U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

88–194 PDF 2015

THE REGULATORY AND 

ENFORCEMENT PRIORITIES OF 

THE EEOC: EXAMINING THE 

CONCERNS OF STAKEHOLDERS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, JUNE 10, 2014 

Serial No. 113–59 

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 

CEWDOCROOM with DISTILLER

(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Tom Price, Georgia 

Kenny Marchant, Texas 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Mike Kelly, Pennsylvania 

Susan W. Brooks, Indiana 

Richard Hudson, North Carolina 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

George Miller, California, 

Senior Democratic Member 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Rush Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

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 

Juliane Sullivan, Staff Director 

Megan O’Reilly, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

John Kline, Minnesota 

Tom Price, Georgia 

Duncan Hunter, California 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Richard Hudson, North Carolina 

Joe Courtney, Connecticut, 

Ranking Member 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Marcia L. Fudge, Ohio 

Mark Pocan, Wisconsin 

Mark Takano, California 

CEWDOCROOM with DISTILLER

(III) 

C O N T E N T S 

Page 

Hearing held on June 10, 2014 ............................................................................... 1 

Statement of Members: 

Courtney, Hon. Joe, Ranking member, Subcommittee on Workforce Protections ........................................................................................................... 4 

Prepared statement of ............................................................................... 5 

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

Prepared statement of ............................................................................... 3 

Statement of Witnesses: 

Bone, Lucia, Partner, Founder, The Sue Weaver C.A.U.S.E., Flower 

Mound, TX ..................................................................................................... 73 

Prepared statement of ............................................................................... 75 

Ifill, Sherrilyn, President and Director-Counsel, NAACP Legal Defense 

and Educational Fund, New York, NY ........................................................ 62 

Prepared statement of ............................................................................... 64 

McCracken, Todd, President, Normal Small Business Association, Washington, DC ..................................................................................................... 54 

Prepared statement of ............................................................................... 56 

Olson, Camille, Partner, Seyfarth Shaw LLP, Chicago, IL .......................... 7 

Prepared statement of ............................................................................... 10 

Additional Submissions: 

Mr. Courtney: 

Prepared statement of Equal Employment Opportunity Commission .. 82 

EEOC Sues Less, but Tactics Draw Flak ................................................ 217 

LAW360 ’EEOC Overreach’ Analysis Distorted The Record ................. 229 

Ms Olson: 

Prepared Statement of .............................................................................. 236 

Chairman Walberg: 

Letter dated June 13, 2014, from Fishman, Nick, Executive Vice 

President,Chief Marketing Officer, Employee Screen IQ ................... 257 

Letter dated June 24, 2014, from Gootkind, Judith, A., Chair, National Association of Professional Background Screeners .................. 259 

Letter dated June 18, 2014, from Lipnic, Victoria, A., Commissioner, 

U.S. Equal Employment Opportunity Commissioner ......................... 265 

Letter dated June 24, 2014, from Nichols, R., Leslie, National Vice 

President, Child and Club Safety, Boys & Girls Clubs of America ... 271 

CEWDOCROOM with DISTILLER

CEWDOCROOM with DISTILLER

(1) 

THE REGULATORY AND 

ENFORCEMENT PRIORITIES OF 

THE EEOC: EXAMINING THE 

CONCERNS OF STAKEHOLDERS 

Tuesday, June 10, 2014 

House of Representatives, 

Subcommittee on Workforce Protections, 

Committee on Education and the Workforce, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 10:01 a.m., in Room 

2175, Rayburn House Office Building, Hon. Tim Walberg [chairman of the subcommittee] presiding. 

Present: Representatives Walberg, Kline, Rokita, Hudson, Courtney, and Takano. 

Staff present: Molly Conway, Professional Staff Member; Ed 

Gilroy, Director of Workforce Policy; Christie Herman, Professional 

Staff Member; Benjamin Hoog, Senior Legislative Assistant; 

Marvin Kaplan, Workforce Policy Counsel; Nancy Locke, Chief 

Clerk; James Martin, Professional Staff Member; Zachary 

McHenry, Senior Staff Assistant; Daniel Murner, Press Assistant; 

Brian Newell, Communications Director; Krisann Pearce, General 

Counsel; Alissa Strawcutter, Deputy Clerk; Loren Sweatt, Senior 

Policy Advisor; Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; Melissa Greenberg, Minority Labor Policy Associate; Eunice Ikene, Minority Labor Policy Associate; Brian Kennedy, Minority General Counsel; Leticia Mederos, Minority Director of Labor 

Policy; Richard Miller, Minority Senior Labor Policy Advisor; 

Megan O’Reilly, Minority Staff Director; and Michael Zola, Minority Deputy Staff Director. 

Chairman WALBERG. A quorum being present, the subcommittee 

will come to order. Good morning. I would like to welcome our 

guests and thank our witnesses for joining us today. We appreciate 

the time you have spared to be with us this morning. Today’s hearing is part of our continued oversight of the Equal Employment Opportunity Commission. 

Last year, we convened a hearing to broadly examine the Commission’s regulatory and enforcement agenda. Members raised concerns with a number of EEOC policies that many believe are not 

in the best interest of workers and employers. For example, under 

President Obama’s watch, EEOC has made it more difficult for employers to ensure the safety of their customers and clients. SoCEWDOCROOM with DISTILLER

2 

called guidance issued in 2012 severely restricts employer use of 

criminal background checks during the hiring process. 

All Americans expect employers to hire a safe and responsible 

workforce, especially when workers are employed in areas that require the public’s trust, such as when they enter private homes, 

transport children to school, or care for aging relatives. Later, we 

will learn in disturbing detail why, in certain occupations, the 

background check of prospective employees is critical to public safety. 

Ms. Bone, we are grateful that you have joined us this morning 

to share your family’s personal story. The death of your sister, Sue, 

could have been prevented. We cannot fathom the pain you and 

your family are forced to bear. There isn’t a member in Congress 

who wouldn’t be outraged if his or her loved ones suffered the same 

fate as your sister. But because of EEOC overreach, there are now 

policies in place making it harder for employers to do what is right. 

Some employers will simply avoid the bureaucratic hassle of conducting background checks or risk of being second-guessed by the 

federal government, which means more Americans might be put in 

harm’s way. 

Adding insult to injury, EEOC denied the public an opportunity 

to comment on its radical change in policy. And we understand the 

commission is considering further guidance that would hinder employers’ ability to look at the credit histories of prospective employees. 

It is time for EEOC to stop this nonsense, withdraw its flawed 

guidance, and ensure employers use the tools available to protect 

the men and women they serve. Unfortunately, misguided regulatory schemes weren’t the only concerns raised at our last EEOC 

hearing. We also discussed the commission’s failed approach to enforcement. 

Instead of commission members working together to resolve 

claims of discrimination raised by American workers, we have an 

unaccountable general counsel pursuing cases of systemic discrimination without any allegation of wrongdoing. The results have been 

disappointing, to say the least. The 6th Circuit Court of Appeals recently wrote, and I quote—‘‘EEOC brought this case on the basis 

of a homemade methodology crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted 

only by the witness himself.’’ 

Another federal court described an EEOC case as, and I quote 

again—‘‘theory in search of facts to support it.’’ Other courts have 

found EEOC legal complaints as frivolous, unreasonable, and untenable. Last year, we raised these and other concerns to Commission Chair Berrien and urged her to change course. Unfortunately, 

our concerns continue to be ignored. I am hopeful that through today’s hearing and our oversight of EEOC, the commission will 

adopt a more responsible approach that better serves the needs of 

workers and employers. 

We are here today because we want to ensure these vital laws 

and the protections they provide American workers are properly 

enforced. Every American deserves a fair shot at finding a job, regardless of age, disability, sex, religion, or race. When they are deCEWDOCROOM with DISTILLER

3 

nied that fair shot, workers rely upon EEOC to make it right and 

hold bad actors accountable. That is the mission of this important 

agency, and it is our responsibility to make sure EEOC is getting 

the job done. Again, I want to thank our witnesses for joining us 

and for contributing to this important effort this morning. 

With that, I will now yield to senior Democrat of the committee, 

my colleague, Representative Joe Courtney, for his opening remarks. 

[The statement of Chairman Walberg follows:] 

Prepared Statement of Hon. Tim Walberg, Chairman, Subcommittee on 

Workforce Protections 

Good morning. I would like to welcome our guests and thank our witnesses for 

joining us. We appreciate the time you’ve spared to be with us this morning. 

Today’s hearing is part of our continued oversight of the Equal Employment Opportunity Commission. Last year we convened a hearing to broadly examine the 

commission’s regulatory and enforcement agenda. Members raised concerns with a 

number of EEOC policies that many believe are not in the best interest of workers 

and employers. 

For example, under President Obama’s watch, EEOC has made it more difficult 

for employers to ensure the safety of their customers and clients. So-called guidance 

issued in 2012 severely restricts employer use of criminal background checks during 

the hiring process. All Americans expect employers to hire a safe and responsible 

workforce, especially when workers are employed in areas that require the public’s 

trust, such as when they enter private homes, transport children to school, or care 

for aging relatives. 

Later we will learn in disturbing detail why in certain occupations a background 

check of prospective employees is critical to public safety. Mrs. Bone, we are grateful 

you’ve joined us this morning to share your family’s personal story. The death of 

your sister Sue could have been prevented. We cannot fathom the pain you and your 

family are forced to bear. 

There isn’t a member in Congress who wouldn’t be outraged if his or her loved 

one suffered the same fate as your sister. But because of EEOC overreach, there 

are now policies in place making it harder for employers to do what is right. Some 

employers will simply avoid the bureaucratic hassle of conducting background 

checks or the risk of being second-guessed by the federal government, which means 

more Americans might be put in harm’s way. 

Adding insult to injury, EEOC denied the public an opportunity to comment on 

its radical change in policy. And we understand the commission is considering further guidance that would hinder employers’ ability to look at the credit histories of 

prospective employees. It is time for EEOC to stop this nonsense, withdraw its 

flawed guidance, and ensure employers use the tools available to protect the men 

and women they serve. 

Unfortunately, misguided regulatory schemes weren’t the only concerns raised at 

our last EEOC hearing. We also discussed the commission’s failed approach to enforcement. Instead of commission members working together to resolve claims of 

discrimination raised by American workers, we have an unaccountable general 

counsel pursuing cases of systemic discrimination without any allegation of wrongdoing. The results have been disappointing to say the least. 

The Sixth Circuit Court of Appeals recently wrote, ‘‘EEOC brought this case on 

the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.’’ Another federal 

court described an EEOC case as a ‘‘theory in search of facts to support it.’’ Other 

courts have found EEOC legal complaints as frivolous, unreasonable, and untenable. 

Last year, we raised these and other concerns to Commission Chair Berrien and 

urged her to change course. Unfortunately, our concerns continue to be ignored. I 

am hopeful that through today’s hearing and our oversight of EEOC, the commission will adopt a more responsible approach that better serves the needs of workers 

and employers. 

We are here today because we want to ensure these vital laws – and the protections they provide American workers – are properly enforced. Every American deserves a fair shot at finding a job – regardless of age, disability, sex, religion, or 

race. When they are denied that fair shot, workers rely upon EEOC to make it right 

CEWDOCROOM with DISTILLER

4 

and hold bad actors accountable. That is the mission of this important agency, and 

it’s our responsibility to make sure EEOC is getting the job done. 

Again, I want to thank our witnesses for joining us and for contributing to this 

important effort. With that, I will now yield to the senior Democrat of the subcommittee, my colleague Representative Joe Courtney, for his opening remarks. 

Mr. COURTNEY. Thank you, Mr. Chairman, for the opportunity to 

address the committee. And, again, I want to begin by thanking the 

witnesses for being here this morning. Particularly, again, as the 

Chairman, Ms. Bone, for your amazing courage to take a horrible 

tragedy and really try and turn it into a positive outcome in terms 

of educating the public and, certainly, people who are close to the 

workplace. So thank you for being here today. 

I have to say, though, I am a little disappointed, Mr. Chairman, 

that, you know, in the name of oversight we are holding a hearing 

today, you know—and we heard sort of some of the opening flavor 

of this hearing, where the majority, for some reason, didn’t feel 

that it was appropriate to invite the agency itself to come here and 

actually directly address the questions that are being raised this 

morning. It is true we had a hearing last year with the chairwoman who, again, had pretty much taken over just recently. 

If there are concerns that members want to raise I totally support the fact that we should have these types of questions exchanged. But the problem is, is if you don’t have the agency here 

to answer them, then I really am very puzzled at why we think 

this is somehow going to benefit the process. We have about 50 

days left in this Congress which, again, is going to go down in history as one of the least productive congresses ever. The Do Nothing 

Congress of Harry Truman passed over 400 pieces of legislation. 

We barely got over the 100 mark in terms of measures that are 

going to get passed. 

And, again, I have no problem with spending the time here this 

morning. But frankly, there are other issues which this subcommittee should be taking up that directly fall under our jurisdiction. Such as the fact that we have not raised the minimum wage 

since 2007. We have over 190 House members that have signed a 

discharge petition to just simply ask for a vote in the House. We 

have not even had a hearing on this issue in this subcommittee. 

So yes, let’s hold this hearing today. Let’s flush out all the issues. 

But let’s talk about other issues that members—your colleagues 

that are elected to represent their constituents—have been desperately pleading to have consideration. I see Ms. Olson here today 

from the U.S. Chamber of Commerce. A week ago last Friday I addressed the eastern Connecticut Chamber of Commerce, which is 

an affiliate of the Chamber. We have large companies like General 

Dynamics and Pfizer, small startups that are part of it. The number one workforce issue that they asked me is why has the House 

not taken up the bipartisan immigration reform issue. 

Why are we still holding back the U.S. economy, which CBO has 

told us will grow if we pass the bipartisan Senate bill, cut the deficit, and solve tremendous workforce shortages in areas of hospitality, agriculture, in terms of some high-tech sectors of our economy; the pharmaceutical industry, which is, you know, very prevalent in the state of Connecticut. Again, 192 members of the House 

have signed a discharge petition to bring up that bill, and we have 

CEWDOCROOM with DISTILLER

5 

not even had a hearing on the House in the last year-and-a-half; 

not one on that issue. 

So yes, let’s hold this hearing today. Let’s talk about these 

issues. But the fact of the matter is, is this majority has cut off 

consideration of issues that directly affect working people in working families in terms of raising their wages for the first time in 7 

years; helping employers deal with workforce shortages that the 

Immigration Reform Bill would directly address. And, again, the 

Chamber has been very strong in terms of saying that we should 

do this for the benefit of your members and for the country as a 

whole. 

And as long as we are talking about background checks, I come 

from Connecticut, okay? Which is where the Sandy Hook shooting 

took place a year ago last December. We have a background check 

system that law enforcement has told us is broken in terms of people getting access to firearms who do not—who should not get that 

access because they do have felony records, they do have mental illness, they have conditions which we should be strengthening and 

systems that we should be strengthening to make sure that yes, we 

should have customers safe but we also should have the public 

safe. 

We should have schoolchildren safe in this country. And, again, 

we have not had a single hearing in this Congress to deal with 

background checks for an issue which 80 percent of the public supports. So yes, let’s have this hearing today and we will flush out 

these issues and talk about it. But, again, I would plead with the 

chairman that we should a) on this committee, take up issues that 

your colleagues have asked for consideration in terms of minimum 

wage. 

That your leadership should take up immigration reform now so 

that we can help grow this economy. 

And for the sake of all victims of violence in this country we 

should strengthen background checks for the purchase and acquisition and ownership of dangerous firearms. 

I yield back the balance of my time. 

[The statement of Mr. Courtney follows:] 

Prepared Statement of Hon. Joe Courtney, Senior Democratic Member, 

Subcommittee on Workforce Protections 

Good morning. I want to thank Chairman Walberg for calling today’s hearing to 

examine the important work of the Equal Employment Opportunity Commission. 

I also want to thank the witnesses for being here this morning to testify on civil 

rights and the efforts of the EEOC. 

As we go through the day’s proceedings, I’d be remiss if I didn’t note that we just 

celebrated the 50th Anniversary of the Civil Rights Act of 1964, which ushered in 

an era of significant opportunity and change. 

The following year, 1965, the EEOC opened its doors, charged with the mission 

of ending employment discrimination through enforcement of the nation’s equal employment opportunity laws. 

The work of the EEOC remains as critical today as it was five decades ago, particularly when we look to the challenges facing the unemployed in our nation. 

The economy has improved drastically since the depths of the recession. Last 

month, the overall unemployment rate stabilized at 6.3 percent. While this is still 

unacceptably high, the unemployment rate for minorities is even more appalling: 

11.5 percent of African Americans and 7.7 percent of Hispanics in this country were 

out of work as of May. 

And we know, as labor economists and experts point to, discrimination remains 

one of factors for the disparity. 

CEWDOCROOM with DISTILLER

6 

For those who are skeptical about the mission of the EEOC, I would remind them 

that the EEOC’s work is essential and responds to a serious problem in our country: 

workplace discrimination. 

Every worker in this country—whether a job applicant or employee—has the right 

to be treated fairly in the workplace and judged solely upon his or her ability to 

do the job. 

The foundation of our civil rights laws is to ensure that all Americans have the 

opportunity to participate in and contribute to society, while being able to provide 

for themselves and their families. 

Unfortunately, far too often workers are not hired, paid less or fired from their 

jobs because they are female, or pregnant, or African American, or have a disability. 

The EEOC plays a vital role in ensuring fairness and equal opportunity in the 

workplace. It enforces some of the country’s most important federal laws, ones that 

prohibit discrimination against an employee or job applicant because of that person’s race, color, religion, sex, national origin, age, disability or genetic information. 

Despite these protections, nearly 93,000 new charges of discrimination were filed 

with the EEOC last year. Among those, the EEOC received: 

* over 67,000 Title VII charges, alleging some forms of discrimination based on 

race, color, sex, religion, or national origin. 3,146 of those charges alleged colorbased discrimination; 

* over 300 Genetic Information Nondiscrimination Act (GINA) charges; and 

* 1,019 Equal Pay Act charges; 

And to be clear, the EEOC works diligently to settle many of these cases before 

they reach litigation. As I understand, litigation is always viewed as a last resort 

and is brought in less than 1% of charges with merit. 

But litigation is sometimes necessary to ensuring compliance with our anti-discrimination laws, and to stopping and discouraging unlawful discriminatory practices. 

Congress also has a responsibility to ensure that American workers, should they 

become victims of workplace discrimination, have means of seeking justice. 

Here we are, six months away from the end of the 113th Congress, and we have 

yet to act on any meaningful update to our civil rights laws. 

The fact is that, despite the progress we have made in the last 50 years, there 

is still much left to be done. And I believe there are many issues where Democrats 

and Republicans can join together to strengthen our civil rights laws. 

The Employment Nondiscrimination Act, which I am proud to cosponsor, would 

prohibit discrimination in the workplace because of someone’s sexual orientation or 

gender identity and enjoys support from both Democratic and Republican co-sponsors. 

I urge Chairman Walberg and Chairman Kline to work with Representatives Polis 

and Ros-Lehtinen, the bill’s bipartisan sponsors, to bring this long overdue legislation back before the Committee for immediate consideration. 

In addition, the Paycheck Fairness Act—which has been passed twice by this 

House on a bipartisan basis—should be brought up for immediate consideration so 

that gender-based pay discrimination is finally put on equal footing with other civil 

rights violations in the workplace. 

These efforts should be the topic of this hearing. We should be seeking opportunities to together to strengthen and update this nation’s civil rights laws. 

Thank you Mr. Chairman. And thanks again to our witnesses for your participation. 

Chairman WALBERG. I thank the gentleman. And your points are 

duly noted. I would just add that this is a process. And as I said 

in my opening statements, we are still waiting for some of the action that we requested when we had the EEOC in front of us that 

still have not been dealt with. 

As far as a do-nothing Congress, I would hesitate to use that 

term when, in fact, in a bipartisan way this House has done an 

awful lot of work, hundreds of bills sent to the Senate, many of 

which are bipartisan in effort and in vote. 

So if we would amend that to be a bipartisan—or a do-nothing 

Senate, I would approve of it even more so. But that will be a debate for another day. Pursuant to committee rule 7(c), all members 

will be permitted to submit written statements to be included in 

CEWDOCROOM with DISTILLER

7 

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 

hearing to be submitted in the official hearing record. 

And now I have the privilege of introducing our panel that have 

taken their time and submitted to our request to come here. And 

we appreciate that. First, Ms. Camille Olson is a partner at 

Seyfarth Shaw in Chicago, Illinois, my hometown, as we discussed 

earlier. She will be testifying on behalf of the U.S. Chamber of 

Commerce. Welcome. 

Mr. Todd McCracken is the president of the National Small Business Association in Washington, D.C. Thanks for being here. Ms. 

Sherrilyn Ifill—did I get that right—Ifill is the president and director of the NAACP legal defense and educational fund in New York, 

New York. Welcome. 

And finally, Ms. Lucia Bone is the founder of the Sue Weaver 

C.A.U.S.E. in Flower Mound, Texas. Welcome. 

Before I recognize each of you to provide your testimony, most 

of you are aware that you will have a 5-minute time period to give 

your testimony. Your full testimony, written, is recorded and will 

be for our use. When you begin the light be at the green. When you 

see it turn yellow, that means you have approximately 1 minute 

left to conclude your comments. And I would ask you to try to keep 

within that 5-minute time period. The same will be for our committee, when we have the opportunity to question you. We will 

have 5 minutes, as well. 

So now let me recognize our first witness, Ms. Olson? Microphone, is that on? 

STATEMENT OF MS. CAMILLE OLSON, PARTNER, SEYFARTH 

SHAW LLP, CHICAGO, ILLINOIS 

Ms. OLSON. Would you like me to start over? Thanks. 

Good morning. Thank you, Chairman Walberg, Ranking Member 

Courtney, and other committee members. I am testifying on behalf 

of the U.S. Chamber of Commerce, the world’s largest business federation. I chair the chamber’s Employment Opportunity Policy Subcommittee, and I am also a partner with the law firm of Seyfarth 

Shaw. 

The Chamber is a long-standing supporter of reasonable and necessary steps to achieve the goal of equal employment opportunity 

for all. However, the Chamber has serious concerns as to how federal nondiscrimination laws are currently being administered and 

enforced by the EEOC. 

Loosely defined and overly broad, grants of authority to agency 

officers have resulted in an EEOC that prioritizes expansive enforcement, aggressive litigation and punishment over education, cooperation, and conciliation. The EEOC is failing in its fundamental 

roles, failing to properly and timely investigate charges, failing to 

conciliate in good faith and failing to effectively litigate. As a consequence, the EEOC is failing in its core mission: to effectively enforce Title VII and other nondiscrimination laws. 

First, EEOC has not fulfilled its mandate to properly litigate and 

investigate charges. Investigation abuses include those experienced 

by Chamber members as well as those relied upon by courts to 

CEWDOCROOM with DISTILLER

8 

grant summary judgment in an employer’s favor in multi-plaintiff 

litigation initiated by the EEOC. 

At EEOC meetings in 2012 and 2013, both plaintiff and management attorneys confronted EEOC commissioners with complaints 

that investigations were too long, inconsistent and of questionable 

quality. To date, the EEOC has failed to address those concerns by 

providing investigators with timeliness standards for a definition of 

a quality, limited investigation. 

Second, too often the EEOC has prioritized litigation over its 

statutory mandate to conciliate, refusing to engage in meaningful 

conciliation negotiations and exchanges of information during conciliation. EEOC now contends that conciliation obligations are exempt from judicial review. EEOC v. CRST is one stark example of 

the damage done by the EEOC’s misplaced priorities. The 8th Circuit Court of Appeals dismissed an EEOC case involving over 150 

women because the EEOC’s failure to conciliate and its, quote, unquote—‘‘stonewalling,’’ sanctioning the EEOC $4.7 million. 

Third, numerous EEOC cases have been initiated without commission authorization. And many have been adjudged by federal 

district courts across the United States to be frivolous, unreasonable and without foundation. In the last two years alone, the EEOC 

has been ordered to pay employers over $5.6 million as a result of 

its litigation failures. A Michigan federal court described the 

EEOC’s actions as, quote—‘‘lacking foundation from the beginning.’’ 

While a New York federal court criticized the EEOC for its, quote— 

‘‘sue first, prove later approach.’’ 

In EEOC litigation challenging an employer’s use of background 

checks, Ohio and Maryland federal courts independently criticized 

the EEOC for using a, quote—‘‘homemade method of proof that the 

EEOC itself prohibits,’’ noting that the EEOC was suing employers 

for the same type of background checks that the EEOC itself uses. 

The Maryland court characterized the EEOC’s analysis as containing a mind-boggling number of errors, laughable, skewed and 

an egregious example of scientific dishonesty. 

Of particular concern is the EEOC’s extensive delegation of authority to the general counsel in bringing litigation. Given the significant expenditure of resources by all parties in systemic and 

multi-plaintiff cases, and in light of the EEOC’s recent history of 

litigation failures, the Chamber urges that all multi-plaintiff litigation be submitted to the commissioners for approval prior to initiation. 

The EEOC does not report the results of one of its most important legal enforcement methods, the amicus curiae briefs it files in 

cases raising novel or important issues of law. In 2013, the EEOC’s 

positions were rejected in eight of the 10 substantive positions it 

advanced through its amicus briefs. In four of these, the Supreme 

Court and courts of appeals also rejected relevant provisions in the 

EEOC’s underlying enforcement guidance. In one case, the Supreme Court characterized the EEOC’s underlying enforcement 

guidance as, quote—‘‘a proposed standard of remarkable ambiguity,’’ while in another the Supreme Court rejected EEOC’s enforcement guidance, explaining it’s positions were circular and 

unpersuasive. 

CEWDOCROOM with DISTILLER

9 

The EEOC’s amicus litigation program was an overwhelming 

failure, leaving employers searching as to where to find accurate, 

reliable guidance on their obligations under federal nondiscrimination laws. I have submitted for the record written testimony, as 

well as the Chamber’s recently published paper that details the 

EEOC’s unreasonable enforcement efforts and misplaced priorities 

in all three phases of its statutory mandate. For these reasons, the 

Chamber calls for increased oversight by the commissioners and a 

refocusing of EEOC’s priorities toward its fundamental statutory 

responsibilities. 

Thank you for the opportunity to share some of these concerns 

with you today. 

[The statement of Ms. Olson follows:] 

CEWDOCROOM with DISTILLER

10 

CEWDOCROOM with DISTILLER


Insert offset folio 1 here 88194.001
11 

CEWDOCROOM with DISTILLER


Insert offset folio 2 here 88194.002
12 

CEWDOCROOM with DISTILLER


Insert offset folio 3 here 88194.003
13 

CEWDOCROOM with DISTILLER


Insert offset folio 4 here 88194.004
14 

CEWDOCROOM with DISTILLER


Insert offset folio 5 here 88194.005
15 

CEWDOCROOM with DISTILLER


Insert offset folio 6 here 88194.006
16 

CEWDOCROOM with DISTILLER


Insert offset folio 7 here 88194.007
17 

CEWDOCROOM with DISTILLER


Insert offset folio 8 here 88194.008
18 

CEWDOCROOM with DISTILLER


Insert offset folio 9 here 88194.009
19 

CEWDOCROOM with DISTILLER


Insert offset folio 10 here 88194.010
20 

CEWDOCROOM with DISTILLER


Insert offset folio 11 here 88194.011
21 

CEWDOCROOM with DISTILLER


Insert offset folio 12 here 88194.012
22 

CEWDOCROOM with DISTILLER


Insert offset folio 13 here 88194.013
23 

CEWDOCROOM with DISTILLER


Insert offset folio 14 here 88194.014
24 

CEWDOCROOM with DISTILLER


Insert offset folio 15 here 88194.015
25 

CEWDOCROOM with DISTILLER


Insert offset folio 16 here 88194.016
26 

CEWDOCROOM with DISTILLER


Insert offset folio 17 here 88194.017
27 

CEWDOCROOM with DISTILLER


Insert offset folio 18 here 88194.018
28 

CEWDOCROOM with DISTILLER


Insert offset folio 19 here 88194.019
29 

CEWDOCROOM with DISTILLER


Insert offset folio 20 here 88194.020
30 

CEWDOCROOM with DISTILLER


Insert offset folio 21 here 88194.021
31 

CEWDOCROOM with DISTILLER


Insert offset folio 22 here 88194.022
32 

CEWDOCROOM with DISTILLER


Insert offset folio 23 here 88194.023
33 

CEWDOCROOM with DISTILLER


Insert offset folio 24 here 88194.024
34 

CEWDOCROOM with DISTILLER


Insert offset folio 25 here 88194.025
35 

CEWDOCROOM with DISTILLER


Insert offset folio 26 here 88194.026
36 

CEWDOCROOM with DISTILLER


Insert offset folio 27 here 88194.027
37 

CEWDOCROOM with DISTILLER


Insert offset folio 28 here 88194.028
38 

CEWDOCROOM with DISTILLER


Insert offset folio 29 here 88194.029
39 

CEWDOCROOM with DISTILLER


Insert offset folio 30 here 88194.030
40 

CEWDOCROOM with DISTILLER


Insert offset folio 31 here 88194.031
41 

CEWDOCROOM with DISTILLER


Insert offset folio 32 here 88194.032
42 

CEWDOCROOM with DISTILLER


Insert offset folio 33 here 88194.033
43 

CEWDOCROOM with DISTILLER


Insert offset folio 34 here 88194.034
44 

CEWDOCROOM with DISTILLER


Insert offset folio 35 here 88194.035
45 

CEWDOCROOM with DISTILLER


Insert offset folio 36 here 88194.036
46 

CEWDOCROOM with DISTILLER


Insert offset folio 37 here 88194.037
47 

CEWDOCROOM with DISTILLER


Insert offset folio 38 here 88194.038
48 

CEWDOCROOM with DISTILLER


Insert offset folio 39 here 88194.039
49 

CEWDOCROOM with DISTILLER


Insert offset folio 40 here 88194.040
50 

CEWDOCROOM with DISTILLER


Insert offset folio 41 here 88194.041
51 

CEWDOCROOM with DISTILLER


Insert offset folio 42 here 88194.042
52 

CEWDOCROOM with DISTILLER


Insert offset folio 43 here 88194.043
53 

CEWDOCROOM with DISTILLER


Insert offset folio 44 here 88194.044
54 

Chairman WALBERG. Thank you. 

Mr. McCracken, you are recognized for 5 minutes. 

STATEMENT OF MR. TODD MCCRACKEN, PRESIDENT, 

NATIONAL SMALL BUSINESS ASSOCIATION, WASHINGTON, D.C. 

Mr. MCCRACKEN. Good morning, Mr. Chairman, members of the 

Committee. My name is Todd McCracken. I am the president of the 

National Small Business Association. Thank you for inviting us 

here today to discuss some of the many federal enforcement issues 

that confront our nation’s small business community. Today, I am 

going to focus my comments on criminal background screening in 

general, and recent initiatives in this area by the Equal Employment Opportunity Commission, in particular. 

Employers want to provide a safe place for their employees to 

work and to do their best to prevent workplace crime. They want 

to ensure that the employees that they send to customers’ homes 

as technicians, repair people, or salespeople do not inflict harm on 

their customers. They need to take steps to prevent theft, fraud, 

and embezzlement. Criminal background screening is an important 

tool—nearly the only tool for small companies—that employers 

have to protect their customers, their employees, and themselves 

from criminal behavior. 

For its part, the federal government—in this case, the EEOC— 

has an obligation to articulate rules that are comprehensible and 

can actually be implemented. It is fundamentally unfair and, in 

practice, counterproductive for the rules to be so opaque that few 

small business practitioners can understand them. Lack of crisp 

guidance leads to situations where enforcement is starkly arbitrary, and the rules, since they cannot be understood, are, effectively, ignored. 

Today, small companies live with the threat that they may be 

sued for negligent hiring if they hire an unsuitable employee who 

subsequently commits a crime or tortious act in the workplace or 

in a customer’s home or workplace. The complicated, confusing 

guidance discourages small businesses from relying on checks and, 

in tandem with EEOC’s stepped-up enforcement in this area, 

means that small businesses face greater legal exposure. 

Small businesses are caught between competing government priorities and perspectives among different federal agencies, the 

courts and state and federal governments. The 2012 EEOC guidance, for example, explicitly stated that the fact that a small business was complying with the state legal requirement to conduct a 

criminal background check or to bar a felon from a particular position would not prevent an EEOC enforcement action. With respect, 

it is ridiculous that a small business is forced to choose between 

two conflicting government requirements. If the EEOC has a problem with a state statute it should challenge the statute, not launch 

enforcement action against a business who complied with state law. 

Unlike the federal government, small businesses have limited resources and defending such lawsuits can devastate the financial 

health of the business. 

Neither the small business community nor the EEOC 

countenances discrimination. Small businesses are conducting 

background checks to help promote public safety, not for the purCEWDOCROOM with DISTILLER

55 

poses of excluding minority employees. They are trying to hire 

qualified employees. They are trying to prevent their employees, 

their customers and, in the case of family-owned businesses, their 

own families from becoming victims of crime. They are trying to 

avoid liability for crimes committed by employees, and they are trying to limit theft, fraud, embezzlement, and other property crimes. 

The vast majority of small firms are also trying to comply with 

the law and with EEOC guidance. In the current situation, they 

are unable to do so with any degree of confidence. I can assure that 

it is a rare small business owner who is going to be able to read, 

absorb and apply the 55-page, 167-footnote enforcement guidance 

on a consideration of arrest and conviction records in employment 

decision that are in Title VII of the Civil Rights Act of 1964, issued 

by the EEOC on April 25, 2012. More importantly, we have had 

discussions with sophisticated attorneys who grapple with these 

issues for a living, including those who work for large law firms advising large corporations. 

They struggle with how to advise their clients, as well. If they 

are at a loss, then small firms and their generalist attorneys will 

fare no better. 

Workplace violence is a significant problem. Workplace theft and 

embezzlement are also major problems. Both can be reduced 

through proper background screening. According to the Bureau’s 

justice statistics, approximately 572,000 non-fatal violent crimes occurred against persons age 16 or older while they were at work in 

2009. Workplace violence accounted for 15 percent of non-fatal violent crime against persons age 16 or older. In short, workplace violence remains a very serious problem, even though it has declined 

over the last 15 years. 

I would also like to make the point that it is not fundamentally 

in an employer’s interest to fail to hire an otherwise qualified applicant because of a long-past minor infraction. It is not in their interest, for example, to fail to hire someone who got into an altercation years ago and has otherwise had no problems with the law 

and has a good employment record. Since employers have every interest in keeping their pool of potential job candidates as large as 

possible, it does not take a major enforcement effort to achieve 

these results. We must find a way to provide clear guidance to 

small companies so that they can protect their employees, their 

customers and their workplaces without unduly burdening them. 

Thank you for inviting us to testify today, and we look forward 

to continuing to work to address these important issues. 

[The statement of Mr. McCracken follows:] 

CEWDOCROOM with DISTILLER

56 

CEWDOCROOM with DISTILLER


Insert offset folio 45 here 88194.045
57 

CEWDOCROOM with DISTILLER


Insert offset folio 46 here 88194.046
58 

CEWDOCROOM with DISTILLER


Insert offset folio 47 here 88194.047
59 

CEWDOCROOM with DISTILLER


Insert offset folio 48 here 88194.048
60 

CEWDOCROOM with DISTILLER


Insert offset folio 49 here 88194.049
61 

CEWDOCROOM with DISTILLER


Insert offset folio 50 here 88194.050
62 

Chairman WALBERG. Thank you. 

Ms. Ifill, you are recognized for your 5 minutes. Thank you. 

STATEMENT OF MS. SHERRILYN IFILL, PRESIDENT AND DIRECTOR–COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, NEW YORK, NEW YORK 

Ms. IFILL. Thank you. Good morning, Chairman Walberg, Ranking Member Courtney, members of the subcommittee. Thank you 

for the opportunity to testify this morning about the Equal Employment Opportunity Commission. 

Next month, we will celebrate the 50th anniversary of the Civil 

Rights Act of 1964. Without question, that legislation is one of the 

most important pieces of civil rights legislation ever enacted by the 

United States Congress to ensure that our country keeps its promise of equality and justice. 

It is perhaps best known for Title VII, which outlawed discrimination in employment on the basis of race, color, religion, sex or 

national origin. The creation of the EEOC as the agency charged 

with receiving, investigating and referring complaints of employment discrimination for litigation was a core aspect of the bipartisan compromise that resulted in Title VII. 

Since the enactment of Title VII, the Legal Defense Fund has 

worked to enforce this landmark statute, challenging discriminatory practices of both private and public employers, and serving on 

the front lines of many great civil rights battles seeking equal opportunity in employment for all. From this vantage point, the Legal 

Defense Fund has had the unique opportunity to observe the work 

of the EEOC and to assess its effectiveness. There is no question 

that the EEOC has been incredibly successful in redressing various 

forms of employment discrimination. The commission has been a 

driving force in dismantling segregated workplaces, removing unnecessary and discriminatory employment barriers and obstacles, 

and ensuring that the promise of equality at work could be realized 

for millions of Americans. 

Despite the tremendous progress we have made in ensuring 

equal opportunity in the workplace, sadly our work in eliminating 

discrimination is far from over. And the EEOC plays a critical role 

in the ongoing work of eradicating employment discrimination. One 

need only look to recent EEOC court victories to understand that 

even the most pernicious forms of racism on the job unfortunately 

still exist. In 2012, a Texas jury awarded punitive damages to 

three African-American manufacturing employees subjected to racially offensive slurs and a noose in the workplace, including the 

use of the N word by a top plant official who responded to complaints about the noose with the comment, ‘‘You people are too sensitive.’’ 

Last year, a North Carolina jury unanimously found that African-American truck drivers who were called the N word, monkey 

and boy, and threatened with nooses by a manager and coworker, 

were harassed and retaliated against because of their race. 

And earlier this year, the EEOC secured relief for an AfricanAmerican technician in Arkansas who was subjected to racially offensive language and visited at home, in it middle of the night, by 

CEWDOCROOM with DISTILLER

63 

two white coworkers threatening to kill him if he complained about 

further racial harassment. 

In fiscal year 2013 alone, the EEOC received nearly 94,000 

charges of discrimination. Of those charges, 33,068 involved allegations of racial discrimination. Over 27,000 involved allegations of 

sex discrimination, over 25,000 of disability status. And over 21,000 

involved allegations of age discrimination. And we know that the 

number of filed charges does not come close to fully representing 

the millions of Americans who still endure unlawful discrimination 

and mistreatment in the workplace. The recent downturn in the 

economy has only served as another painful reminder of the continued existence of employment discrimination in the workplace. 

While nationwide the unemployment rate is around 6 percent, for 

Latino Americans the rate is 8 percent and for African-Americans, 

12.2 percent. Given the scope of the problem, we commend the 

EEOC’s decision to continue to prioritize the initiative revitalized 

under President George W. Bush’s administration of focusing the 

commission’s resources on redressing systemic discrimination. 

We also applaud the EEOC’s recent actions around the misuse 

of criminal background checks in employment. We believe it highlights the ways in which the commission is working to address and 

remedy discriminatory barriers that have disparate impacts on protected classes. 

It is important to remember that the EEOC guidelines do not 

prohibit or discourage the use of background checks. Instead, they 

provide guidance to employers. All of us stand united in our commitment to a safe work environment. We stand in sympathy with 

the family of Susan Weaver, whose tragic death resulted from the 

failure to properly use criminal background checks. The EEOC’s 

guidance is designed to help employers in the proper use of this important information, and to explain to employers how they can use 

this and keep their workplace safe. 

The guidance is not only commendable, it is consistent with the 

growing national and bipartisan consensus that we need to rethink 

our criminal reentry systems in order to ensure that millions of 

Americans who have a criminal record, but who have paid their 

debt to society and do not pose a danger and are qualified for work, 

are not unjustly denied the opportunity to reintegrate back into society. The eve of the 50th anniversary of the Civil Rights Act of 

1964 provides a timely opportunity to pause and consider the work 

of the EEOC. 

That work is far from over. As Naomi Earp, who served as the 

chair under President George W. Bush remarked, ‘‘new times demand new strategies to stay ahead of the curve; these old evils are 

still around in new forms, and the commission intends to act vigorously to eradicate them.’’ We agree with that statement. 

Thank you for the opportunity to testify today, and I would be 

happy to answer your questions. 

[The statement of Ms. Ifill follows:] 

CEWDOCROOM with DISTILLER

64 

CEWDOCROOM with DISTILLER


Insert offset folio 51 here 88194.051
65 

CEWDOCROOM with DISTILLER


Insert offset folio 52 here 88194.052
66 

CEWDOCROOM with DISTILLER


Insert offset folio 53 here 88194.053
67 

CEWDOCROOM with DISTILLER


Insert offset folio 54 here 88194.054
68 

CEWDOCROOM with DISTILLER


Insert offset folio 55 here 88194.055
69 

CEWDOCROOM with DISTILLER


Insert offset folio 56 here 88194.056
70 

CEWDOCROOM with DISTILLER


Insert offset folio 57 here 88194.057
71 

CEWDOCROOM with DISTILLER


Insert offset folio 58 here 88194.058
72 

CEWDOCROOM with DISTILLER


Insert offset folio 59 here 88194.059
73 

Chairman WALBERG. Thank you, Ms. Ifill. 

Ms. Bone, you are now recognized. 

STATEMENT OF MS. LUCIA BONE, FOUNDER, THE SUE 

WEAVER C.A.U.S.E., FLOWER MOUND, TEXAS 

Ms. BONE. Good morning, Chairman Walberg and Ranking Member Courtney and other members of the subcommittee. It is a great 

privilege for me to appear before the House Subcommittee on 

Workforce Protections in honor and in memory of my sister, Sue 

Weaver, and for the other victims whose tragic deaths could have 

been prevented had an employer done a proper criminal background check before hiring those individuals. 

My name is Lucia Bone, and I am the founder of the Sue Weaver 

C.A.U.S.E., Consumer Awareness of Unsafe Service Employment. 

In 2004, we were founded, and C.A.U.S.E. is a non-profit organization proactively keeping you and your families safe by promoting 

the importance of proper annual criminal background checks on 

anyone hired to work in our homes or with vulnerable populations. 

C.A.U.S.E. does not actually conduct criminal background checks. 

We are an honorary member of the National Association of Professional Background Screeners. 

At one time or another, we all need to invite strangers into our 

home for maintenance or delivery. Most of us trust the companies 

that we hire to send safe workers into our home. But how do we 

know if that trust is well-placed? My sister, Sue Weaver, thought 

it was. She was wrong. My sister hired a reputable Florida department store to have her air ducts cleaned. No criminal background 

checks were done on the workers they sent into customers’ homes. 

The work was subcontracted out, and two convicted felons were 

sent into Sue’s home to do the service work: a single woman, home 

alone, two convicted felons. Six months later, one of the workers returned. He was a twice-convicted sex offender on parole. He raped 

Sue, he murdered her, he set her body and her home on fire in an 

effort to destroy the DNA evidence. Had a criminal background 

check been done, the employer would have known that these men 

were not suitable to be working in customers’ homes due to their 

criminal history, and my sister might still be alive today. 

Since Sue’s death in 2001, I have campaigned tirelessly to educate and bring awareness to the importance of proper background 

investigations and the importance of knowing whom you hire. Not 

only do background checks make good business sense, they save 

lives. It is absurd that a person with multiple convictions for violent sexual assault should be engaged as a home repairman, yet it 

happens over and over again. Everyone has the right to work, but 

not every job is right for everyone. 

Criminal background investigations provide employers an invaluable tool to help them place employees in job-appropriate positions, 

better protecting coworkers and customers. Background checks prevent tragedies. 

In the last decade, we have witnessed a dramatic upsurge in 

laws mandating background checks in many areas, often to better 

screen those working with children or vulnerable populations. Unfortunately, we must ask ourselves if the EEOC’s focus isn’t on 

helping ex-offenders seeking employment without regard to conCEWDOCROOM with DISTILLER

74 

sumer safety. Everyone deserves a second chance, but not at the 

expense of innocents such as my sister. 

Employers need to know who they are hiring, and background 

checks are an appropriate risk-mitigation tool that helps them do 

so. I am gravely disappointed that no victims were represented at 

the July 2011 meeting of the EEOC that preceded the issuance of 

the guidance. The Commission did not consider the victims’ side, 

but solely focused their attention on the plight of the ex-offenders. 

Background checks were singled out as the leading cause of why 

minority ex-offenders fail to find jobs. They ignored other challenges, such as drug and alcohol addictions, lack of education or vocational training and lack of family structure, and ignored the consumer safety and risk mitigation benefits of background screening. 

I am not an expert in the workings of Congress and regulatory 

agencies, but common sense leads me to believe that the EEOC 

needs to suspend implementation of its guidance and hold the type 

of transparent, inclusive proceeding that it should have conducted 

in the first place. This time, they need to listen to victims and their 

families, and victims’ rights organizations, and those representing 

the vulnerable populations. All views need to be heard and considered before a new policy goes into effect. 

When weighing the risks and benefits of the proposed policy 

guidance, they must balance the safety of the public and the innocent consumers against the employment concerns of ex-offenders. 

While, sadly, it is too late for my sister, it is not too late for all 

the others who might become victims. By discouraging background 

checks used to qualify individuals that work near our families, we 

are knowingly risking the safety of ourselves and our loved ones. 

Under the guidance, it is more difficult for employers to make informed hiring decisions, placing employees and consumers in unsuitable situations and jeopardizing the safety of our families, our 

homes and our workplace. 

Thank you. 

[The statement of Ms. Bone follows:] 

CEWDOCROOM with DISTILLER

75 

CEWDOCROOM with DISTILLER


Insert offset folio 60 here 88194.060
76 

CEWDOCROOM with DISTILLER


Insert offset folio 61 here 88194.061
77 

CEWDOCROOM with DISTILLER


Insert offset folio 62 here 88194.062
78 

CEWDOCROOM with DISTILLER


Insert offset folio 63 here 88194.063
79 

CEWDOCROOM with DISTILLER


Insert offset folio 64 here 88194.064
80 

Chairman WALBERG. I thank you for your testimony. I thank 

each of you for the testimony. 

And now I recognize, to open our questioning, the Chairman of 

our full Committee, Education and the Workforce, the gentleman 

from Minnesota, Mr. Kline. 

Mr. KLINE. Thank you, Mr. Chairman. And thank the witnesses 

for being here today. Really expert testimony from all of you. 

I want to—I think we could all agree, in fact I am sure of it, on 

both sides of the aisle, that it is important, when we look at nondiscrimination issues and Title VII, that we do so mindful of what 

it was supposed to do. 

What I see here, listening to Mr. McCracken’s testimony, is a situation where we are making things more and more complicated 

and, therefore, harder to actually comply with the intent of the 

law. So in looking at the criminal background checks guidance—I 

think, Mr. McCracken, you indicate it is 55 pages long, and my 

notes say 157 footnotes, I think you said 167—that is a lot, in a 

time when we see uncertainty and a blizzard of rulemaking descending on businesses, large and small. 

We have small businesses—for example, trying to figure out 

whether they have got 50 employees or 49 employees, or whether 

they are working 30 hours or 29 or 39 hours a week—how are they 

gonna comply with the Affordable Care Act? And now they have 

got guidance from the EEOC that is 55 pages long and has 157 

footnotes. It seems to me that would be pretty difficult to comply 

with if you are a small business owner. Would it not, Mr. 

McCracken? 

Mr. MCCRACKEN. I would say yes, because the companies that I 

am most—we are most concerned about are those, as you suggest, 

50 or so and less, where they don’t have a dedicated HR person on 

staff. A lot of these issues are handled directly by the small business owner him-or herself. And we also have to realize that it is 

particularly in smaller workplaces employees often handle a wide 

variety of tasks, and jobs can change rather quickly. And so doing 

the individualized assessments is even more complex and difficult 

in a small business setting than it is in a large employer setting. 

And coupled with that, they have far less available expertise with 

which to accomplish that. 

Mr. KLINE. Right. So they are going to have difficulty complying 

with this if they don’t have the resources to hire an attorney. Is 

there any safe harbor in here? 

Mr. MCCRACKEN. Not that I am aware of, no. 

Mr. KLINE. I mean, I suppose they could just not do background 

checks. But then they would be in violation of other statute. So 

under that circumstance, it seems to me that this would add to uncertainty on the part of employers and would make it less likely 

that they would make new hires. And at a time when we are looking at a workforce participation rate that is as low as we have seen 

in decades, another factor making it more difficult for employers to 

make decisions to hire is exactly the wrong thing that we need 

right now. 

But it looks to me as though this guidance is going to do just 

that. And so whether you are a potential new hire that is a minority or not a minority, protected class or not, less likely to have an 

CEWDOCROOM with DISTILLER

81 

opportunity to be hired under this guidance. Is that the way I— 

that is the way I understand your testimony. I am just trying to— 

Mr. MCCRACKEN. I think that is a good analysis. Another point 

that I would bring up that hasn’t been specifically mentioned is, it 

also creates incentives for companies of all sizes to subcontract out 

many of these functions so they don’t do the hiring themselves. 

And to the extent those companies, or small businesses with fewer 

than 50 employees, these laws don’t apply. So there is a significant—the more complex you make these things, the more difficult 

they are for employers of all sizes, the more the very 

underpinnings of the goals of the rules are undercutting themselves. 

Mr. KLINE. So it has the perverse effect of actually putting up 

employment barriers, which we were trying in the first place to 

eliminate employer barriers, employment barriers, barriers to employment by the original act. 

All right, Mr. Chairman, I yield back. Thank you. 

Chairman WALBERG. I thank the gentleman. 

I now recognize the ranking member, Mr. Courtney. 

Mr. COURTNEY. Thank you, Mr. Chairman. And, again, unfortunately because the agency was not invited today so that we could 

actually have a real dialogue and, you know, I actually think that 

would be a way to sort of shed light in terms of trying to get to 

real oversight, you know, we are going to have to sort of rely on 

sort of indirect, third-party contributions to sort of, at least partially, recreate some balance in the record here. 

And so, Mr. Chairman, first of all I would like to enter into the 

record a statement by David Lopez, who is general counsel for the 

EEOC, who makes a few points, which he did just recently again, 

in response to some of the claims that we have heard here this 

morning. Number one, he sets the record straight in terms of the 

percentage of litigation that actually has materialized in 2013. 

And, again, Ms. Ifill sort of alluded to that in terms of some of the 

statistics that she cited. But it is about 0.5 percent, less than a percent, of cases that actually went to litigation. 

In addition, he cited some other court rulings, Mach Mining and 

others, who were at odds with the case that was cited earlier here. 

Again, there is clearly a conflict between the two circuits about 

the—you know, the handling of the conciliation process by the 

agency, which is a good thing. Again, I practiced law for 27 years, 

and understood well that, you know, judges, like everybody else, 

can sometimes disagree in terms of interpreting statutes. And, 

again, I think, you know, having that discussion here today is fine. 

Again, it is too bad that the party to the litigation is not present 

in terms of being able to just, you know, articulate their point of 

view on this. But again, we were deprived of that by the way in 

which this hearing was organized. So, again, I would like to have 

Mr. Lopez’s statement entered into the record. Which, again, I 

think sheds some facts for the record in response to some of the 

claims that were being made here. 

[The information follows:] 

[Additional Submissions by Mr. Courtney follow:] 

CEWDOCROOM with DISTILLER

82 

CEWDOCROOM with DISTILLER


Insert offset folio 75 here 88194.075
83 

CEWDOCROOM with DISTILLER


Insert offset folio 76 here 88194.076
84 

CEWDOCROOM with DISTILLER


Insert offset folio 77 here 88194.077
85 

CEWDOCROOM with DISTILLER


Insert offset folio 78 here 88194.078
86 

CEWDOCROOM with DISTILLER


Insert offset folio 79 here 88194.079
87 

CEWDOCROOM with DISTILLER


Insert offset folio 80 here 88194.080
88 

CEWDOCROOM with DISTILLER


Insert offset folio 81 here 88194.081
89 

CEWDOCROOM with DISTILLER


Insert offset folio 82 here 88194.082
90 

CEWDOCROOM with DISTILLER


Insert offset folio 83 here 88194.083
91 

CEWDOCROOM with DISTILLER


Insert offset folio 84 here 88194.084
92 

CEWDOCROOM with DISTILLER


Insert offset folio 85 here 88194.085
93 

CEWDOCROOM with DISTILLER


Insert offset folio 86 here 88194.086
94 

CEWDOCROOM with DISTILLER


Insert offset folio 87 here 88194.087
95 

CEWDOCROOM with DISTILLER


Insert offset folio 88 here 88194.088
96 

CEWDOCROOM with DISTILLER


Insert offset folio 89 here 88194.089
97 

CEWDOCROOM with DISTILLER


Insert offset folio 90 here 88194.090
98 

CEWDOCROOM with DISTILLER


Insert offset folio 91 here 88194.091
99 

CEWDOCROOM with DISTILLER


Insert offset folio 92 here 88194.092
100 

CEWDOCROOM with DISTILLER


Insert offset folio 93 here 88194.093
101 

CEWDOCROOM with DISTILLER


Insert offset folio 94 here 88194.094
102 

CEWDOCROOM with DISTILLER


Insert offset folio 95 here 88194.095
103 

CEWDOCROOM with DISTILLER


Insert offset folio 96 here 88194.096
104 

CEWDOCROOM with DISTILLER


Insert offset folio 97 here 88194.097
105 

CEWDOCROOM with DISTILLER


Insert offset folio 98 here 88194.098
106 

CEWDOCROOM with DISTILLER


Insert offset folio 99 here 88194.099
107 

CEWDOCROOM with DISTILLER


Insert offset folio 100 here 88194.100
108 

CEWDOCROOM with DISTILLER


Insert offset folio 101 here 88194.101
109 

CEWDOCROOM with DISTILLER


Insert offset folio 102 here 88194.102
110 

CEWDOCROOM with DISTILLER


Insert offset folio 103 here 88194.103
111 

CEWDOCROOM with DISTILLER


Insert offset folio 104 here 88194.104
112 

CEWDOCROOM with DISTILLER


Insert offset folio 105 here 88194.105
113 

CEWDOCROOM with DISTILLER


Insert offset folio 106 here 88194.106
114 

CEWDOCROOM with DISTILLER


Insert offset folio 107 here 88194.107
115 

CEWDOCROOM with DISTILLER


Insert offset folio 108 here 88194.108
116 

CEWDOCROOM with DISTILLER


Insert offset folio 109 here 88194.109
117 

CEWDOCROOM with DISTILLER


Insert offset folio 110 here 88194.110
118 

CEWDOCROOM with DISTILLER


Insert offset folio 111 here 88194.111
119 

CEWDOCROOM with DISTILLER


Insert offset folio 112 here 88194.112
120 

CEWDOCROOM with DISTILLER


Insert offset folio 113 here 88194.113
121 

CEWDOCROOM with DISTILLER


Insert offset folio 114 here 88194.114
122 

CEWDOCROOM with DISTILLER


Insert offset folio 115 here 88194.115
123 

CEWDOCROOM with DISTILLER


Insert offset folio 116 here 88194.116
124 

CEWDOCROOM with DISTILLER


Insert offset folio 117 here 88194.117
125 

CEWDOCROOM with DISTILLER


Insert offset folio 118 here 88194.118
126 

CEWDOCROOM with DISTILLER


Insert offset folio 119 here 88194.119
127 

CEWDOCROOM with DISTILLER


Insert offset folio 120 here 88194.120
128 

CEWDOCROOM with DISTILLER


Insert offset folio 121 here 88194.121
129 

CEWDOCROOM with DISTILLER


Insert offset folio 122 here 88194.122
130 

CEWDOCROOM with DISTILLER


Insert offset folio 123 here 88194.123
131 

CEWDOCROOM with DISTILLER


Insert offset folio 124 here 88194.124
132 

CEWDOCROOM with DISTILLER


Insert offset folio 125 here 88194.125
133 

CEWDOCROOM with DISTILLER


Insert offset folio 126 here 88194.126
134 

CEWDOCROOM with DISTILLER


Insert offset folio 127 here 88194.127
135 

CEWDOCROOM with DISTILLER


Insert offset folio 128 here 88194.128
136 

CEWDOCROOM with DISTILLER


Insert offset folio 129 here 88194.129
137 

CEWDOCROOM with DISTILLER


Insert offset folio 130 here 88194.130
138 

CEWDOCROOM with DISTILLER


Insert offset folio 131 here 88194.131
139 

CEWDOCROOM with DISTILLER


Insert offset folio 132 here 88194.132
140 

CEWDOCROOM with DISTILLER


Insert offset folio 133 here 88194.133
141 

CEWDOCROOM with DISTILLER


Insert offset folio 134 here 88194.134
142 

CEWDOCROOM with DISTILLER


Insert offset folio 135 here 88194.135
143 

CEWDOCROOM with DISTILLER


Insert offset folio 136 here 88194.136
144 

CEWDOCROOM with DISTILLER


Insert offset folio 137 here 88194.137
145 

CEWDOCROOM with DISTILLER


Insert offset folio 138 here 88194.138
146 

CEWDOCROOM with DISTILLER


Insert offset folio 139 here 88194.139
147 

CEWDOCROOM with DISTILLER


Insert offset folio 140 here 88194.140
148 

CEWDOCROOM with DISTILLER


Insert offset folio 141 here 88194.141
149 

CEWDOCROOM with DISTILLER


Insert offset folio 142 here 88194.142
150 

CEWDOCROOM with DISTILLER


Insert offset folio 143 here 88194.143
151 

CEWDOCROOM with DISTILLER


Insert offset folio 144 here 88194.144
152 

CEWDOCROOM with DISTILLER


Insert offset folio 145 here 88194.145
153 

CEWDOCROOM with DISTILLER


Insert offset folio 146 here 88194.146
154 

CEWDOCROOM with DISTILLER


Insert offset folio 147 here 88194.147
155 

CEWDOCROOM with DISTILLER


Insert offset folio 148 here 88194.148
156 

CEWDOCROOM with DISTILLER


Insert offset folio 149 here 88194.149
157 

CEWDOCROOM with DISTILLER


Insert offset folio 150 here 88194.150
158 

CEWDOCROOM with DISTILLER


Insert offset folio 151 here 88194.151
159 

CEWDOCROOM with DISTILLER


Insert offset folio 152 here 88194.152
160 

CEWDOCROOM with DISTILLER


Insert offset folio 153 here 88194.153
161 

CEWDOCROOM with DISTILLER


Insert offset folio 154 here 88194.154
162 

CEWDOCROOM with DISTILLER


Insert offset folio 155 here 88194.155
163 

CEWDOCROOM with DISTILLER


Insert offset folio 156 here 88194.156
164 

CEWDOCROOM with DISTILLER


Insert offset folio 157 here 88194.157
165 

CEWDOCROOM with DISTILLER


Insert offset folio 158 here 88194.158
166 

CEWDOCROOM with DISTILLER


Insert offset folio 159 here 88194.159
167 

CEWDOCROOM with DISTILLER


Insert offset folio 160 here 88194.160
168 

CEWDOCROOM with DISTILLER


Insert offset folio 161 here 88194.161
169 

CEWDOCROOM with DISTILLER


Insert offset folio 162 here 88194.162
170 

CEWDOCROOM with DISTILLER


Insert offset folio 163 here 88194.163
171 

CEWDOCROOM with DISTILLER


Insert offset folio 164 here 88194.164
172 

CEWDOCROOM with DISTILLER


Insert offset folio 165 here 88194.165
173 

CEWDOCROOM with DISTILLER


Insert offset folio 166 here 88194.166
174 

CEWDOCROOM with DISTILLER


Insert offset folio 167 here 88194.167
175 

CEWDOCROOM with DISTILLER


Insert offset folio 168 here 88194.168
176 

CEWDOCROOM with DISTILLER


Insert offset folio 169 here 88194.169
177 

CEWDOCROOM with DISTILLER


Insert offset folio 170 here 88194.170
178 

CEWDOCROOM with DISTILLER


Insert offset folio 171 here 88194.171
179 

CEWDOCROOM with DISTILLER


Insert offset folio 172 here 88194.172
180 

CEWDOCROOM with DISTILLER


Insert offset folio 173 here 88194.173
181 

CEWDOCROOM with DISTILLER


Insert offset folio 174 here 88194.174
182 

CEWDOCROOM with DISTILLER


Insert offset folio 175 here 88194.175
183 

CEWDOCROOM with DISTILLER


Insert offset folio 176 here 88194.176
184 

CEWDOCROOM with DISTILLER


Insert offset folio 177 here 88194.177
185 

CEWDOCROOM with DISTILLER


Insert offset folio 178 here 88194.178
186 

CEWDOCROOM with DISTILLER


Insert offset folio 179 here 88194.179
187 

CEWDOCROOM with DISTILLER


Insert offset folio 180 here 88194.180
188 

CEWDOCROOM with DISTILLER


Insert offset folio 181 here 88194.181
189 

CEWDOCROOM with DISTILLER


Insert offset folio 182 here 88194.182
190 

CEWDOCROOM with DISTILLER


Insert offset folio 183 here 88194.183
191 

CEWDOCROOM with DISTILLER


Insert offset folio 184 here 88194.184
192 

CEWDOCROOM with DISTILLER


Insert offset folio 185 here 88194.185
193 

CEWDOCROOM with DISTILLER


Insert offset folio 186 here 88194.186
194 

CEWDOCROOM with DISTILLER


Insert offset folio 187 here 88194.187
195 

CEWDOCROOM with DISTILLER


Insert offset folio 188 here 88194.188
196 

CEWDOCROOM with DISTILLER


Insert offset folio 189 here 88194.189
197 

CEWDOCROOM with DISTILLER


Insert offset folio 190 here 88194.190
198 

CEWDOCROOM with DISTILLER


Insert offset folio 191 here 88194.191
199 

CEWDOCROOM with DISTILLER


Insert offset folio 192 here 88194.192
200 

CEWDOCROOM with DISTILLER


Insert offset folio 193 here 88194.193
201 

CEWDOCROOM with DISTILLER


Insert offset folio 194 here 88194.194
202 

CEWDOCROOM with DISTILLER


Insert offset folio 195 here 88194.195
203 

CEWDOCROOM with DISTILLER


Insert offset folio 196 here 88194.196
204 

CEWDOCROOM with DISTILLER


Insert offset folio 197 here 88194.197
205 

CEWDOCROOM with DISTILLER


Insert offset folio 198 here 88194.198
206 

CEWDOCROOM with DISTILLER


Insert offset folio 199 here 88194.199
207 

CEWDOCROOM with DISTILLER


Insert offset folio 200 here 88194.200
208 

CEWDOCROOM with DISTILLER


Insert offset folio 201 here 88194.201
209 

CEWDOCROOM with DISTILLER


Insert offset folio 202 here 88194.202
210 

CEWDOCROOM with DISTILLER


Insert offset folio 203 here 88194.203
211 

CEWDOCROOM with DISTILLER


Insert offset folio 204 here 88194.204
212 

CEWDOCROOM with DISTILLER


Insert offset folio 205 here 88194.205
213 

CEWDOCROOM with DISTILLER


Insert offset folio 206 here 88194.206
214 

CEWDOCROOM with DISTILLER


Insert offset folio 207 here 88194.207
215 

CEWDOCROOM with DISTILLER


Insert offset folio 208 here 88194.208
216 

Chairman WALBERG. Without objection, the item will be entered. 

Mr. COURTNEY. In addition, I would like to enter the Wall Street 

Journal article of February 9. The title is ‘‘EEOC Sues Less, but 

Tactics Draw Flack.’’ Again, which shows kind of the discussion 

here today. Which is that, clearly, the numbers show that, you 

know, the notion that there is like this avalanche of litigation out 

there in fact just is not sustained by a true analysis of 2013 data. 

But there is—the tactics are being criticized, and that is certainly 

what is happening here today. 

But again, I think this article shows some balance which, again, 

the fact that we don’t have the agency, the party defendant to some 

of the claims that are being made present here today, unfortunately we have to rely on a third party. So again, I would ask that 

the Wall Street Journal article— 

[The information follows:] 

CEWDOCROOM with DISTILLER

217 

CEWDOCROOM with DISTILLER


Insert offset folio 71 here 88194.071
218 

CEWDOCROOM with DISTILLER


Insert offset folio 72 here 88194.072
219 

CEWDOCROOM with DISTILLER


Insert offset folio 73 here 88194.073
220 

CEWDOCROOM with DISTILLER


Insert offset folio 74 here 88194.074
221 

Chairman WALBERG. Without objection— 

Mr. COURTNEY.—the record. 

Chairman WALBERG.—it will be entered. 

Mr. COURTNEY. Now, Ms. Ifill, you described, again, the fact that 

prejudice and discrimination still exists in this country, sadly. And, 

frankly, we have had some sad examples of that in the media, with 

Mr. Sterling out in California, the Nevada rancher. But again, 

there, in fact, are many, many instances where EEOC’s role, even 

50 years later, is still, you know, very important to the great 

strength of this country, which is the diversity of its population. 

But one thing I also think is important to note is that, you know, 

this agency is not growing like Topsy. In terms of the staffing of 

the agency, it is actually smaller than it—today than it was even 

in a short time ago. And I was wondering if, again, you could sort 

of confirm that in terms of your experience with the department. 

Ms. IFILL. Yes, indeed, that is correct. And as I alluded to in my 

testimony, the complaints that are being received by the EEOC remain still, sadly, at a very high level. And so the agency is really 

charged with figuring out how to address the thousands of complaints that they receive with, in fact, a very limited staff. 

You know that the statute requires the EEOC to engage in conciliation first, which they do. And you also probably know that, certainly, the figures that we have been able to identify demonstrate 

that the vast majority of cases in which the EEOC participates are 

resolved through conciliation or through settlement, and a very 

small fraction actually involve cases that go to trial or are litigated. 

And so the EEOC, at least from our view, is doing precisely what 

the statute required it to do. Which is to, the first line of attack, 

attempt to resolve problems of discrimination in the workplace 

without litigation. With regard to that litigation record, well, I am 

a little cautious about cherry-picking through a record to determine 

whether, in fact, the EEOC is unsuccessful, as has been suggested 

by some of the testimony here. In fact, if you look at the last year 

and the cases that have gone to trial, the EEOC has won nine of 

10 jury trials. I can tell you, as the leader of a civil rights organization, it is not an easy thing to win a jury trial in an employment 

discrimination case. But the EEOC has won nine of the 10 of them. 

If I might, I wanted to say something about just the comment 

that was made earlier about background checks. Am I out of time? 

Chairman WALBERG. Let’s reserve. The time is up. I thank the 

gentleman. I now recognize myself for 5 minutes of questioning. 

Going back to the issue, Mr. McCracken, of a safe harbor. 

EEOC’s enforcement guidance says that if a state law requiring a 

criminal background check is inconsistent with the guidance, complying with the state law will not shield an employer from Title VII 

liability. Nor will complying with the guidance necessarily protect 

an employer from tort liability for negligently hiring a person who 

goes on to commit a crime against the customer, as in the case of 

Ms. Weaver. In your opinion, what would be an appropriate safe 

harbor in relationship to these guidances? 

Mr. MCCRACKEN. Well, we certainly think that it would be appropriate when there is a direct conflict between different levels of 

government in terms of a requirement on a company that there be 

a safe harbor until those various levels of government can work out 

CEWDOCROOM with DISTILLER

222 

their dispute. But it—we don’t think it should be worked out by 

putting, essentially, small companies in a vise and hearing different things from different parts of the government. 

So I—we think that it would be appropriate for the EEOC to create an exception or a carve-out in that particular circumstance. 

And then proceed to work out the disagreement with the state or 

the city or whomever else has that requirement. 

Chairman WALBERG. Okay. But there isn’t that possibility now, 

as you under— 

Mr. MCCRACKEN. That is not my understanding. 

Chairman WALBERG. There is no flexibility there. 

Ms. Olson, you are shaking your head. 

Ms. OLSON. That is correct. The EEOC has made that very clear. 

In fact, there is a lawsuit that has been brought by the state of 

Texas in connection with that specific issue. And the EEOC’s response to the state of Texas’ concern regarding conflicts between 

state law and the EEOC guidance has been you can’t sue based on 

the guidance; it doesn’t have the force of law. Leaving employers 

in a quandary of being potentially subject to significant litigation, 

as we have discussed today, where the EEOC is actually pushing 

enforcement of the theories and the guidance and yet, at the same 

time, potentially being subject to state litigation and litigation by 

private parties if it doesn’t do the background checking that is required under state law. 

Chairman WALBERG. So the costliness of that to the employer encourages them to just back away. 

Ms. OLSON. Right. 

Chairman WALBERG. Let me go on, Ms. Olson. Beginning in 

1996, the EEOC delegated litigation authority decisions to its office 

of general counsel. We expressed concern and questions about that 

when we had the EEOC in front of us last year. In 2012, EEOC 

reinforced a delegation of litigation decisions to the general counsel, with three exceptions. These three exceptions are not always 

clear, and still allow the general counsel considerable discretion as 

to which cases to bring before the commission for a vote. Do you 

believe this delegation of litigation authority affords the general 

counsel too much discretion, and why? 

Ms. OLSON. I do believe it does. The extent of delegation to the 

general counsel, and then the further delegation by the general 

counsel to the district offices, represents a retreat from the responsibilities that both the commissioners, as well as the general counsel were confirmed to carry out. 

In this context, there is no question that litigation is policy. The 

policy of the EEOC is more often than not established by the cases 

it brings. We have heard, today, testimony universally from witnesses that litigation is important; an important policy issue, as 

well as an important enforcement issue, for the EEOC. 

These are the decisions that are properly within the purview of 

the confirmed commissioners, not bureaucrats that are spread 

throughout 15 different offices. And if you look at the history of the 

EEOC during the years 2000 to 2005, EEOC commissioners confirmed, or initiated and authorized, litigation in approximately 75 

to 80 cases per year. If you look back to the years 2010, 2011 and 

CEWDOCROOM with DISTILLER

223 

2012 the record makes clear they have—in those three years combined only authorized litigation in 15 cases. 

Chairman WALBERG. So hence, possibly, the Wall Street Journal 

article, which gives a, I would say, clear misrepresentation of the 

purpose of the EEOC and how it is being carried out, and doesn’t 

note that it has become more bureaucratic with the office of general counsel doing the litigation. Am I correct? 

Ms. OLSON. Another great example are the two recent cases that 

were brought by the EEOC with respect to criminal background 

checks: the BMW case and the Dollar General case. In both those 

cases, those employers are being sued on an alleged theory that 

there is a disparate impact because the employers did not do individualized assessments and are being criticized for not having done 

individualized assessments in those cases. And yet Commissioner 

Berrien, on behalf of the EEOC, has said individualized assessments are not required. A complete disconnect between policy and 

litigation. 

Chairman WALBERG. Okay, thank you. My time has expired. 

I recognize Mr. Takano for your 5 minutes. 

Mr. TAKANO. Thank you, Mr. Chairman. 

Ms. Ifill, would you like to—I would like to give you some time 

to comment on the background check response. 

Ms. IFILL. Thank you, very much. I wanted to respond because 

I want to make clear that neither criminal background checks nor 

guidance or standards that relate to how to properly use criminal 

background checks are entirely new. The guidance that was developed and promulgated by the EEOC actually is based on law that 

comes out of federal courts dating back to 1975. The guidance that 

the EEOC offers as it relates to criminal records and criminal background checks, as I said earlier, neither discourages or suggests 

that background checks of this sort should not be used. 

Instead, what it does is it provides precisely what the word says, 

‘‘guidance’’ to assist, support and help employers figure out how to 

properly use that information. It draws a distinction between, for 

example, records of arrest and records of conviction. It suggests 

that when there is a conviction on the record the employer should 

engage in what is being called an ‘‘individualized assessment,’’ 

which sounds incredibly onerous but, in fact, actually consists of 

three common sense factors. 

That finding a conviction on record, the employer should ask 

three questions. One, what was the nature and gravity of the offense or conduct for which the conviction was received. Two, what 

is the amount of time that has passed since the offense or conduct 

and/or completion of the sentence. And three, what is the nature 

of the job held or sought. 

In the circumstance we heard described earlier with the tragic 

death of Susan Weaver, for example, knowing that the job requires 

people to enter a home would be a relevant factor. The fact that 

there was a conviction on the record for a violent crime would be 

a relevant factor. The time distance between the crime and the employment would be a relevant factor. 

Earlier, Mr. McCracken suggested that it is not logical for employers to exclude employees based on these records if, in fact, the 

crime is not relevant. But it does happen. We represent a woman 

CEWDOCROOM with DISTILLER

224 

named Barbara Harrison. Right now in Texas, a 58-year-old grandmother who applied to be a school crossing guard, when her background check was done, a charge came up from 40 years earlier of 

a fight she had with another girl when she was 18 years old. And 

despite the fact that Ms. Harrison has worked for the city of Dallas 

for 28 years, the job offer that had been extended to her to serve 

as a school crossing guard was withdrawn. 

And the guidance is meant to help employers make distinctions 

between those kinds of situations and the situations that appropriately require the exclusion of a potential employee. 

Mr. TAKANO. Thank you, Ms. Ifill. The example just brought up 

sort of resonates with some of the findings I have had traveling 

through my district, speaking to both employers and frustrated 

prospective employees. That sort of disparity between—I mean, 

that is also a common sense instance. I mean, Ms. Bone, you talk 

about representing common sense, and I recognize the common 

sense that your represent. But I think we could agree that a situation of a 40-year-old offense, I mean, much time has passed. I 

mean, these are reasonable guidelines and standards. 

Are we—you know, Ms. Ifill, I have become aware that many 

states, at least 12 states, have adopted much of—in their laws governing this topic of background checks, the guidelines of the EEOC. 

And so the conflict between states and federal government that Mr. 

McCracken talks about is the trend seems to be moving toward 

adopting what you have just, let’s say, are common sense guidelines. Can you comment on that? 

Ms. IFILL. Twelve states and 60 jurisdictions have adopted ban 

the box rules, the idea being to move the issue of background 

checks further in the process of employment. We all know that this 

country is hurting. That workers, potential workers, are hurting. 

And the effort here is to ensure that those who deserve a fair 

chance at a job have an opportunity to get that job without being 

excluded based on records that are irrelevant to the job, charges 

that are too old and that do not pose or demonstrate that the employee poses a danger. 

And so many states have recognized this. And increasingly, businesses are recognizing this as well. Target, as you may know, has 

decided to ban the box. That is, the box that asks about criminal 

records early in the application process, and instead moves it to 

later where the employer has an opportunity to engage in the kind 

of assessment that the EEOC guidelines suggest. 

Mr. TAKANO. Thank you. 

I believe my time is up, Mr. Chairman. 

Chairman WALBERG. Thank you. 

I recognize now the gentleman from North Carolina, Mr. Hudson. 

Mr. HUDSON. Thank you, sir. And I want to thank the witnesses 

for being here today. This is a very illustrative debate on this issue. 

And particularly, Ms. Bone, I appreciate you and want—I was 

moved by your testimony, and I want to offer my condolences on 

behalf of your sister. And thank you for the work you are doing. 

I think it is important. 

My question to you today, some have argued that the EEOC in 

its guidance gave short shrift to the reasons behind why background checks are necessary for informing hiring decisions. And 

CEWDOCROOM with DISTILLER

225 

also their importance in public safety—this—and, you know, do 

you—I guess my question to you is, do you think the EEOC failed 

to strike a balance between its aims to help protect, you know, exoffenders, but also is striking that balance on behalf of public safety? And what recommendations would you make in terms of trying 

to find a better balance? 

Ms. BONE. I do believe that they did not listen to the victims’ 

side on several occasions. Not only did I write to the EEOC sharing 

Sue’s story, but I was at the hearing. There was absolutely no representation at all from any of the victims’ sides. I think they took 

the rights of the perpetrators way over the rights of the victims. 

And although I did say in my testimony that I do believe that everyone does have the right to work and there is a job for everyone, 

I do not think that the perpetrators’ rights should go before the victims’ rights. 

I would very much like to see them suspend this guidance and 

have an open hearing that weighs both sides and that all parties 

are well-represented. And that they need to stop demonizing background checks and strike a balance so that it is fair to all parties. 

Mr. HUDSON. I appreciate that, and I think that is a good recommendation. You know, I am just struck—I am just trying to 

grapple with why the guidance is devoid of any real discussion of 

the importance of background checks. Particularly when the EEOC, 

other government agencies, rely on background checks in their hiring, and a lot of our local and state counterparts. So I agree with 

you, and appreciate your assessment on that. 

I would now like to jump over to Ms. Olson, if you don’t mind. 

You mentioned in your testimony a couple court cases. One where 

EEOC had to pay $4.7 million in attorneys’ fees, another $752,000 

in attorneys’ fees. Is it of concern that courts have repeatedly found 

these claims frivolous? Should taxpayers be concerned, and I guess 

my ultimate question here, do these court orders indicate EEOC 

legal theories and systemic cases are off the mark? 

Ms. OLSON. It does. It indicates that the theories that are being 

brought are not well grounded in either the facts or in the law. 

There is no question about it. You have got to remember, it is very 

rare for a court to actually sanction a litigant that loses a case. So 

the fact that you see millions of dollars here—and the opportunity 

costs in terms of these are generally big systemic or multi-plaintiff 

cases that are being brought on dubious legal theories, attempting 

to stretch the contours of the—or the statutes that the EEOC is administering. 

As opposed to the type of cases that Ms. Ifill is describing, where 

there are individuals who have charges that are pending for multiple years that haven’t been investigated and haven’t been included. Charges where there may be discrimination, those individual cases that aren’t being pursued. Imagine how many individual cases could be litigated by the EEOC for the $5 million to 

$6 million that the EEOC has had to pay over to employers. And 

this really doesn’t account for the cases that the EEOC has lost, 

that the courts did not apply sanctions in terms of a repaying of 

the employers’ attorneys’ fees and cost. 

Mr. HUDSON. Appreciate that. It seems in these cases—many of 

these cases brought by EEOC under disparate impact theory, in 

CEWDOCROOM with DISTILLER

226 

which a facially neutral policies challenges have a disproportionate 

impact on a protected class of applicants or employees, and is not 

of business necessity. Is there a common theme to these losses? Do 

these losses—these cases indicate that EEOC needs to reassess the 

kinds of disparate impact cases it brings? 

Ms. OLSON. Yes. The common theme, if you look at—and there 

have only been three cases brought by the EEOC that have been 

decided with respect to background checks: Peoplemark, Kaplan 

and Freeman. The EEOC—this is not cherrypicking—has lost all 

three cases. And why? Because the cases were not well grounded 

in facts, yet alone the law. If you look at the additional testimony 

that is being submitted by the EEOC general counsel, he describes 

the fact that, in fact, the legal theories were not even tested. 

Those courts found that the EEOC was not even able to state a 

prima facie case of discrimination. That is the law and that is the 

facts, and the EEOC is failing on both. 

Mr. HUDSON. Thank you, Mr. Chairman. I see my time has expired. 

Chairman WALBERG. I thank the gentleman. And I thank the 

witnesses for being here today. And, again, this is just part of the 

process. But these are questions that are important for the lifeblood of our country, not simply its economy, not simply its business opportunities, but for individuals themselves. And we need information that we can work from. So thank you for being here. 

I now recognize the ranking member, Mr. Courtney, for any closing remarks that he might have. 

Mr. COURTNEY. Thank you, Mr. Chairman. And at the outset, I 

wanted to make sure, let it be noted, that Chairman Walberg actually gave some mild criticism to the Wall Street Journal, which is 

quite a—and the roof didn’t fall in. So, you know, it was quite a 

moment to witness. 

And, again, I want to thank all the witnesses for their testimony 

here today. And again, I think, you know, there are some—as I 

said at the outset, I mean, I think there are some important questions that we discussed here. Some of which, again, is reflected in 

divided opinions of the circuit courts. And that, you know, is kind 

of interesting to hear about. And again, this question of whether 

or not the—this new program and guidance is being, you know, appropriately implemented. 

Again, I think is something that is of great public interest. And 

Ms. Bone, your testimony today I think really helped us frame this 

the right way. What I—again, am still mystified is that why, you 

know, if we are trying to learn about what is going on in the courts 

or how this guidance is being implemented, why the agency is not 

participating in this hearing is still something that puzzles me. If 

they had been here, as I said, we would have at least had some, 

I think helpful debate about their track record in terms of litigation 

and the process that they use to authorize it. 

I think the statement we have submitted is an attempt to at 

least partially address that point. I think we also would have heard 

about some of the outreach that is going on with business in terms 

of the implementation of the guidance. Again, there have been, I 

think, a bona fide effort to do frequently asked questions. Much 

more intelligible than the regs that were issued. And I completely 

CEWDOCROOM with DISTILLER

227 

agree that sometimes the stuff that comes out of the Federal Register for the average business who is just trying to, you know, 

make a living and sell their product or their service, you know, 

that is very difficult. 

But again, the agency actually has tried to translate that into 

the English language, and actually have held outreach sessions. 

And I think there is some indication, in terms of what the agency 

has been able to tabulate, that there actually has been some takeup in a positive way. 

But again, the—a record has been made here today. And the 

EEOC staff is in the room. And I am sure they are making good 

notes. And hopefully, we will have an opportunity to get, you know, 

some more feedback from the department in terms of steps they 

are taking to make sure that, you know, these—this program is 

being implemented in a thoughtful, common-sense, balanced way. 

And Mr. Lopez, in this comments that I submitted for the record, 

made it clear that, yes, when a court rules against you and imposes 

penalties, that is not—that is something they are paying attention 

to. That is the whole intent of it in terms of when courts do that. 

However, you can’t deny what Ms. Ifill said—that—when your batting average is nine out of 10 for jury trials, there aren’t many trial 

lawyers that can really claim that kind of success rate. 

And so, again, it is a gray area in many of these questions that 

are here today. And it was somewhat helpful to get the—you know, 

very helpful in terms of what the witnesses testified. But again, I 

don’t think it had the right balance, to be perfectly honest. And I 

think that is unfortunate. But again, hopefully, you know, the subcommittee will use this information in a positive way so that I 

think we get to the place where everybody wants to be. Again, the 

witnesses have said they agree with the mission of the agency, 

which is to eradicate discrimination in this country once and for 

all. 

And also to protect people. But we also—it is a balancing act. 

And that is really the never-ending struggle that we have to go 

through. But I do think if there was enough overlap, if you really 

read everybody’s testimony closely, to see that, you know, there 

really is more common ground than, I think, division that is here 

in this room. And, hopefully, in that spirit we can, again, get to the 

place that we all want to be. Which is a society free of discrimination, but that also provides for the public safety of its citizens. 

And with that, I yield back. 

Chairman WALBERG. I thank the gentleman. And I would concur 

that I think there is plenty of agreement in this room. It is the 

process by which we set priorities that move forward. And that is 

the issue. Priorities that go as far as just simple misunderstanding, 

confusion, or disagreement to priorities that deal specifically with 

life and death itself. And that is, of course, our purpose in doing 

oversight in this Subcommittee. 

It will never be perfect, as long as humans are involved with all 

the processes. But we want to move forward. Certainly every American deserves a fair shot at finding a job, every American. Every 

American, regardless of age, disability, sex, religion or race—every 

American deserves a fair shot at finding a job. 

CEWDOCROOM with DISTILLER

228 

And that should be the preeminent responsibility of the EEOC. 

But there are concerns. When we read—let me just read them 

again. The 6th Circuit Court of Appeals recently wrote, as I said 

in my opening statement and I quoted—‘‘EEOC brought this case 

on the basis of homemade methodology, crafted by witnesses’’— 

these are strong words—‘‘crafted by a witness with no particular 

expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one and accepted only by the 

witness himself.’’ 

Another case stated that the EEOC case was a theory in search 

of facts to support it. Doing their basic job is—I don’t think there 

is much disagreement here. But when we see them fishing for opportunities to make a case, that is a concern to us. Humanity and 

its amazing diversity offers challenges that seem to mandate the 

acquiring of good counsel. 

So to hear, subsequent to our hearings when we had Ms. Berrien 

in the room by herself to testify, and subsequently under our questioning and requests—to see those really not dealt with in that ensuing time to the present is a concern. 

To hear that the public, and specifically victims and their families and those with concern, were not brought into the room to give 

valid testimony, to give valid counsel, to give valid direction on 

what is necessary to make this EEOC work well for employer and 

employee alike, that is a concern. And to have guidance that is confusing and out of the realm of reality and what people deal with 

on both sides of the ledger in the real world is a concern to us. And 

so this will continue to be a process. 

This is just the second. And it does give us an indication of what 

could be done if we make this a priority. To do the oversight that 

is necessary, but to do it in a helpful, positive, constructive way to 

move ourselves forward. 

I would also make mention, as my good friend and colleague 

brought up the third or fourth time, as well, that we should have 

had Ms. Berrien in the room again, or EEOC represented again. 

Well, there was the opportunity for the minority to request her to 

testify here. This, again, in our mind was an opportunity to talk 

to the assertions that she had made earlier. 

And I hope that this panel has given that opportunity, and we 

will see, as we move forward, how the EEOC addresses our concerns and addresses the concerns expressed in this Subcommittee 

hearing today. 

Having said that, there being no further business for this Subcommittee the Committee stands adjourned. 

[Additional Submissions by Mr. Courtney follow:] 

CEWDOCROOM with DISTILLER

229 

CEWDOCROOM with DISTILLER


Insert offset folio 65 here 88194.065
230 

CEWDOCROOM with DISTILLER


Insert offset folio 66 here 88194.066
231 

CEWDOCROOM with DISTILLER


Insert offset folio 67 here 88194.067
232 

CEWDOCROOM with DISTILLER


Insert offset folio 68 here 88194.068
233 

CEWDOCROOM with DISTILLER


Insert offset folio 69 here 88194.069
234 

CEWDOCROOM with DISTILLER


Insert offset folio 70 here 88194.070
235 

[Additional Submissions by Olson follow:] 

CEWDOCROOM with DISTILLER

236 

CEWDOCROOM with DISTILLER


Insert offset folio 209 here 88194.209
237 

CEWDOCROOM with DISTILLER


Insert offset folio 210 here 88194.210
238 

CEWDOCROOM with DISTILLER


Insert offset folio 211 here 88194.211
239 

CEWDOCROOM with DISTILLER


Insert offset folio 212 here 88194.212
240 

CEWDOCROOM with DISTILLER


Insert offset folio 213 here 88194.213
241 

CEWDOCROOM with DISTILLER


Insert offset folio 214 here 88194.214
242 

CEWDOCROOM with DISTILLER


Insert offset folio 215 here 88194.215
243 

CEWDOCROOM with DISTILLER


Insert offset folio 216 here 88194.216
244 

CEWDOCROOM with DISTILLER


Insert offset folio 217 here 88194.217
245 

CEWDOCROOM with DISTILLER


Insert offset folio 218 here 88194.218
246 

CEWDOCROOM with DISTILLER


Insert offset folio 219 here 88194.219
247 

CEWDOCROOM with DISTILLER


Insert offset folio 220 here 88194.220
248 

CEWDOCROOM with DISTILLER


Insert offset folio 221 here 88194.221
249 

CEWDOCROOM with DISTILLER


Insert offset folio 222 here 88194.222
250 

CEWDOCROOM with DISTILLER


Insert offset folio 223 here 88194.223
251 

CEWDOCROOM with DISTILLER


Insert offset folio 224 here 88194.224
252 

CEWDOCROOM with DISTILLER


Insert offset folio 225 here 88194.225
253 

CEWDOCROOM with DISTILLER


Insert offset folio 226 here 88194.226
254 

CEWDOCROOM with DISTILLER


Insert offset folio 227 here 88194.227
255 

CEWDOCROOM with DISTILLER


Insert offset folio 228 here 88194.228
256 

[Additional Submissions by Mr. Walberg follow:] 

CEWDOCROOM with DISTILLER

257 

CEWDOCROOM with DISTILLER


Insert offset folio 229 here 88194.229
258 

CEWDOCROOM with DISTILLER


Insert offset folio 230 here 88194.230
259 

CEWDOCROOM with DISTILLER


Insert offset folio 231 here 88194.231
260 

CEWDOCROOM with DISTILLER


Insert offset folio 232 here 88194.232
261 

CEWDOCROOM with DISTILLER


Insert offset folio 233 here 88194.233
262 

CEWDOCROOM with DISTILLER


Insert offset folio 234 here 88194.234
263 

CEWDOCROOM with DISTILLER


Insert offset folio 235 here 88194.235
264 

CEWDOCROOM with DISTILLER


Insert offset folio 236 here 88194.236
265 

CEWDOCROOM with DISTILLER


Insert offset folio 237 here 88194.237
266 

CEWDOCROOM with DISTILLER


Insert offset folio 238 here 88194.238
267 

CEWDOCROOM with DISTILLER


Insert offset folio 239 here 88194.239
268 

CEWDOCROOM with DISTILLER


Insert offset folio 240 here 88194.240
269 

CEWDOCROOM with DISTILLER


Insert offset folio 241 here 88194.241
270 

CEWDOCROOM with DISTILLER


Insert offset folio 242 here 88194.242
271 

CEWDOCROOM with DISTILLER


Insert offset folio 243 here 88194.243
272 

[Whereupon, at 11:13 a.m., the subcommittee was adjourned.] 

Æ 

CEWDOCROOM with DISTILLER