bobby’’, Ranking Member, Committee on Education and the Workforce: 

Title 7 U.S.—42 USC 2000e–12 ............................................................... 91 

Chairman Walberg: 

Letter dated March 13, 2015, from ERIC the ERISA Industry Committee ...................................................................................................... 104 

Letter dated March 22, 2015, from Knowledge Universe United 

States ...................................................................................................... 105 

Letter dated March 23, 2015, from Associated Builders and Contractors, Inc. (ABC) ...................................................................................... 107 

Letter dated March 23, 2015, from Early Care and Education Consortium ......................................................................................................... 109 

Letter dated March 23, 2015, from International Public Management 

Association for Human Resources (IPMA–HR) ................................... 110 

Letter dated March 24, 2015, from undersigned organizations ............ 111 

Letter dated March 26, 2015, from WorldatWork, The Total Rewards Association .................................................................................. 116 

Letter dated April 6, 2015, from Seyfarth Shaw .................................... 117 


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IV 

Additional Submissions—Continued 

Chairman Walberg—Continued 

Letter dated April 7, 2015, from AARP ................................................... 120 

Letter dated April 7, 2015, from Consumer Data Industry Association 

(CDIA) ..................................................................................................... 124 

Prepared statement of from Consumer Data Industry Association 

(CDIA) ..................................................................................................... 126 

Letter dated March 24, 2015, from undersigned organizations ............ 114 

Ms. Wilson: 

Letter dated April 13, 2015, from U.S. Equal Employment Opportunity Commission ................................................................................. 162 

Letter dated March 20, 2015, from undersigned organizations ............ 155 

Letter dated March 30, 2015, from National Council on Disability ...... 158 


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H.R. 548, CERTAINTY IN ENFORCEMENT ACT 

OF 2015; H.R. 549, LITIGATION OVERSIGHT 

ACT OF 2015; H.R. 550, EEOC TRANSPARENCY AND ACCOUNTABILITY ACT; AND 

H.R. 1189, PRESERVING EMPLOYEE 

WELLNESS PROGRAMS ACT 

Tuesday, March 24, 2015 

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

Washington, D.C. 

The subcommittee met, pursuant to call, at 10:02 a.m., in Room 

2175, Rayburn House Office Building, Hon. Tim Walberg (Chairman of the subcommittee) presiding. 

Present: Representatives Walberg, Brat, Stefanik, Wilson, Pocan, 

Adams, and DeSaulnier. 

Also present: Representatives Kline and Scott. 

Staff present: Ed Gilroy, Director of Workforce Policy; Christie 

Herman, Professional Staff Member; Nancy Locke, Chief Clerk; 

John Martin, Professional Staff Member; Zachary McHenry, Legislative Assistant; Daniel Murner, Deputy Press Secretary; Michelle 

Neblett, Professional Staff Member; Brian Newell, Communications 

Director; Krisann Pearce, General Counsel; Molly McLaughlin 

Salmi, Deputy Director of Workforce Policy; Alissa Strawcutter, 

Deputy Clerk; Alexa Turner, Legislative Assistant; Tylease Alli, 

Minority Clerk/Intern and Fellow Coordinator; Austin Barbera, Minority Staff Assistant; Denise Forte, Minority Staff Director; Melissa Greenberg, Minority Labor Policy Associate; Carolyn Hughes, 

Minority Senior Labor Policy Advisor; Eunice Ikene, Minority 

Labor Policy Associate; Kendra Kosko Isaacson, Minority Labor 

Detailee; Brian Kennedy, Minority General Counsel; Richard Miller, Minority Senior Labor Policy Advisor; Amy Peake, Minority 

Labor Policy Advisor; Veronique Pluviose, Minority Civil Rights 

Counsel; Theresa Tilling-Thompson, Minority Special Projects Assistant. 

Chairman WALBERG. A quorum being present, the subcommittee 

will come to order. 

Good morning. Today the subcommittee will examine a number 

of legislative proposals intended to provide greater transparency 


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and accountability to the Equal Employment Opportunity Commission. 

I would like to thank our witnesses for joining us. We have a distinguished panel to help us look at a number of complex and important issues. 

All workers deserve strong protections against employment discrimination. Toward that end, there continues to be support for federal laws such as the Americans with Disabilities Act, the Civil Liberties—or Civil Rights Act, and the Age Discrimination in Employment Act, and others. 

There is no doubt that every member of the Committee expects 

the fair and vigorous enforcement of these laws in our nation’s 

workplaces, and that is precisely why we are here today. 

The Equal Employment Opportunity Commission plays a vital 

role ensuring America’s workers are free to pursue employment 

without fear of discrimination based on their race, their gender, 

their disability, or religion. We need this agency to do its job effectively so that every American has a shot to succeed based on merit 

and hard work. 

Unfortunately, the enforcement and regulatory approach adopted 

by EEOC in recent years raises serious doubts about whether our 

nation’s best interests are being served. 

For example, the Commission has implemented controversial 

guidance on the use of criminal background checks that will make 

it more difficult for employers to protect their employees and customers. At a hearing held last Congress, the subcommittee received 

testimony from Ms. Lucia Bone, whose sister, Sue Weaver, was 

murdered by a man who months earlier had cleaned the air ducts 

in her home. A simple criminal background check might have 

saved this woman’s innocent life. 

State and local policies requiring criminal background checks are 

intended to protect Americans who come in contact with workers 

in vulnerable situations, such as at home and in the classroom. As 

a result of EEOC’s misguided policy, more Americans will be put 

in harm’s way, including women and children. 

The EEOC should scrap this misguided policy completely. But if 

it won’t, then Congress should take steps to rein it in and help provide families greater peace of mind the next time they invite a 

stranger into their home or a child’s classroom. 

Furthermore, EEOC has challenged employee wellness programs. 

Employers develop these innovative programs in order to improve 

the health of employees and their families, increase productivity, 

and reduce health costs. Yet litigation pursued by the Commission 

is actually discouraging employers from implementing these programs even though Congress, on a bipartisan basis, has expressed 

its clear support for employee wellness programs. 

Lastly, EEOC is spending more time and resources pursuing systemic or class action investigations, often without any allegation of 

wrongdoing. The Commission has also been sanctioned in recent 

years for pursuing claims that are frivolous and without merit. 

This is how one federal court—circuit court described the EEOC 

enforcement action, and I quote: ‘‘EEOC brought this case on the 

basis of a homemade methodology, crafted by witness with no particular expertise to craft it, administered by persons with no parVerDate Sep 11 2014 02:54 Nov 04, 2016 Jkt 093815 PO 00000 Frm 00006 Fmt 6633 Sfmt 6602 E:\HR\OC\A815.XXX A815

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ticular expertise to administer it, tested by no one, and accepted 

only by the witness himself.’’ 

Meanwhile, a backlog of discrimination claims filed by individual 

workers continues to plague the Commission. This is no way to run 

an agency with a mission as important as the EEOC’s, and we 

must demand better. To help workers succeed in the workplace 

without fear of discrimination, Congress has a responsibility to 

hold the Commission accountable for its regulatory and enforcement policies. 

We will examine today a number of legislative proposals to help 

us do just that. Together, these proposals will instill greater transparency and accountability in EEOC, and improve its enforcement 

activities, and help more workers and employers enjoy the benefits 

of employee wellness programs. 

I look forward to discussing in greater detail with our witnesses 

the positive reforms in these bills and hope they will receive strong, 

bipartisan support. 

With that, I will now recognize the Ranking Member of the subcommittee, Representative Wilson, for her opening remarks. 

[The statement of Chairman Walberg follows:] 


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Ms. WILSON. Thank you, Mr. Chairman. 

Today we will examine four bills that would impact the Equal 

Employment Opportunity Commission, EEOC, in ways that I fear 

will compromise the enforcement of civil rights laws. Since 2014, 

we will have had three hearings regarding the EEOC; yet, we have 

not once invited the Commissioners themselves to testify about the 

bills that could severely impact their enforcement of employment 

civil rights laws. 

The name of this subcommittee is Workforce Protections, and by 

our name alone it is clear that we should be doing our best to protect workers. These four bills appear to be a grab-bag for unscrupulous employers seeking to strip the EEOC of the tools they need to 

combat employment discrimination on the basis of race, color, religion, national origin, sex, pregnancy, age, disability, and genetic information. 

Fifty years ago, after the creation of the enactment of the Civil 

Rights Act of 1965 and the creation of the EEOC, the job of the 

EEOC is far from complete, despite many advances. 

Mr. Chairman, these four bills today ignore the fact that race, 

gender, disability, and age discrimination persist, and we should 

not be hindering the agency’s charge with combatting unlawful discrimination. In fiscal year 2014, just for example, in fiscal year 

2014, of the 88,778 discrimination charges filed with EEOC, 35 percent were based on race, 29 percent were based on sex, 29 percent 

were based on disability status, and 23.2 percent were based on 

age discrimination. 

Mr. Chairman, I am at a loss to understand why we would want 

to tie the hands of the EEOC, an agency that has a backlog of 70- 

plus charges. 

Here is how we would tie their hands. Number one: Stripping the 

general counsel’s authority to make a determination about what 

charges the EEOC should pursue to protect American workers, 

given there is a policy in place to ensure novel legal questions and 

controversial matters must already—already be submitted to the 

Commission for approval. 

Number two: Limiting the EEOC’s disparate impact examination 

of criminal background checks. Even Clarence Thomas, Commission chair in 1987, adopted the agency’s guidance, which says that 

the criminal background checks, like other hiring requirements 

that could exclude certain people, should only relate to the job. 

Number three: Granting liability exemption to employers who 

violate employee privacy and civil rights under the American and 

Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). 

And number four: Finally, undermining the successful conciliation process by imposing legal hurdles to resolving cases and opening the process to extensive litigation based on the adequacy of the 

conciliation process, rather than resolving the substance of whether 

or not there are impermissible discrimination. 

EEOC’s job should be about getting results, not providing full 

employment for law firms looking for new ways to frustrate resolution of a disputed discrimination case. 

Mr. Chairman, I would ask that you call another hearing where 

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sioners. We need to assess the implications of these bills and determine whether there are unintended effects, such as piling on delays 

in resolving cases. 

We need to hear from the Commissioners to determine whether 

these bills will set up roadblocks for fair and timely resolution of 

claims by those who face race, sex, age, or disability-based discrimination. We want to determine if these bills, as drafted, will spawn 

unnecessary litigation and create more confusion. 

I thank the witnesses for being here today, and I look forward 

to hearing your testimony. Thank you so much for coming. 

I yield back to the Chairman. 

[The statement of Ms. Wilson follows:] 


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Chairman WALBERG. I thank the gentlelady. 

Pursuant to Committee rule 7(c), all subcommittee members will 

be permitted to submit written statements to be included in the 

permanent hearing record. And without objection, the hearing 

record will remain open for 14 days to allow statements, questions 

for the record, and other extraneous material referenced during the 

hearings to be submitted in the official hearing record. 

It is now my pleasure to introduce our distinguished panel of witnesses. 

Mr. Paul Kehoe is a senior counsel with Seyfarth Shaw law firm 

here in Washington, D.C. Mr. Kehoe is a member of the Seyfarth’s 

labor and employment practice group and a former attorney advisor to the Honorable Victoria A. Lipnic, EEOC Commissioner. His 

practice focuses on all aspects of employment discrimination law, 

including the development of strategies to prevent and resolve employment discrimination litigation under federal and state anti-discrimination statutes. 

Welcome. 

Tamara Simon is a managing director with Buck Consultants 

Knowledge Resource Center here in Washington, D.C. Ms. Simon 

is responsible for Buck’s national multi-practice legal analysis and 

publications, government relations, research, surveys, training, and 

knowledge management. She serves as a national resource in compliance issues affecting employers’ health and welfare benefits. 

Welcome. 

Tanya Clay House is the public policy director at the Lawyers’ 

Committee for Civil Rights Under Law here in Washington, D.C. 

Ms. House works closely with all Lawyers’ Committee projects focusing on core issues such as education, voting rights, employment 

discrimination, fair housing, affirmative action, criminal justice, 

immigration, and other racial diversity issues. 

Welcome. 

And finally, Gail Heriot is a professor of law at the University 

of San Diego School of Law in San Diego, California. Professor Heriot is a member of the U.S. Commission on Civil Rights. She teaches and writes in the areas of civil rights, employment discrimination, product liability remedies, and torts. 

Welcome, as well. 

I will now ask our witness to—witnesses to stand and raise your 

right hand, as is the custom in this Committee. 

[Witnesses sworn.] 

Let the record reflect—you may be seated—the witnesses answered in the affirmative. 

Before I recognize each of you to provide your testimony, let me 

briefly explain the lighting system. Just as in the traffic lights, red 

means stop, but you get to that by going green for your first four 

minutes, yellow will be indicative of a final minute before the red 

light comes on. We will ask you to finish as quickly your thought 

after the red light appears. 

I will ask the same of the panel, though I might not be quite as 

stiff as our full Committee Chairman, Mr. Kline. Yet, I will do my 

best to follow suit. 

I will now recognize Mr. Kehoe for your five minutes of questioning. 


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TESTIMONY OF MR. PAUL KEHOE, SENIOR COUNSEL, 

SEYFARTH SHAW LLP, WASHINGTON, D.C., TESTIFYING ON 

BEHALF OF THE U.S. CHAMBER OF COMMERCE 

Mr. KEHOE. Chairman Walberg, Chairman Kline, Ranking Member Wilson, and members of the subcommittee, thank you for inviting me to testify today on behalf of the U.S. Chamber of Commerce. 

The Chamber of Commerce is a longstanding supporter of reasonable and necessary steps designed to achieve equal employment 

opportunity. However, the Chamber has serious concerns as to how 

these laws are currently being administered and enforced by the 

EEOC. 

No matter how well-intentioned, any law enforcement agency’s 

judgment, including the EEOC, can become clouded by hubris and 

susceptible to overreach. Too often, courts have taken exception to 

the EEOC’s shoot-first-aim-later tactics. 

For example, just last Friday, a judge awarded attorney’s fees to 

two companies forced to defend themselves against what the court 

called frivolous litigation. Just a month ago, a 4th Circuit judge 

issued a scathing opinion against the EEOC for not being vigilant 

enough to avoid abusing the power that Congress bestowed upon 

it. 

These and other litigation embarrassments can be blamed in 

part on the Commissioners’ lack of control over the EEOC litigation 

program. Only Commissioners have the statutory authority to initiate litigation. In 1996 the Commissioners delegated away much 

of this authority to the general counsel, who then re-delegated 

away to regional attorneys. 

The Commission partially rescinded this delegation in 2012, but 

problems persist. Far too often, Commissioners learn about litigation by an EEOC press release or social media. The general counsel 

or unappointed, unconfirmed regional attorneys are making policy 

through litigation. However, any EEOC general counsel is the 

agency’s litigator, not its policymaker. 

For 40 years courts have reviewed the EEOC’s statutory conciliation efforts. In 2013, a 7th Circuit Court rejected this statutory 

safeguard, finding conciliation not subject to judicial review. 

This issue is currently before the Supreme Court in EEOC v. 

Mach Mining, where the EEOC argued that, as a law enforcement 

agency, its actions related to whether it complied with statutory 

mandates are not reviewable. This position is simply breathtaking 

in scope and encourages the EEOC to purposefully eschew conciliation in search of the next lawsuit—the opposite of congressional intent. 

All of the issues that have plagued the EEOC recently were on 

full display in EEOC v. Honeywell, a case filed by the EEOC seeking a preliminary injunction to prohibit Honeywell from offering financial incentives pursuant to the wellness program. The EEOC 

received charges on October 16, 2014, determined that day that a 

violation of the ADA and GINA occurred, demanded that Honeywell stop using financial incentives, and filed litigation 11 days 

later. 

However, the Affordable Care Act, HIPAA, and joint regulations 

issued by three cabinet-level agencies permit—indeed, encourage— 

financial incentives and wellness programs. The EEOC’s theory 


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was that the incentives made participation non-voluntary under 

the ADA and GINA even if the incentives complied with the Affordable Care Act and its implementing regulations. 

One district office believed so and filed suit without Commissioner approval, seeing to establish a policy position never adopted 

by the Commissioners. This rogue agency strategy will likely have 

a chilling effect on the development and implementation of 

wellness programs. 

Ultimately, the EEOC’s choice to focus on systemic litigation 

with questionable theories has caused it to ignore instances of more 

traditional types of discrimination, leaving alleged victims and 

their employers in limbo, literally for years. 

A decade ago, the Commission would file almost 375 lawsuits annually. Despite an increased budget in 2010, the EEOC now files 

only 130. One can rightfully ask what the EEOC is doing with its 

sizeable budget, as it is clear that all too often they are not investigating promptly, not conciliating in good faith, and not litigating 

very well. 

Justice Brandeis once said that sunlight is the best disinfectant. 

The four bills under consideration today would provide that sunlight and are common-sense, narrow solutions to these issues. 

H.R. 549 will ensure that policymaking is rightfully returned to 

the commissions—Commissioners in all multi-victim litigation that 

the EEOC pursues. H.R. 550 will clarify the EEOC’s duty to conciliate and ensure that such efforts are reviewable in court. H.R. 1189 

will ease the uncertainty created by the EEOC’s litigation against 

Honeywell. 

Finally, H.R. 548 provides clarity for employers faced with state 

or local mandates prohibiting the hiring of certain convicted felons 

for certain positions. That is all that it does. 

Overall, these bills should enhance the EEOC’s functionality and 

accountability, and the chamber supports them. 

[The testimony of Mr. Kehoe follows:] 


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Chairman WALBERG. Thank you. 

Now recognize Ms. Simon for five minutes of testimony. 

TESTIMONY OF MS. TAMARA SIMON, MANAGING DIRECTOR, 

KNOWLEDGE RESOURCE CENTER, BUCK CONSULTANTS, 

WASHINGTON, D.C., TESTIFYING ON BEHALF OF THE AMERICAN BENEFITS COUNCIL 

Ms. SIMON. Good morning, Chairman Walberg, Chairman Kline, 

Ranking Member Wilson, and members of the subcommittee. My 

name is Tami Simon and I am managing director of the Knowledge 

Resource Center and the Career Practice at Buck Consultants and 

Xerox Company. It is my honor to testify today on behalf of the 

American Benefits Council, of which Buck Consultants is a member. 

Collectively, the Council’s members either sponsor directly or 

provide services to employee benefit plans that cover over one million Americans. Many of the council’s members are at the forefront 

of developing wellness programs to help employees live healthier 

lives. 

I have three points that I would like to share with you today. 

First, why are wellness programs good for America? Second, what 

are the current challenges that employers are facing with their 

wellness programs today? And third, why is legislation necessary? 

First, why are wellness programs good for America? Wellness 

programs help achieve better health outcomes for employees and 

also have the potential to increase employee productivity by helping to reduce absenteeism due to sickness and disability, improve 

workforce morale and engagement, and reduce health care spending. 

The prospect of a healthier workforce has compelled a growing 

number of companies to develop and implement wellness strategies; 65 percent of respondents to Buck’s 2014 wellness survey indicated that they have a wellness strategy. That is up from 49 percent in 2007. Other surveys estimate that more than 75 percent of 

U.S. employees now have access to wellness programs. 

A critical component of encouraging employers to offer meaningful wellness programs is consistent federal policy that promotes the 

health of Americans and is aligned across multiple agencies and 

Congress. 

As such, employers applaud Congress for working on a bipartisan 

basis to craft the wellness provision in the Patient Protection and 

Affordable Care Act that built on the existing wellness program 

framework created by HIPAA. This is a rare bipartisan provision 

in the controversial health care reform law and reflects Congress’ 

approval of offering incentives for health-contingent wellness programs. 

Now, as you may recall, HIPAA prohibits group health plan 

wellness programs from discriminating against individuals in eligibility, benefits, and premiums based on a health factor, which includes, among other things, disability. And for many such programs, the law imposes financial limits, notice obligations, and alternative standards for those unable to meet the program standards. 


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HIPAA also contains privacy and security rules protecting individual health information. Information that is obtained through a 

wellness program is part of the group health plan, can’t be used 

without an authorization for any reason other than treatment, payment, or health care operations. 

So what is the current challenge? Notwithstanding employers’ interest in establishing legally compliant wellness programs and the 

bipartisan support of Congress and the administration, a great deal 

of uncertainty exists in current EEOC guidance regarding what 

constitutes a voluntary wellness program under the Americans 

with Disability Act and how the Genetic Information Nondiscrimination Act applies to common wellness program designs. 

This legal uncertainty has been exacerbated by enforcement actions initiated by the EEOC regional offices against some employers’ HIPAA and PPACA-compliant wellness programs. These actions allege that incentives or penalties associated with participation in a group health plan’s wellness program violate the ADA and 

GINA. 

These actions have had a chilling effect on employer wellness 

programs. 

To put it more plainly, currently employers just don’t know what 

to do. On the one hand, they are designing programs that comply 

with HIPAA and PPACA’s clear and comprehensive nondiscrimination rules, but on the other hand, still face the risk of litigation for 

not complying with EEOC’s unclear standards. This is very frustrating for employers that care about the well-being of their employees and take seriously their compliance obligations. 

So what is the solution? Chairman Kline has introduced the Preserving Employee Wellness Programs Act of 2015, or H.R. 1189, 

which supports the existing HIPAA and PPACA legislative framework with regard to wellness programs, striking, we believe, the 

right balance between providing certainty to employers and ensuring an appropriate role for the EEOC to protect employees from 

discrimination. 

The council fully supports advancement of H.R. 1189 and urges 

members of the subcommittee and full committee to please join 

Chairman Kline as cosponsors. 

Thank you for the opportunity to testify, and the council and I 

look forward to working with you to restore certainty to employers 

focusing on improving the health of their workforce. 

[The testimony of Ms. Simon follows:] 


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Chairman WALBERG. Thank you. 

Recognize Ms. House now for your five minutes of testimony. 

TESTIMONY OF MS. TANYA CLAY HOUSE, DIRECTOR OF PUBLIC POLICY, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS 

UNDER LAW, WASHINGTON, D.C. 

Ms. HOUSE. Thank you. 

Chairman Walberg, Ranking Member Wilson, and all the members of the Workforce Protections Subcommittee, I am Tanya Clay 

House, director of public policy of the Lawyers’ Committee for Civil 

Rights Under Law. I thank you for the opportunity to provide this 

testimony today in furtherance of the protection of the equal employment and civil rights of all Americans. 

The Lawyers’ Committee is a nonpartisan, nonprofit organization 

established in 1963 at the request of President John F. Kennedy 

to involve the private bar in providing legal services to address racial discrimination. As policy director and as co-chair of the Employment Task Force of the Leadership Conference on Civil and 

Human Rights, I work with the larger civil rights community on 

the numerous employment issues generally, as well as the necessary enforcement agencies, including the Equal Employment Opportunity Commission as well as the Department of Justice. 

In the interest of time, I would like to focus my remarks primarily on the underlying theories that support a more robust 

EEOC and oppose the passage of legislation that would undermine 

the civil rights of employees. As this Committee is aware, Congress 

has assigned the EEOC the primary responsibility for enforcing, in 

the private sector, most of the provisions prohibiting discrimination 

in employment of every major civil rights law enacted since 1963. 

Yet, H.R. 548, 549, 550, and 1189 all would subtract from the 

scope of the EEOC’s enforcement authority in a way that would 

primarily serve to eliminate the effective and timely enforcement 

of civil rights protections for American workers. Furthermore, the 

claim that such bills would actually enable the EEOC to more efficiently comply with its mandate begs the question of whether supporters of these bills believe the mandate of the EEOC is to eliminate the obligations of employers to not discriminate or allow for 

the creation of hostile work environments, or instead, to protect the 

rights of employees to not be unfairly discriminated against. 

Unless the EEOC’s mandate has changed within the past 24 

hours of me writing this testimony, I would submit that it is the 

latter. 

Employee claims of discrimination are not subsiding. Every year 

during the Obama administration the EEOC has received between 

90 to 100 charges of—100,000 charges of discrimination. Despite a 

relatively small staff, the Commission has been able to conclude 15 

or more of the—percent of the—more of the cases resolved every 

year with some form of compensation or other benefit to the employee who has been charged—who has charged the employer with 

discrimination. 

A recent example is a case that has been prosecuted by the 

EEOC jointly with the Lawyers’ Committee, the state of New York, 

the city of New York, and in this case, the settlement would potenVerDate Sep 11 2014 02:54 Nov 04, 2016 Jkt 093815 PO 00000 Frm 00053 Fmt 6633 Sfmt 6602 E:\HR\OC\A815.XXX A815

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tially provide an estimated $12 million in compensation to 400 

workers. 

Critics of the EEOC view the Commission as a government agency that needs to be restrained. The Lawyers’ Committee and the 

larger civil rights community fervently reject this belief. In light of 

the substantial benefits the Commission obtains for employees, it 

is not reasonable to evaluate the EEOC based upon a small number of reports highlighted by those opposed generally to the EEOC 

and the law it enforces. 

To be clear, H.R. 1189, H.R. 548 would both essentially declare 

by fiat that certain civil rights laws are null and void in application. Specifically, H.R. 548 would undermine the protections that 

Title 7 provides by codifying the use of unjust stereotypes by employers. 

On the other hand H.R. 1189 effectively works to undermine critical civil rights protections and permits workers to be coerced into 

disclosing sensitive medical and genetic information to their employers, thus enabling employers to shift the cost of health insurance away from them and onto the employee. 

H.R. 549 would eliminate the ability of the EEOC to more efficiently engage in investigations and lawsuits, instead instituting 

unnecessary, duplicative, and untimely—and ultimately obstructionist approval process for litigation, while H.R. 550 attempts to 

legislatively require the EEOC to engage in a process that is currently under review at the Supreme Court of—in the case of Mach 

Mining. 

Although the claim was made that all these bills would create a 

more efficient EEOC, the idea that enabling the blanket disregard 

of current civil rights laws is incredulous at best. Congress should 

not disregard the very real existence of ongoing, unjust discrimination against American workers. 

For instance, current estimates are the 70 million Americans 

have an arrest record for criminal offense. Thus, H.R. 548 would 

automatically exclude all of these Americans—70 million Americans—from the workforce. 

This is not just anecdotal. In the case where the Lawyers’ Committee is co-counsel, census records for the 2010 process reveal that 

between 850,000 and 1 million applicants who had FBI arrest 

records were diverted into a separate screening process where 

fewer than 1 percent were hired, while almost 30 percent of the applicants who remained in the regular pool were hired. 

The enforcement of our nation’s civil rights laws, particularly 

those in the employment context, is of a paramount importance to 

the Lawyers’ Committee. If the goal is to enable more effective enforcement on behalf of American workers, we suggest the committee provide for proper funding of the EEOC. 

I encourage this Committee to not move forward with legislation 

that would undermine the EEOC. The American workers are depending on you to protect the employment rights and simply do the 

right thing. 

Thank you. 

[The testimony of Ms. House follows:] 


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Chairman WALBERG. Thank you. 

Now, Professor Heriot, we will recognize you for your five minutes of testimony. 

TESTIMONY OF MS. GAIL HERIOT, PROFESSOR OF LAW, UNIVERSITY OF SAN DIEGO SCHOOL OF LAW, SAN DIEGO, CALIFORNIA 

Ms. HERIOT. Thank you for this opportunity to testify in support 

of the proposed Certainty in Enforcement Act. The bill is aimed largely at correcting a narrow problem created 

by the EEOC’s April 25, 2012 guidance, a controversial document 

aimed at restricting an employer’s ability to take into consideration 

a job applicant’s criminal record when hiring. The guidance purports to draw its authority from Title 7, which prohibits employment discrimination based on race, color, religion, sex, or national 

origin. 

Of course, it requires some gymnastics to get from that kind of 

discrimination to discrimination on the basis of criminal record. To 

do so, the EEOC employs disparate impact theory. 

Under this controversial theory, which, alas, was approved by 

the Supreme Court back in the 1970s in Griggs v. Duke Power 

Company, intent to discriminate on the basis of race, color, et 

cetera is irrelevant. It is enough the employer’s actions have an effect on some—have more effect on some protected groups than others if they are not justified by business necessity. 

I should add at this juncture that in addition to the narrow problem dealt with with the proposed act, there are many other things 

wrong with this guidance. But given the difficulties of passing 

major legislation, this bill must be regarded as a good start—one 

that should enjoy bipartisan support. 

So let me get to the narrow point to the bill. The bill seeks to 

resolve a conflict between federal law, or at least the EEOC’s conception of federal law, and state law. On the one hand, the guidance is aimed in very vague terms at limiting an employer’s discretion to make employment decisions based on the employee’s criminal record. Unfortunately, after reading it, even experienced attorneys won’t know how to resolve particular cases. 

But on the other hand, state law sometimes requires employers 

to decline to hire employees based on their criminal records. So 

what is the employer to do? 

The guidance forces employers into an impossible bind. Employers are told that maybe—but only maybe—federal law forbids what 

state law requires, and that if so, it is their duty to obey federal, 

not state law. 

According to the guidance, it depends on the circumstances of 

each situation since even the EEOC is not foolish enough to believe 

that a convicted pedophile should be hired as a camp counselor or 

that a convicted necrophiliac should be able to get a job at the 

morgue. 

Nobody knows where the EEOC will draw the line. All they know 

is that the agency has been pushing the line very far towards not 

permitting employers to take criminal convictions into account. 

The one thing that is clear is that if, in the EEOC’s view, federal 

law forbids what state law demands, the employers allegiance must 


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be to federal law. Employers are apparently expected to make their 

best guess as to whether federal law overrules state law in any 

particular case. In the end it will be utterly unclear to any conscientious employer exactly what, if anything, the EEOC is attempting to require it to do. 

Now, it is true that under the supremacy clause federal law 

trumps state law, but the guidance’s lack of clarity makes the situation extremely unfair to employers. It shouldn’t be that way. 

When a law contains catch-22s of this kind, jobs get exported overseas. 

Expect two kinds of errors. An employer may wrongly conclude 

that the guidance does not forbid her to follow state law, or she 

may wrongly conclude that it does. In either case, she is going to 

be in hot water with some government agency, be it federal or 

state. 

The proposed Certainty in Enforcement Act throws the hapless 

employer a lifeline. It clarifies federal law in one respect: It tells 

employers that they are free to comply with state law without fear 

of being found in violation of Title 7 on a disparate impact theory. 

Again, very, very narrow. 

Since I have a few seconds left on the clock, let me say that an 

even better proposal would be to overrule the EEOC entirely and 

restore employer discretion to take into account an employee’s 

criminal record according to her best judgment. Simply exempt decisions based on criminal records from liability for disparate impact. 

Note that I am not saying that the federal government should do 

nothing to encourage the hiring of ex-offenders. The government already does this by providing a tax deduction for employers who 

hire ex-offenders. 

This carrot approach works much better than the stick because 

it allows employers to fit the right ex-offender into the right job. 

Pressuring employees to hire ex-offenders against their better judgment will only result in problems. 

[The testimony of Ms. Heriot follows:] 


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Chairman WALBERG. Thank you. 

And thank you, each of the panelists, for your testimony. I am 

sure it will elicit some strong questions. 

And for that, I recognize the Chairman of the full Committee, 

Mr. Kline, sponsor of H.R. 1189, for first round of questioning. 

Mr. KLINE. Thank you, Mr. Chairman, for your courtesy in allowing me to ask the first question. Actually won’t get you anything, 

but thanks so much, and thanks to the witnesses—— 

Chairman WALBERG. I didn’t expect that. 

Mr. KLINE. He tries, though. 

Thanks to the witnesses for being here. We appreciate very much 

your expert testimony. 

Because 1189 is my bill, the Preserving Employee Wellness Programs Act, I want to dig into that a little bit. 

And, Ms. Simon, I am going to go to you. 

We have had very expert testimony from all of you, but I am— 

as you say in your testimony, quote: ‘‘It is impossible for employers 

to abide by rules that do not exist.’’ EEOC’s lack of a clear position 

is what prompted my bill, so the businesses would have a clear 

path forward. So we are trying to get a legislative fix. 

But last week the EEOC apparently recognized this problem, at 

least to some degree, and sent a proposed rule to OMB that will 

purportedly address concerns that we have been talking about 

today. In your opinion, what should this regulation include to address the issues that we were talking about of clarity and flexibility 

for employers in their employee wellness programs? 

Ms. SIMON. Thank you, Chairman Kline, for your question. Great 

question. 

And, you know, I look forward to seeing that EEOC guidance 

very much. We have certainly been waiting a long time for it. And 

hopefully it is going to prove to be as responsive and as flexible as 

your bill without placing any new requirements on employers. 

In our opinion, the EEOC should deem employer-sponsored group 

health plan wellness programs that offer incentives and are currently compliant with HIPAA and PPACA as meeting the wellness 

exception of the ADA and GINA. 

You know, employers are investing significant resources and 

compliance efforts into their wellness programs to ensure that all 

employees can take advantage of them and so that all of them are 

treated fairly. And what they really need is comprehensive, workable, and consistent standards to follow, and they need those right 

now. 

Mr. KLINE. Thank you. I also am eagerly waiting to see what 

comes out of OMB. I would like to say I am optimistic, but we still 

very well may need H.R. 1189. But we will see. 

So there have been some questions raised about privacy, of 

course, and that people don’t want employers to have all of their 

personal information. So let’s talk about HIPAA. 

And, Ms. Simon, I am going to stay with you if that is all right. 

Under HIPAA, can an employer see the private health information 

of the employee or their family who participates in the wellness 

program? 

Ms. SIMON. Again, thank you. That is a very important question 

and one that certainly employers take very seriously. 


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If a program—a wellness program—is part of the group health 

plan then it would be covered by the HIPAA privacy and security 

rules, which I mentioned earlier in my testimony. Now, that rule 

says that the information could not be used without an express authorization for anything other than treatment, payment, or health 

care operations, as set forth in that law. Thus, nobody outside of 

that HIPAA firewall would be able to discuss that information for 

purposes other than those that are intended within the group 

health plan. 

The rules are very, very specific and put the onus on the covered 

entity—and in this case it is the group health plan—to protect the 

information as mandated by HIPAA. And the law requires extensive policies and procedures to be drafted and met, notice to be 

given to plan participants, risk assessments to be completed, and 

training to be provided to any individuals handling the protected 

health information. Your bill is aimed at wellness programs provided under a group health plan, so the HIPAA rules do, in fact, 

provide that protection. 

In most cases, with large employers there is usually a wellness 

vendor that is the go-between the employee and the employer, and 

so it would be considered a HIPAA business associate. While that 

vendor is technically an agent of the employer, most contracts 

specify that the employer will really only receive information that 

is de-identified from that vendor. 

And so business associates, because they are held as liable and 

to that same threshold as covered entities under HIPAA, we are 

hoping that then any third party that does have a business associate agreement with the group health plan would be held to that 

same level, that same standard, and the information would then, 

of course, be protected. 

Mr. KLINE. Thank you. 

I see my time is expired. I yield back. 

Chairman WALBERG. Thank the gentleman. 

I now recognize the gentleman from Virginia and the Ranking 

Member of the full Committee, Mr. Scott. 

Mr. SCOTT. Thank you, thank you, Mr. Chairman. 

Mr. Kehoe, does your testimony include the statement that the 

EEOC does not have the authority to issue regulations under Title 

7? 

Mr. KEHOE. Yes, it does. The EEOC does not have authority to 

issue substantive regulations under Title 7; procedural regulations 

are okay. 

Mr. SCOTT. Well, I just want to enter into the record with unanimous consent the Title 7 U.S.—42 USC 2000e–12 subsection (a), 

‘‘The Commission shall have the authority from time to time to 

issue, amend, rescind suitable procedural regulations to carry out 

the provisions of this chapter. Regulations issued under this section 

shall be in conformity with the standards and limitations of subsection two.’’ I would like unanimous consent to have this in the 

record? 

[The information follows:] 


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Chairman WALBERG. Hearing no objection, it will be entered. 

Mr. SCOTT. Thank you. 

Ms. House, can you remind us why the Griggs decision was so 

important? 

Ms. HOUSE. With regard to Title 7’s application? 

Mr. SCOTT. Right. If you didn’t have the disparate impact—if you 

had a discrete person with ill intent, what would happen if you 

didn’t have Griggs? 

Ms. HOUSE. Well, if we weren’t able to have—without Griggs we 

would not be able to sufficiently provide the necessary evidence and 

showcase the discrimination that has been occurring across this 

country unintentionally, but effectively, particularly against communities of color, against those who have traditionally been discriminated against, those women as well as people with disabilities. That is a critical component within civil rights law that I 

think is effectively utilized within civil—you know, across the civil 

rights community. 

Mr. SCOTT. Now, if you had a disparate impact but it was jobrelated, would Griggs prohibit the consideration of a job-related criteria, although it had a disparate impact? 

Ms. HOUSE. No, it would not. 

Mr. SCOTT. It would not? Does federal law guidance—does EEOC 

guidance require employees—employers to hire those with criminal 

records in violation of state law? 

Ms. HOUSE. No, it does not. 

Mr. SCOTT. How does Ban the Box fit into this discussion? 

Ms. HOUSE. Well, Ban the Box is an attempt to eliminate the 

blanket elimination of those that have a criminal history. There are 

those employers that summarily dismiss those with a criminal history, even potentially an arrest record, from even applying for any 

type of job within that sector or with that employer. And Ban the 

Box eliminates that exclusion—that blanket exclusion—and it is 

something that I know the Lawyers’ Committee, the entire civil 

rights community has been very supportive of, and we have been 

working with other companies and other organizations to eliminate 

that blanket exclusion. 

Mr. SCOTT. Does the Banning the Box prohibit consideration of 

criminal records? 

Ms. HOUSE. No, it does not. In fact, what it does, it eliminates 

a blanket exclusion; it does not prohibit an employer from having 

an individualized assessment of those that might have a criminal 

record. 

In fact, it just allows for there to be an equitable consideration 

of an employee as they are attempting to apply for a job and allow 

them the opportunity to provide the necessary review that they deserve, should this—if their criminal history does become an issue 

within their employment. 

Mr. SCOTT. Now, is the guidance consistent with or in violation 

of the Griggs principle? 

Ms. HOUSE. No, it is not. In fact, it specifically creates and allows 

for there to be—an employer to provide a business necessity, 

should they have a particular exclusion of those that have certain 

criminal histories. 


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I think that there has been a use of—you know, the continued 

use of hyperbole when we talk about those that have a background 

of sexual assault, and they being allowed to work in day care or 

child care environments. That would not be allowable nor acceptable under the current guidance that has been issued by the 

EEOC, and in fact, it is not something that would be permissible 

and that any of the civil rights community would allow. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Chairman WALBERG. I thank the gentleman. 

Continuing that bit of questioning, I recognize myself for my five 

minutes of questioning. 

Professor Heriot, I appreciated your testimony and the real-life 

examples that I would never have thought of—of hiring a 

necrophiliac for a job in a morgue. I guess we do have to consider 

what our laws do and what guidelines are in place. 

In your testimony you said EEOC’s 2012 enforcement guidance 

on criminal background checks is vague and uncertain as to an employer’s duty. The employer will have no way of knowing whether 

EEOC will agree with its judgment in using background checks. 

You also note that—recent background check cases in which 

EEOC lost and was harshly criticized by the courts. Is the EEOC’s 

enforcement guidance going to be of any help to the general counsel 

or regional attorneys pursuing cases brought against employers for 

using background checks? 

Ms. HERIOT. Yes, I get your drift. If it is so easy for employers 

to understand when an employer can be legally liable for failing to 

hire an applicant on account of a criminal record then why does the 

EEOC itself get it wrong so often? 

There have actually been a number of cases where the EEOC has 

brought actions and they have been slapped down by the courts. 

Chairman WALBERG. Any specifics you can give of that for example? 

Ms. HERIOT. The two cases that come to mind for me, because 

they have both been in the U.S. Court of Appeals, are the Freeman 

case and Peoplemark. In both those cases the EEOC brought an action against an employer based on their criminal background 

checks policy, and in both cases both the district court and the 

court of appeals slapped the EEOC down pretty hard. 

And if the EEOC itself is having a difficult time figuring out 

what constitutes a good case, then how are employers supposed to 

get that right? 

In addition, the EEOC has been conducting investigations 

against companies that you would think would have a pretty strong 

case, like G4S, which testified in front of the U.S. Commission on 

Civil Rights—one of their officers did. And they are a company that 

hires security guards. I mean, that is their business—they supply 

security guards to other companies. 

That is a job where you would think that the argument that they 

should be able to consider criminal background was very strong. 

But the EEOC did not agree and has—had conducted a very, very 

long investigation of that company. 

Chairman WALBERG. Okay. Thank you. 

Mr. Kehoe, in a number of cases in recent years the EEOC has 

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costs pursuing claims that are frivolous, groundless, and without 

merit. In other cases, the agency has lost on summary judgment, 

has been severely criticized by the courts. 

From your position, having consulted with an EEOC Commissioner, should Congress be concerned about these outcomes or do 

you consider them to be the normal course of business in an agency 

authorized to enforce federal laws and litigation? 

Mr. KEHOE. Chairman WALBERG, thank you for that question. 

Of course Congress should be concerned. Congress has given a budget of $360 million to the EEOC to go eradicate discrimination, 

and on many of its large cases the EEOC is, to put it in Monopoly 

words, failing to get past go because they can’t even establish a 

prima facie case of discrimination. 

The EEOC has immense subpoena power to get this information 

before filing any sort of litigation, and while no one would expect 

the EEOC to bat 1,000 on all of its cases, the troubling trend—and, 

you know, if it were only one or two cases then maybe Congress 

should be less concerned, but there are dozens of cases where the 

EEOC has been sanctioned and had their cases thrown out of 

court—— 

Chairman WALBERG. Would the Commissioners’ involvement in 

overseeing some of these cases and looking into them beforehand— 

before moving forward be helpful for the general counsel? 

Mr. KEHOE. Having Commissioner review adds another layer of 

oversight—a layer of oversight to the regional attorneys who want 

to bring the case, a layer of oversight to the general counsel who 

signs all the filings. It absolutely has the potential to ensure that 

better cases are being brought. 

The review period for Commissioners allows Commissioners to 

ask questions. The issue is on many cases that are filed by the 

EEOC, the Commissioners find out by press release or social 

media. They are not even involved. 

And I think the issue of when making policy through litigation 

comes up, at the end of the day the general counsel is not the agency’s policymaker; he is just the litigator—any general counsel. 

Chairman WALBERG. Thank you. 

My time is expired. 

I now recognize the ranking member of this subcommittee, Ms. 

Wilson, the gentlelady from Florida. 

Ms. WILSON. Thank you, Mr. Chair. 

And thank you, to the Committee. I enjoyed listening to your testimony. 

I have a question first for Ms. Clay House. This year is the 50th 

anniversary of the EEOC opening its doors. Now, these are three 

questions. 

Do you believe that the EEOC’s mission is as relevant today as 

it was 50 years ago? What do you believe are the most pressing 

and emerging forms of discrimination that merits the EEOC’s attention? And could you please share your views on some of the 

challenges that face the EEOC? 

Ms. HOUSE. Thank you for those—that three-part question. 

You are right, it is 50 years since the opening of the doors of the 

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ed, we still face enormous discrimination within the employment. 

And if that was not the case, we would not have upwards of 90,000 

to 100,000 claims that have been—that are continually submitted 

to the EEOC—complaints of discrimination. 

I think that some of the most pressing issues that we are facing 

today are with regard to what we have spoken about already—the 

criminal and credit history checks. I think that is particularly important because we are right now dealing with an economy that 

has—had been failing but is on the upward swing. 

However, as a result of that failure, we have millions of people 

who have had their credit history affected; we have those that have 

criminal background checks; we have one in four African-American 

men that are—have been in prison or are in prison at this point 

in time, and therefore have criminal background history. 

And if we are summarily eliminating—prohibiting—all of those 

individuals that have bad credit or a prior conviction from the employment sector, we are eliminating millions of people from the 

work—from the economy. And that is not good for anyone, and I 

would hope that that is not something that any of these—any of 

the members of Congress here would advocate here today. 

With regard to the challenges, I think that we need to look at 

a number of issues, particularly the hiring practice, as I said, of 

employers right now. We need to consider the pay disparities that 

exist—continue to exist between men and women, as well as people 

with disabilities. 

And I think that we need to consider and look at the implicit 

bias that continues to exist, particularly when you are talking 

about the same and similarly situated resumes that are submitted 

to employers, yet with a different name—one that might be more 

ethnically diverse. And you have instances where that resume with 

a more ethnically diverse name would be eliminated or excluded. 

And that type of implicit bias is very—has been prevalent, as we 

are seeing, not only in the employment sector but other sectors, as 

well. 

Ms. WILSON. Thank you. 

This question is for Ms. Heriot. 

Ms. Heriot, I have a long background in helping African-American boys and men achieve their status in life, and there is a real 

problem with the school-to-prison pipeline. So my concern has to do 

that in 100 cities and counties and 14 states they have adopted the 

Ban the Box policies because they realize that our criminal justice 

system is biased and that the people of color are disproportionately 

institutionalized and arrested and harassed. 

So I want to ask you, if cities and counties are trying to ban the 

box, why do you think the EEOC is overreaching? 

Ms. HERIOT. Well, I think that employers, like cities and counties, should have the option to ban the box, and that is perfectly 

acceptable. And many employers would ban the box, as well—many 

private employers. 

I think the federal tax deduction that allows employers to make 

the choice to hire someone who they know is an ex-offender is an 

excellent program. But the notion that the private employers 

should be coerced in this way I think is a big mistake. 


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There are many jobs for which it makes perfect sense for an employer to decide this is not, you know, a situation where I want to 

take a chance on an ex-offender. And nobody is in a better position 

to make that decision than the employer itself. 

If the EEOC is in a position to second guess them, then what is 

going to happen is that employers will bend over backwards to 

avoid the possibility that they will be brought into an EEOC lawsuit. And when that happens, you know, tragedies are going to 

ensue. 

It is not always appropriate to hire an ex-offender in a job. Jobs 

that involve visits to private citizens’ homes; jobs involving, say, 

nursing homes; schools—that is not a good place to put an ex-offender in every case. 

There are exceptions. But the best person to make the judgment 

about when that exception has come up is not the EEOC, but rather, the employer, because the employer knows the job and the employer often knows something about the ex-offender that the EEOC 

does not know. It is not always possible to govern these things inside the beltway, as it were. 

Chairman WALBERG. Thank you. 

The gentlelady’s time has expired. 

I now recognize the gentleman from Virginia, Mr. Brat. 

Mr. BRAT. Thank you, to all that are with us today, for your testimony. 

I taught economic justice for the last 18 years at RandolphMacon College and so I think it is the intent of everyone here, and 

the—sometimes the partisan hyperbole goes a little overboard, but 

I think everyone here is in favor of justice for everybody and equal 

treatment under the law for everybody. And so I applaud all of you 

for your statements. I think it just comes down to kind of common 

sense and where the pendulum is. 

And so I think you have all done an outstanding job today, of 

showing us that it looks like the—previous comments just offered 

up—the EEOC is overreaching in some cases, or the employer is 

the better judge of what should be taking place. And at the same 

time, we don’t—our justice system allows for individuals under law 

to contest that. 

And so I don’t have much more to add beyond what our panelists 

today have offered up. 

Thank you very much for being with us. 

I yield back, Mr. Chairman—my time back to the Chairman, yes. 

Chairman WALBERG. Thank you. Thank you for yielding your 

time. It is always good to get time from a professor. 

And I appreciate that because I have a couple more questions I 

would like to try to get in here. 

Mr. Kehoe, the Supreme Court has granted review in Mach Mining v. EEOC to decide whether the agency’s statutory duty to conciliate must be performed in good faith and is subject to judicial review. Why is it important, from your perspective and your placement with EEOC before this, for courts to be able to review 

EEOC’s conciliation efforts? 

Mr. KEHOE. Thank you for that question. 

I think the most important reason for courts to be able to review 

whether the EEOC complies with its statutory mandate is because 


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it is a statutory mandate. Title 7 requires the EEOC to conciliate 

because the goal of the employment discrimination laws is to reach 

a settlement prior to actually filing litigation. 

For 40 years courts have reviewed whether or not the EEOC has 

complied with its conciliation requirements. Congress, in the 1972 

amendments to Title 7, considered whether to exempt the EEOC’s 

conciliation requirements from judicial review. 

They reviewed a bill; they didn’t enact that bill. So it is pretty 

clear that congressional intent requires the EEOC to conciliate in 

good faith, because here is the situation—— 

Chairman WALBERG. Have they consistently abused that process 

of conciliation? 

Mr. KEHOE. Well, there have been several cases that have been 

thrown out of court for failure to conciliate. The biggest one is 

EEOC v. CRST. 

The court had awarded $4.7 million in damages, and though that 

award has been remanded by the 8th Circuit back to the trial 

court, at the end of the day, in CRST the EEOC spent 10 years 

investigating and litigating, brought a huge class case for 154 

women who were allegedly sexually harassed, and they settled the 

case after just about 10 years for $50,000 after 153 women who 

claimed they were sexually harassed were left out in the cold because the EEOC didn’t follow the rules. 

Chairman WALBERG. Let me move on to another case. In the 

U.S. Steel case, EEOC alleged that random drug and alcohol testing, as agreed to in the collective bargaining agreement entered 

into by U.S. Steel and the Steelworkers Union, violated the Americans with Disabilities Act. 

The policy applied to very dangerous jobs where following safety 

rules were critically important. I worked for U.S. Steel on some of 

those same dangerous jobs myself as a U.S. Steel—Steelworkers 

Union member. 

Predictably, the court held the policy was job-related and consistent with business necessity, dismissing the case on summary 

judgment. 

Clearly this was not a good case either. Why would EEOC bring 

such a case, and what does it say about the EEOC and how it decides to file lawsuits? 

Mr. KEHOE. Well, I think specifically with U.S. Steel, the first 

point of order would be that was one of those cases where a good 

amount of Commissioners found out about the case via a press release. That case was brought essentially—the policy that U.S. Steel 

had implemented essentially said: for probationary employees, you 

can’t show up to work drunk at the steel mill. 

And the EEOC decided that that was a violation of the ADA to 

do random alcohol testing. Now, it would stand to reason that any 

sort of safety policy that requires people in steel mills to show up 

to work sober would clearly be job-related. 

Chairman WALBERG. My time is expired, and I think that punctuates it. 

I now recognize the gentleman from Wisconsin, Mr. Pocan. 

Mr. POCAN. Thank you, Mr. Chairman. 

And thank you, to the witnesses. 


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I am going to comment, and I got the feeling I am going to be 

doing this every subcommittee. We did a good job of lawyering up 

again; we have got a lot of lawyers on the panel. It would be nice 

maybe to have some of the small business owners who are affected. 

We are going to have to change the name of the committee pretty 

soon to Education and Workforce via the Judicial System at the 

rate we are going. But we do have a lot of lawyers—— 

Chairman WALBERG. I would just for the record say the business 

owners are afraid of being sued so they send their attorneys. 

Mr. POCAN. Yes, but that is sometimes why we get the creative 

answers that we get, and sometimes I would much rather have 

things—coming from—being a small business owner for 28 years 

and not being a lawyer, I guess maybe that is the realm I deal 

with. And since it is going to affect the business, I would like to 

have it from that. 

Let me ask Ms. Heriot just a quick question. 

Do you view the EEOC’s arrest and conviction guidance as a radical departure in enforcement? 

Ms. HERIOT. Back a few years ago—quite a few years ago, during—mostly during the Carter administration, this was kind of a 

hot issue, what to do about criminal background checks and such. 

And there were a few cases a little bit before that, as well. And it 

was very hot at the time. 

And then the EEOC started backing away from the policies at 

that point. For example, the policy that someone mentioned today 

about—that involved Clarence Thomas was actually moving back— 

cutting back on the policy, not putting it forward. 

So there is a history. But the April 2012 guidance goes much further in several ways. It basically returns that issue—to that issue 

with kind of a vengeance, I would say. 

First of all, it states that even if there is a state or local law that 

requires a background check and requires that employers refuse to 

hire—— 

Mr. POCAN. If I can reclaim my time—and this is the problem I 

have. No offense. I know you are a law professor but, you know, 

the answer was—usually falls in the yes or no sort of realm—— 

Ms. HERIOT. But it can’t. I mean, the answers don’t really do 

that. That is why I came here. 

But at any rate, it does—— 

Mr. Pocan. I reclaimed my time. I am sorry, ma’am. Please let 

me finish. 

So what I was trying to ask you, and which you did your best 

to dance around, was that this is the policy in place since I believe 

it is 1987 when then Commissioner—and you mentioned Clarence 

Thomas was there, so—— 

Ms. HERIOT. No. 

Mr. POCAN. Well, it is. It is exactly what it is. 

So let me do this. Let me ask the question—in Madison, Wisconsin we recently had a shooting of a young African-American 

male, 19. Brought up a lot of issues around—we have eight times 

the arrest record of African-American males in Madison area, twice 

the state incarceration of African-American males. 

Clearly this affects employment. I recently went to the job center 

in Dayton County and we met with people who are chronically emVerDate Sep 11 2014 02:54 Nov 04, 2016 Jkt 093815 PO 00000 Frm 00102 Fmt 6633 Sfmt 6602 E:\HR\OC\A815.XXX A815

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ployed; 70 to 75 percent of the people who we met with had a felony on their record. 

That is the real problem. You can have all the legal talk—and 

by the way, you do get the point for the most creative answer of 

saying jobs will be exported overseas because of this. It is going in 

my little board back in the office, because that was beyond amazing 

on creativity. 

But the bottom line is this affects real people. 

And so let me go to Ms. House specifically. You know, I know 

that you like to talk anecdotally through legal cases when we know 

93 percent of the cases EEOC brings to—in federal court is successful, and 82 percent of those that are systemic cases are successful, 

so this little anecdote—governing by anecdote is always very dangerous. 

You brought up a study—a very specific study that said 850,000 

to a million people in this study who had arrest record. Of that 70 

million people 1 percent got hired, versus 30 percent in the other 

pool. Can you just talk a little bit more about that, because that 

is specific and relatable, rather than anecdotal? And if you can do 

it in a succinct, non-lawyerish answer, I would really appreciate it. 

Ms. HOUSE. Sure. Absolutely. 

That is actually an ongoing case that the Lawyers’ Committee is 

in litigation with. And that is a case against the U.S. Census Bureau. 

And the reason that we—I mentioned this is because, well, as 

you said, it is not anecdotal. This is reality. We are talking about 

almost a million people that were summarily excluded from even 

being census workers even though they—most of them had previously been census workers. 

And so, as you properly indicated, we are talking about, you 

know, one—most of those being excluded and being sent to a secondary review, and so therefore, not included in the initial application for the Census Bureau. And I think that that is extremely important to recognize. 

We are in ongoing litigation so I can’t get into more specifics regarding the negotiations and what that will entail, but I do think 

it is particularly relevant. 

Mr. POCAN. I can see the yellow light up, Mr. Chairman. I will 

be cognizant of that. 

But, you know, specifically I think in the testimony that Ms. 

Heriot brought up she talked about, you know, the problem in Virginia, I think in nursing homes. Yet EEOC didn’t file any cases 

against nursing homes for using criminal background checks as a 

basis of employment in Virginia. 

So again, I think what we are finding is often certain people are 

using anecdotes and hyperbole when the reality that I am seeing, 

at least back home in Wisconsin, is that when we have got 70 to 

75 percent of the people who are chronically employed specifically 

with a felony—and I have done this for 28 years. I am a small business owner. I know it is—— 

Ms. HERIOT. Employers can wait until they are sued by the 

EEOC. They have got to—— 

Chairman WALBERG. The gentleman’s time is expired. We will 

move on with the next questioning. 


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And I recognize now the gentlelady from North Carolina, Ms. 

Adams. 

Ms. ADAMS. Thank you, Mr. Chair. 

And thank you all for your testimony. 

Ms. House, during your testimony on the Certainty in Enforcement Act you mentioned that 70 million Americans would automatically be excluded from the employment sector because of criminal background searches, with the greatest impact being felt in the 

African-American community. According to the Crime and Delinquency Journal, by age 23, 49 percent of black males and 44 percent of Hispanic males have been arrested. 

Can you speak to the effect that this legislation would have on 

already high employment rate for African-Americans and Hispanics 

and how it in turn would affect their respective communities? 

Ms. HOUSE. Sure. As I indicated previously, it would exclude a 

great proportion and disproportionately impact, as you indicated, 

African-Americans, communities of color, particularly Hispanics 

and other traditionally disenfranchised. 

And I think that what you are talking about is you are 

disenfranchising people throughout their careers. So essentially, 

because of a arrest—it could be an arrest, because I will say for the 

record that many of the databases that we are—that employers are 

reviewing are including arrests. So you may not have ultimately 

been convicted. 

And so therefore, you do have, as a result of these past arrests 

or convictions that could have happened upwards of 10 to 15 years 

ago, that people are no longer able to obtain good employment, that 

ultimately affects their entire family—not only just them, but 

throughout their livelihood. 

Ms. ADAMS. Okay. So what, then, would be the impact on the already high employment rate for African-Americans and Hispanic—— 

Ms. HOUSE. It increases. I mean, you—the unemployment rate 

continues to increase. It does not go down despite any potential job 

creation programs that this administration or other would employ, 

because employers are automatically excluding those that actually—that have an arrest or a conviction record. 

Ms. ADAMS. Okay. Can you touch for a moment on the overcriminalization of people of color in the U.S. and how this bill 

would exacerbate that? 

Ms. HOUSE. Well, I think that this bill, as I—it codifies the 

stereotype that those that have a prior arrest record or conviction 

are therefore unemployable and not fit to engage in the American 

dream and provide for their families. It is a stereotype; it is a bias. 

And I—I have heard that. We continue to hear that throughout 

many of those who oppose the guidance. 

But I will say that there are a variety of research material that 

indicates that, in fact, those that have prior convictions or arrest 

records over 10 years are no more likely to commit another crime 

than someone of that same age without a previous arrest or a conviction record. 

Ms. ADAMS. Okay. People of color more often than not have poor 

credit because of past forms of discrimination and limit education 

or employment, borrowing, and housing opportunities. This is espeVerDate Sep 11 2014 02:54 Nov 04, 2016 Jkt 093815 PO 00000 Frm 00104 Fmt 6633 Sfmt 6602 E:\HR\OC\A815.XXX A815

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cially alarming in the African-American community, where only 25 

percent of households have a credit score of about 700. 

So how can the use of someone’s credit score—credit history perpetuate extended unemployment and poverty? 

Ms. HOUSE. Sure. Currently, because we are still awaiting further guidance on how employers will properly—or how they should 

properly utilize credit history checks, what it does—what is happening right now is that, similar to criminal background checks, 

employers are using credit checks without properly understanding 

exactly what is the rationale for people’s bad history. They are 

using that as a similar type of exclusionary policy to be employed 

with certain positions. 

So, for example, someone’s credit could be detrimentally affected 

by a medical procedure or by—as a result of prior inability to pay 

for hospital bills after they were sick or their family member was 

sick. However, that, because it does detrimentally affect their credit, they are therefore excluded from potentially additional employment, say, within a bank because they have bad credit. And there 

is no individualized assessment given to them with regard to 

whether or not this is, in fact, a related or a proper use of a credit 

history check. 

Ms. ADAMS. Thank you. 

Mr. Chairman, I yield back. 

Chairman WALBERG. I thank the gentlelady. 

Now I recognize the gentleman from California, Mr. DeSaulnier. 

Mr. DESAULNIER. Thank you, Mr. Chairman. 

And like my friend from Wisconsin, I struggle with being a 

small—former small business owner who was going to go to law 

school and chose not to and continued to follow that choice. And I 

appreciate the Chairman’s comments as well, as being a small employer who worried about lawyering up. 

So my questions are about an issue that I spent a good deal of 

time on in the California legislature and with a constituent who 

was a longtime chairman of Safeway and tried to do employee 

wellness programs, but he did that through the meet and confer 

process for all of his non-management folks. So while I believe that 

there is evidence that obviously wellness programs are good for everybody, they help to control costs. 

But I also believe, as a former employer, that sometimes—to sort 

of borrow what Professor Heriot said—that although you can’t 

mandate from the beltway, sometimes—oftentimes managing people you try to do it collaboratively and—rather than force them to 

do things. 

So the question is to Ms. House to begin with. The Genetic Information Nondiscrimination Act made sure that wellness programs 

and that information were given up voluntarily. The Preserving 

Employee Wellness Programs Act that Congress currently is considering overrides the GINA provision that requires that participation 

in wellness programs are voluntary. 

So much of this is being defined in the court system right now. 

Is that not true, in—— 

Ms. HOUSE. I am sorry. I couldn’t hear that last—— 

Mr. DESAULNIER. In terms of the decision of whether it is voluntary to ask for these—this information or not, there are court 


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cases, are there not, right now, that may or may not help us determine that? 

Ms. HOUSE. Yes. There is ongoing litigation. I don’t have at my 

disposal all of that case law to present to you. I can provide that 

for you after this hearing is finished. 

But yes, I mean, there continues to be ongoing litigation, and I 

think that we need to—that is something that continually needs to 

be assessed, but the primary focus should be voluntary—— 

Mr. DESAULNIER. Right. 

Ms. HOUSE [continuing]. That this is not something that should 

be forced upon an employee and that ultimately create a situation 

where they are providing unnecessary information that would detrimentally affect their ability to obtain proper insurance. 

Mr. DESAULNIER. And it is my understanding that the research 

so far, although it is not conclusive, is that these decisions are best 

made between an individual and their doctor. Is that not true? 

Ms. HOUSE. I would submit that, yes, but I will say that I am 

not as well versed on some of the documentation with regard to the 

wellness programs so I don’t want to give you misinformation. But 

yes, I mean, that is reasonable, yes. 

Mr. DESAULNIER. Anyone else care to comment on the panel— 

anyone with more expertise or a different opinion? 

Ms. SIMON. Well, actually, if you don’t mind, I wouldn’t mind 

commenting a little bit on your question about voluntariness. 

Mr. DESAULNIER. Yes. 

Ms. SIMON. You know, I think that we understand the term ‘‘voluntary,’’ as used, certainly, in the medical examination and disability inquiry provisions. I think that the first question to ask is, 

does the provision, under the ADA and also when we are talking 

about GINA, allow voluntary to first have a dollar figure attached 

to it, which seems to be one of the first issues that we hear about 

in the employer community. 

And the answer to that question was actually answered in GINA 

guidance, where the EEOC shows how an HRA can legally ask 

about health conditions and offer a $150 incentive so long as the 

questions related to family medical history aren’t required to be answered to receive the financial inducement. The quote is: ‘‘We have 

concluded that covered entities may offer certain kinds of financial 

inducement to encourage participation in health services under certain circumstances.’’ 

So first, with respect to voluntariness, we know that a financial 

incentive would probably be okay. So then the next question is, 

how much? 

Mr. DESAULNIER. Excuse me. 

Ms. SIMON. Yes. 

Mr. DESAULNIER. That is under existing law. 

Ms. SIMON. Yes. Yes. And I can give you citations for the record 

if you would like. 

So the next question is, how much of a financial incentive would 

be okay for the incentive to be considered voluntary, because clearly the $150 figure was just illustrative. And to that we can again 

turn to other agencies and your congressional intent and point to 

the 30 and 50 percent rule under HIPAA. 

Even though the HIPAA rule doesn’t actually use the word—— 


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Mr. DESAULNIER. I am going to jump in here and stop you before 

the red light goes on. 

So my comment would be that all of that is consistent with the 

current law, so—— 

Ms. SIMON. That is absolutely correct. 

Mr. DESAULNIER [continuing]. I would just conclude is, what is 

the necessity of the new proposal to change that? 

Thank you, Mr. Chairman. 

Chairman WALBERG. I thank the gentleman. 

And I thank the witnesses for your attention to our questions 

and responses. 

And before we go to closing comments, for the record I would like 

to submit a number of letters that were supplied to us on this issue 

expressing their concerns, their ideas, from business groups, child 

care groups, et cetera, that would be good to have in our record. 

[The information follows:] 


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Chairman WALBERG. Hearing no objection, they will be submitted. 

I now recognize the gentlelady from Florida, the Ranking Member, Ms. Wilson. 

Ms. WILSON. Thank you, Mr. Chair. 

In closing, I would like to thank, once again, all of our witnesses 

for coming. 

And I would like to highlight the majority’s attempt to roll back 

a body of laws that have helped protect American workers from 

race, sex, age, and disability-based discrimination for over 50 years. 

Fifty years; that is a long time. 

The bills we have discussed today would dramatically limit the 

effectiveness of the EEOC and leave millions of workers vulnerable 

to an employer’s abuse of power and discrimination. 

As I mentioned in my opening statement, the name of our subcommittee is Workforce Protections. These bills will essentially undermine the clear and apparent purpose of our subcommittee, 

which is to provide a safe and amicable working environment for 

American workers and ensure that employers engage in fair and 

equitable hiring practices. 

All of the detailed postings reporting requirements and H.R. 550 

seem to be designed to keep lawyers with a job, to keep fighting 

lawsuits. Where—tell me where does the average worker who really doesn’t want to go to court but wants to do his or her job without 

experiencing discrimination go to get justice? 

You are creating roadblocks by making the EEOC too busy posting things up online, taking notes on cases, getting certified to do 

conciliation. None of these bills specifically empower the average 

worker to be protected from discrimination. There are so many 

roadblocks. 

As the EEOC won 93 percent of cases in federal court and 82 

percent of systemic cases, 84 percent of the businesses’ owners in 

2014 responding they are complying with the EEOC’s arrest and 

conviction guidance. And there is a big difference between arrest 

and conviction, and that is why we need a Ban the Box policy. 

As members of this subcommittee we should be doing everything 

in our power to support American workers and not be in the business of setting up roadblocks to essential protections from workplace discrimination. 

Again, Mr. Speaker, I respectfully ask that we call another hearing, and this time we want to hear from the EEOC Commissioners 

before moving forward so that we can ensure that these bills will 

not set up unnecessary roadblocks for fair and timely resolution of 

discrimination claims. Remember, we are the Subcommittee on 

Workforce Protections. That is the workers. 

Thank you, and I yield back the rest of my time. 

Chairman WALBERG. I thank the gentlelady. 

And I concur. We are the Subcommittee on Workforce Protections 

and this is our job to do, and we will do it with all due diligence 

as necessary, including the hearings we have or may have in the 

future. 

We are responsible to make sure that the workforce is protected, 

but we want to make sure as well as we—when we do that that 

the places that the workforce work are protected, as well—that we 


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have that symbiotic relationship that says there will be success in 

the workplace because there are successful, safe workers that are 

doing jobs that they are fit and prepared to do. And they are protected against even—should I say unthinking action requirements 

that don’t recognize the reality of the workplace or the workforce. 

To think that there would be a steelworker that would go to 

work drunk in an unsafe situation, like the number two electric 

furnace that I worked at, and be hurt because U.S. Steel would be 

prohibited from doing its due diligence and making sure the person 

meets the needs and the concerns. The fact that we would be putting places—employees in places of work without questioning that 

they physically could not handle because of age, because of disability. 

Even if it is in a restaurant that is high intensity and serves customers from 7 o’clock on, and it takes someone with more stamina 

than me to be—to work in that restaurant. And yet, because of 

laws that don’t deal with flexibility and look at the issue not to discriminate against a person or a class of persons, but understands 

the workplace and wants people to succeed, yes, for the benefit of 

the employer, but also the benefit of the employee as well. 

To think that there is a Commission that has been appointed to 

deal with these issues and make sure that, indeed, employees are 

cared for and that there are suits that are brought against employers for discrimination on basis of law, that there is a 70,000–person 

backlog, or case backlog. 

And yet, we can talk about the success rate of systemic cases, for 

instance. Yet there are relatively few. And sadly, a good number 

of those are being thrown out. And equally as sad, taxpayers are 

footing the bill to pay for the costs of these frivolous suits. 

We have contradictory laws that our employers and employees 

are expected to carry out and live under—both federal and state, 

and state and federal. And even federal and federal, with 

Obamacare versus the Civil Right Act and the Disabilities Act. 

Those are concerns, and that is why we have this hearing. And 

that is why these four bills have been initiated. And that is why 

we are doing due diligence and making sure that these bills attack 

the problem that is there and not something that we are just 

guessing at. 

We want workers to be successful. We want people to be not discriminated against. We want employers to be successful and not 

hindered by laws that go far afield from what they want to do in 

carrying on with their employees, as well. 

So I appreciate the panel today. 

I appreciate my subcommittee members and the diligence that 

you put to this hearing, and we look forward to further movement 

down the road. 

The following opinions were submitted for the record by Ms. Heriot, 

and are included in the committee archive for this hearing: 

[EEOC v. Freeman, 778 F. Supp. 3d 463 (4th Cir. 2015)] 

[EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013)] 

[EEOC v. Peoplemark, Inc., 732 F. 3d 584 (6th Cir. 2013)] 

[EEOC v. Peoplemark, Inc., No. 1:08–cv–907, 2011 U.S. Dist. 

LEXIS 38696 (W.D. Mich. Mar. 31, 2011)] 


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Without further agenda before this subcommittee, I declare it adjourned. 

[Additional submissions by Chairman Kline follows:] 

[Whereupon, at 11:28 a.m., the subcommittee was adjourned.] 


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[Additional submission by Mr. Roe follows:] 


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[Additional submission by Ms. Wilson follows:] 


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