```

[Senate Hearing 113-858]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 113-858

NOMINATIONS OF P. DAVID LOPEZ TO SERVE AS GENERAL COUNSEL AND CHARLOTTE 
   BURROWS TO SERVE AS A MEMBER OF THE EQUAL EMPLOYMENT OPPORTUNITY 
                               COMMISSION

=======================================================================

                                 HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                                   ON

 NOMINATIONS OF P. DAVID LOPEZ, OF ARIZONA, TO BE GENERAL COUNSEL, AND 
               CHARLOTTE A. BURROWS, OF THE DISTRICT OF 
  COLUMBIA, TO BE A MEMBER, BOTH OF THE EQUAL EMPLOYMENT OPPORTUNITY 
                               COMMISSION

                               __________

                           NOVEMBER 13, 2014

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions
                                
                                
                                

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

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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

BARBARA A. MIKULSKI, Maryland			LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington			MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont			RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania		JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina			RAND PAUL, Kentucky
AL FRANKEN, Minnesota				ORRIN G. HATCH, Utah
MICHAEL F. BENNET, Colorado			PAT ROBERTS, Kansas
SHELDON WHITEHOUSE, Rhode Island		LISA MURKOWSKI, Alaska
TAMMY BALDWIN, Wisconsin			MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut		TIM SCOTT, South Carolina	
ELIZABETH WARREN, Massachusetts
                      Derek Miller, Staff Director

        Lauren McFerran, Deputy Staff Director and Chief Counsel

               David P. Cleary, Republican Staff Director

                                  (ii)

                             C O N T E N T S

                               __________

                               STATEMENTS

                      THURSDAY, NOVEMBER 13, 2014

                                                                   Page

                           Committee Members

Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Alexander, Hon. Lamar, a U.S. Senator from the State of 
  Tennessee, opening statement...................................     2
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina.    15
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    18
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky.......    19
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    22

                               Witnesses

Burrows, Charlotte A., Washington, DC............................     4
    Prepared statement...........................................     6
Lopez, P. David, Arlington, VA...................................     7
    Prepared statement...........................................     9

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    .............................................................
    Response by Charlotte A. Burrows to questions of Senator 
      Alexander..................................................    28
    Response by P. David Lopez to questions of:
        Senator Alexander........................................    30
        Senator Isakson..........................................    33
        Senator Paul.............................................    34

                                 (iii)

  

 
NOMINATIONS OF P. DAVID LOPEZ TO SERVE AS GENERAL COUNSEL AND CHARLOTTE 
   BURROWS TO SERVE AS A MEMBER OF THE EQUAL EMPLOYMENT OPPORTUNITY 
                               COMMISSION

                              ----------                              

                      THURSDAY, NOVEMBER 13, 2014

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 3:30 p.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
chairman of the committee, presiding.
    Present: Senators Harkin, Alexander, Franken, Murphy, Paul, 
Hatch, and Scott.

                  Opening Statement of Senator Harkin

    The Chairman. First of all, I apologize for being late--
just a vote and some other action. We welcome everyone here. 
Today, our committee will hold a nomination hearing for 
Charlotte Burrows to be a commissioner on the Equal Employment 
Opportunity Commission and David Lopez to be the EEOC General 
Counsel.
    Throughout my career, I have been guided by the vision of 
an America that is compassionate, just, and inclusive, a 
society where the government provides a ladder, or sometimes a 
ramp, of opportunity that will give all people equal access to 
the American dream. But that ladder cannot function properly if 
there are barriers of discrimination that unfairly limit 
opportunities for some Americans to fully participate in the 
social, political, and economic life of our country.
    Over the last 45 years, we have made great strides toward 
eliminating discrimination in the workplace. The Civil Rights 
Act of 1964 prohibited discrimination on the basis of race, 
sex, national origin, and religion. The Age Discrimination in 
Employment Act, in 1967, prohibited discrimination on the basis 
of age. The Americans with Disabilities Act, in 1990, and the 
ADA Act Amendments of 2008 prohibited discrimination on the 
basis of disability.
    These important guarantees, however, are not self-
enforcing. They're only as strong as the agency charged with 
enforcing them, and that's the EEOC. The EEOC's mission is 
simple: to promote equality of opportunity in the workplace and 
enforce Federal laws prohibiting employment discrimination.
    While much progress has been made in recent decades, 
discrimination in the workplace continues to be all too common. 
Too many employment decisions are based on insidious 
stereotypes and prejudices rather than an employee's talent, 
ability, and qualifications. Too many hardworking Americans 
face the harsh reality of getting a pink slip or not being 
hired at all because of race, sex, national origin, religion, 
age, disability, or some other irrelevant factor.
    The problem is especially pronounced for individuals with 
disabilities. Less than 30 percent of working-age Americans 
with disabilities participate in the workforce Think about 
that. People are always talking about the unemployment rate is 
now 5.8 percent. Among African Americans, it's about twice 
that. And people bemoan that and say, ``We've just got to 
reduce unemployment.''
    Think about this. Over 60 percent of people with 
disabilities who can work and want to work are not employed. 
Think about that as a figure for unemployment--two-thirds. 
Households with an adult member with a disability earn 38.4 
percent less than households without an adult member with a 
disability. So it's income discrimination, too. These facts 
make it clear that people with disabilities are still 
encountering road blocks, and that the ADA's goal of economic 
self-sufficiency is far from being achieved.
    While I am optimistic that our amendments to the 
Rehabilitation Act, contained in the Workforce Innovation and 
Opportunity Act of 2014--by the way, I might just say that we 
wouldn't have gotten there without the great help, assistance, 
and support, advice, and consultation of our Ranking Member, 
Senator Alexander. We worked 5 years on that bill, and we 
finally got it through.
    But contained within that are some parts that will help us 
make great progress in the future for people with disabilities. 
The EEOC will always have an important role to play in 
combating discrimination and supporting employment 
opportunities both for individuals with disabilities and, of 
course, all Americans.
    Unfortunately, today's EEOC faces enormous challenges. The 
Agency has a substantial backlog of almost 71,000 cases, and it 
takes an average of 267 days to process a discrimination claim. 
And as we know, all too often, justice delayed is justice 
denied.
    American workers deserve better, especially in these times 
of economic turmoil, when discrimination often increases and 
workers who are victims of discrimination face even greater 
challenges. Now more than ever, we need strong leadership at 
the EEOC. Both of our nominees are extremely well qualified and 
have a commitment to public service. They possess the 
extraordinary skills and experience that will help them advance 
the EEOC's mission and ensure proper enforcement of some of our 
most important laws.
    I look forward to working with Senator Alexander to move 
these nominees quickly so they can get to work ensuring 
fairness and equal opportunity for every American worker.
    With that, I recognize our Ranking Member, Senator 
Alexander.

                 Opening Statement of Senator Alexander

    Senator Alexander. Thank you, Mr. Chairman, and welcome to 
the committee.
    In 1963, I stood with a lot of other people on the National 
Mall and heard Dr. King's speech in August of that year, ``I 
Have a Dream.'' This Agency was the result of the Civil Rights 
Act of 1964 that came the next year, and it's very important in 
our American life. The EEOC receives complaints of 
discrimination and is charged with investigating those 
complaints to determine whether or not they have merit, and 
then attempting to resolve them informally through conciliation 
and mediation. That's the charge.
    I have two primary concerns with the EEOC. First, I believe 
the EEOC has placed too much emphasis on litigating high 
profile lawsuits and too little emphasis on dealing with the 
complaints that have been filed, creating a huge backlog of 
complaints about discrimination. Second, I don't believe that 
the Commission has been as transparent as it ought to be in 
terms of the guidance it issues and its activities. Let me 
explain a little about that, and then I'll ask questions about 
that.
    The litigation strategy the EEOC is using today is time-
consuming, costly, and ought to be the last resort. Last year, 
more than 93,000 charges of discrimination were filed with the 
EEOC. About 3,000 of those came from Tennessee. EEOC reports 
that 70,000 of the 93,000 charges are unresolved and still 
pending.
    A backlog of charges pending is nothing new for the EEOC. 
So why not spend the time and money you're spending on these 
high profile lawsuits instead on resolving actual complaints 
that are filed and are part of the backlog. This desire to win 
big lawsuits has backfired. Numerous Federal courts have 
criticized the EEOC's litigation practices. An example is the 
Kaplan Higher Education Corporation suit. EEOC brought a case 
and received a sharp rejection by a unanimous three-judge panel 
in the 6th Circuit Court of Appeals. The Wall Street Journal 
named it the ``Opinion of the Year.''
    Here's what the court 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.''

That's embarrassing, to bring a case like that and have a court 
unanimously say that.
    The court also criticized EEOC for bringing a case against 
Kaplan for using the same type of background check that the 
EEOC itself uses. EEOC has been ordered to pay attorney's fees 
in 10 different cases. In six cases, fees were awarded under a 
rare provision in Title VII of the Civil Rights Act, which is 
reserved for cases that are, ``frivolous, unreasonable, and 
without foundation,'' or ``continued to be litigated'' after 
those circumstances became present. That's embarrassing, too.
    This costs taxpayers money. It hurts the victims of 
workplace discrimination. I believe the Commission has 
exercised too little restraint over the General Counsel. I 
believe the EEOC should immediately reconsider the strong 
emphasis on lawsuits which are not based on any complaint and 
do not even have a victim plaintiff.
    In recent years, the general counsel has pursued a number 
of cases without complaints, such as age discrimination cases 
against large accounting firms whose partners have voluntarily 
adopted a mandatory retirement age. It's hard to imagine why 
you would spend time on that when you have a 70,000 backlog of 
actual cases of discrimination that are unresolved.
    I am also concerned about the lack of transparency in 
guidance. What I mean is whether you allow the public to 
comment on the proposed guidance.
    Finally--and I'll ask a question about this--in the 
Affordable Care Act, there wasn't much bipartisan about it. But 
one bipartisan idea was to encourage wellness. We heard 
testimony in both the Democratic caucus and the Republican 
caucus from Safeway and other companies that encourage healthy 
behaviors in their companies by saying you'll have cheaper 
insurance if you lead a healthy lifestyle.
    The Obama administration had regulations from Treasury, 
Labor, and HHS that were working just fine until administration 
officials rewrote them and made it more complicated to have 
wellness plans. The EEOC has not yet issued regulations about 
what its attitude will be, yet it's suing companies who are 
trying to follow the spirit, I think, of the Affordable Care 
Act on wellness. So I want to ask about that when my time 
comes.
    Thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Alexander.
    We have two excellent nominees with us today. First, we 
have Charlotte Burrows, nominee to be a commissioner on the 
EEOC. Ms. Burrows currently serves as Associate Deputy Attorney 
General at the Department of Justice. Prior to that, she served 
as General Counsel for civil and constitutional rights to 
Senator Edward Kennedy on the Senate Committee on Health, 
Education, Labor, and Pensions--I've heard of that committee--
and also the Judiciary Committee.
    She also worked in the Civil Rights Division as a trial 
attorney, and clerk for Hon. Timothy K. Lewis for the U.S. 
Court of Appeals for the 3rd Circuit. She received an A.B. from 
Princeton University and J.D. from Yale Law School.
    Next is Mr. David Lopez, who is nominated for a second term 
as General Counsel of the EEOC. Mr. Lopez has been General 
Counsel since 2010. Prior to that, he served at the EEOC in 
various capacities for two decades. Mr. Lopez received a B.S. 
from Arizona State University and a J.D. from Harvard Law 
School.
    We welcome you both here. Both of your testimoneys will be 
made a part of the record in their entirety, and if you can sum 
up your testimony in 5 minutes or so, then we'll get to some 
questions.
    Ms. Burrows, would you please start? Welcome.

       STATEMENT OF CHARLOTTE A. BURROWS, WASHINGTON, DC

    Ms. Burrows. Certainly, Senator. Good afternoon and thank 
you.
    And thank you also, Ranking Member Alexander, for your time 
here today.
    It's an honor to be here in this committee that meant so 
much to my former boss, Senator Kennedy. I would like to thank 
the President for this nomination and to express my deep and 
abiding appreciation for the support of my family, friends, and 
colleagues, some of whom are here today. With indulgence, I 
would like to introduce a few of them.
    My father, Dr. Rodney Burrows, who as a former veteran and 
a former political science professor, instilled in me a respect 
both for our American democracy and for this committee, this 
body. I would also like to introduce my uncle, John C. Honor, 
and my aunt, Vivian Honor, my cousins, Jennifer and John Honor, 
III, and John's wife, JeVon Honor. My thanks as well to my 
brother, Bruce Burrows, and my sister, Dr. Stephanie Burrows, 
for their support and good wishes.
    The Chairman. That's quite a family. Welcome. I'm glad 
you're all here. Thank you.
    Ms. Burrows. And my husband, Tilman Wuerschmidt, and my 
son, Cy Alan Wuerschmidt, as well as Toni, my sister-in-law, 
and Ben and Beyorn Burrows.
    In the 50 years since the Equal Employment Opportunity 
Commission was established, America has made great progress 
toward achieving the goal of equal employment opportunity. 
Women are not only entering the workforce in greater numbers, 
but increasingly are doing so in positions of leadership.
    Thanks in large part to the landmark Americans with 
Disabilities Act, which Chairman Harkin was so instrumental in 
passing, new doors of opportunity are open to persons with 
disabilities. More workers than perhaps ever before can be 
confident that they are judged by their merit and not by their 
race, color, national origin, sex, religion, disability, or 
some other irrelevant factor like genetic information.
    Despite that progress, unfortunately, we have yet to fully 
eliminate prejudice and discrimination from the workplace, and 
the EEOC's mission remains critical. For workers and their 
families, effective enforcement of our Nation's civil rights 
laws is vital to ensuring they have an equal opportunity to 
work hard, succeed, and provide for their children.
    Our Nation is strongest when everyone is included and 
everyone has a chance to contribute. Only when we completely 
eliminate discrimination from the workplace will our economy 
have the full benefit of the many diverse talents of American 
workers.
    Quality enforcement is also important for our Nation's 
businesses, the vast majority of which not only comply with the 
law, but are at the forefront of ensuring fairness in the 
workplace. Employers have a great deal of experience about what 
works to achieve equal job opportunity, and I view the business 
community as a critical partner in the Commission's work. If 
confirmed, I look forward to working with all members of the 
Commission and all interested parties, including this 
committee, on our common goal of equal employment opportunity.
    In my current role as Associate Deputy Attorney General, 
part of my job has been to address employment issues both in 
terms of the Federal Government's role in protecting workers 
and also its status as one of America's largest employers. As 
such, I must often coordinate with and sometimes mediate 
between Department litigators who bring plaintiff-side job 
discrimination cases and those who defend Federal agencies when 
they are sued as employers. That role has given me insight into 
the needs and perspectives of both employers and workers and 
has strengthened my conviction that there is almost always room 
for common ground between the two.
    Mr. Chairman, I am honored to be considered for this 
position and for the opportunity to assist in the Commission's 
critical work. For nearly my entire professional career, I have 
either worked with the EEOC or sought to enforce or improve the 
statutes it administers as a career Justice Department 
litigator in both Republican and Democratic administrations, as 
a Senate staffer, and in my current role in the Deputy Attorney 
General's Office at the Department of Justice.
    I also have been privileged to work with many of you or 
your staffs to further the cause of equal employment 
opportunity. If confirmed, I hope to continue that important 
work.
    I thank the committee for your time and look forward to 
your questions.
    [The prepared statement of Ms. Burrows follows:]

               Prepared Statement of Charlotte A. Burrows

    Good afternoon, Chairman Harkin, Ranking Member Alexander, and 
distinguished members of the committee. It is an honor to appear before 
this committee, which meant so much to my former boss, Senator Kennedy.
    I would like to thank the President for this nomination and to 
express my deep and abiding appreciation for the confidence and support 
of my family. Some of them are here today, including my father, Dr. 
Rodney Burrows, who as both a veteran and a former political science 
professor, helped instill in me respect for our American democracy and 
the importance of this body. I would also like to introduce my uncle, 
John C. Honor, Jr., and my aunt, Vivian Honor. My thanks as well to my 
brother, Bruce Burrows, and my sister, Dr. Stephanie Burrows, for their 
support and good wishes. The experience of growing up as the middle 
child between two very different, opinionated and incredibly 
intelligent siblings helped me to see others' perspectives, to 
negotiate, and to look for opportunities for compromise--skills that 
will be useful if I am fortunate enough to be confirmed. I'd also like 
to introduce my husband, Tilman Wuerschmidt and my son, Cy Alan 
Wuerschmidt, and to thank them--although words can in no way fully 
express the debt I owe--for their love, patience, support and many 
sacrifices throughout my career in public service.
    In the 50 years since the Equal Employment Opportunity Commission 
was established, America has made great progress toward achieving the 
goal of equal employment opportunity. Women are not only entering the 
workforce in greater numbers, but increasingly are doing so in 
positions of leadership. Thanks in large part to the landmark Americans 
with Disabilities Act, which Chairman Harkin was instrumental in 
passing, new doors of opportunity are open to persons with 
disabilities. More workers than perhaps ever before can be confident 
that they will be judged on their qualifications and performance, not 
their race, color, national origin, sex, religion, disability, age or 
genetic information.
    Despite that progress, unfortunately, as a society, we have yet to 
completely eliminate prejudice and discrimination from the work place, 
and the EEOC's mission remains critical. For workers and their 
families, effective enforcement of our Nation's civil rights laws is 
vital to ensuring they have an equal opportunity to work hard, succeed, 
and provide for their children. Our Nation is strongest when everyone 
is included, and everyone has a chance to contribute. Until we 
completely eliminate the barriers of discrimination from the workplace, 
our economy will continue to be deprived of the full benefit of the 
many, diverse talents of American workers.
    Quality enforcement is also important for our Nation's businesses, 
the vast majority of which not only comply with the law, but have been 
at the forefront of ensuring fairness in the workplace. Employers have 
a great deal of expertise about what works to achieve equal job 
opportunity, and I view the business community as a critical partner in 
the Commission's work.
    If confirmed, I look forward to working with all members of the 
Commission and all interested parties, including this committee, on our 
common goal of equal employment opportunity. In my current role as 
Associate Deputy Attorney General, part of my job has been to address 
employment issues both in terms of the Federal Government's role in 
protecting workers and its status as one of America's largest 
employers. As such, I must often coordinate with--and sometimes mediate 
between--Department litigators who bring plaintiff-side job 
discrimination cases, and those who defend Federal agencies when they 
are sued as employers. That role has given me insight into the needs 
and perspectives of both employers and workers, and strengthened my 
conviction that there is almost always room for common ground between 
the two.
    Mr. Chairman, I am honored to be considered for this position and 
for the opportunity to assist the Commission in its critical mission. 
For nearly my entire professional career, I have either worked with the 
EEOC or sought to enforce or improve the statutes it administers--as a 
career Justice Department litigator in both Republican and Democratic 
administrations, as a Senate staffer, and in my current role in the 
Deputy Attorney General's Office at the Department of Justice.
    I also have been privileged to work with many of you or your staffs 
to further the cause of equal opportunity. If confirmed, I hope to 
continue that important work.
    I thank the committee for your time and look forward to your 
questions.

    The Chairman. Thank you very much, Ms. Burrows. Welcome 
back to your home base here in this hearing room.
    Ms. Burrows. Thank you.
    The Chairman. Next is Mr. David Lopez.
    Mr. Lopez, first of all, before you speak, I want to thank 
you. You and I have had dealings in the past.
    Mr. Lopez, along with his attorneys in Houston, TX.
    Mr. Lopez. Yes.
    The Chairman [continuing]. Brought a case--and, again, this 
was not a case where someone had made a complaint. These were 
individuals with disabilities, intellectual disabilities, who 
had been hired by a service in Texas and shipped up to Iowa to 
work in a poultry processing plant. Some of them had worked 
there for as much as 20 years, if I'm not mistaken, right 
alongside people without disabilities, people who were making 
$8, $9, $10 an hour, and they were making 50 cents an hour and 
were housed in horrible conditions with nothing to show for it.
    That case was brought, and if I'm not mistaken, it's still 
the largest judgment ever obtained by the Federal Government 
against an entity.
    I want to thank you for your leadership on that. I think 
what that case showed the Nation was that discrimination 
against people with disabilities is embedded around this 
country, and it showed that even in this day and age, there are 
unscrupulous people who will take advantage of the poor and 
disabled and put them in these kinds of working conditions. As 
I said, it wasn't that someone filed a complaint. It was 
through investigations that this was found.
    I want to put that on the record. I remember that case very 
well because it happened in Iowa, and it really, I think, 
opened a lot of eyes as to what was happening to people with 
disabilities in our workplaces.
    I thank you for your leadership on that, Mr. Lopez. Again, 
your statement will be made a part of the record, and if you 
could please take 5 minutes and sum it up, I'd appreciate it.

           STATEMENT OF P. DAVID LOPEZ, ARLINGTON, VA

    Mr. Lopez. Thank you, Chairman Harkin. Chairman Harkin, 
Ranking Member Alexander, members of the committee, first of 
all, I am honored and humbled to have been re-nominated by 
President Obama for the position of General Counsel.
    I would like to start out by introducing my family, Maria 
Leyva, my wife of nearly 25 years, my sons, Javier, Julian, and 
Luis. Javier is working today. They are quite simply my heart 
and the reason I get up in the morning.
    As Chairman Harkin stated in his introduction, I am a 
longtime public servant. I joined the Federal Government in 
1991, first at the U.S. Department of Justice Civil Rights 
Division, and then at the Equal Employment Opportunity 
Commission. Over more than two decades of public service, I 
have proudly been part of this country's longstanding bi-
partisan commitment to ensuring equal employment opportunity.
    When President Obama nominated me in 2009 to be EEOC's 
General Counsel, I observed firsthand that civil rights are not 
a partisan issue, but an American promise. This year we have 
celebrated the 50th anniversary of the Civil Rights Act of 
1964, including Title VII, a law that has enabled countless 
individuals to unleash their potential and productivity, and 
it's fitting that we're here in the Dirksen Building.
    The EEOC is a small agency with a big mission: to eradicate 
employment discrimination. It is truly a little agency that 
could.
    As general counsel, I run the Commission's litigation 
program, overseeing the agency's 15 Regional Attorneys and a 
staff of more than 325 lawyers and legal professionals across 
the country. As I state in my written testimony, I have 
developed compelling critical cases which we successfully 
resolved at more than a 90 percent rate, and when unable to 
resolve, went frequently in front of juries.
    We have filed litigation consistent with the guidelines set 
forth by the Commission to govern the delegation of litigation 
authority, and I hope to have fostered a culture of 
inclusiveness and transparency, encouraging our litigators 
nationwide to operate more collaboratively with each other, 
other internal partners, as well as with the bar and management 
groups.
    In significant part due to our trial and appellant 
successes, I was honored to be named by the National Law 
Journal earlier this year as one of America's 50 outstanding 
general counsel. I was one of only a small number of public 
attorneys to have received this award. The National Law Journal 
recognized me for the dedicated and talented work of my staff 
across the country and the successful litigation program by any 
metric.
    In accepting this award, I am keenly mindful of the 
profound impact our work has and our decisions have on 
companies and workers across the country. These lawsuits often 
stop longstanding discriminatory practices and provide relief 
to the victims of discrimination.
    You mentioned, Senator, our landmark $240 million trial 
verdict in Davenport, IA, on behalf of 32 intellectually 
disabled workers. These workers had been brought to Iowa to 
work at a turkey evisceration plant. During their employment, 
they were housed in an old schoolhouse where they were denied 
access to medical care. They were subject to verbal abuse and 
sometimes physical abuse. The jury sent the strong verdict that 
this type of conduct is unacceptable in this country or 
anywhere in the world.
    This victory was personally gratifying for me. As general 
counsel, I have made robust enforcement of the Americans with 
Disabilities Act a top priority. And, indeed, I have submitted 
a list of cases that we brought. We brought and successfully 
resolved numerous cases on behalf of individuals with cancer, 
diabetes, epilepsy, and other conditions difficult to cover 
prior to the enactment of this Act. We have also successfully 
brought and resolved our first cases under the Genetic 
Information Nondiscrimination Act.
    In addition to this area of our responsibility, we have a 
powerful story to tell in many areas. This includes combating 
sex discrimination in traditionally male professions, combating 
egregious racial harassment, blatant pregnancy discrimination, 
and persistent religious discrimination. We have been 
successful in the courts in securing victories and setting 
forth important legal principles.
    While it's my job as general counsel to be the Agency's 
chief litigator, and the statute provides me with the authority 
to conduct litigation, let me be clear. I believe litigation 
should be the enforcement tool of last resort. I strongly 
support the agency's efforts to eradicate discrimination 
through policy guidance, voluntary compliance, and public 
outreach.
    Let me close with some words about our incredible career 
staff. This past spring, the New York Times ran a story about 
the men who worked at Henry's Turkey and how they had been all 
but forgotten for years. The article referred to Robert Canino, 
our wonderful regional attorney from Dallas and the career 
commission lawyer who brought this case. The story stated that 
Robert was the ``last best hope for justice'' for those 
discrimination victims.
    As both an EEOC trial attorney and more recently as General 
Counsel, I have personally seen the dedication and skills of 
these amazing civil servants. Over the past 4 years, they have 
faced a hiring freeze, significant attrition among their ranks, 
and furloughs. Yet these professionals have remained steadfast, 
thoroughly committed to bringing equal employment opportunities 
for all. They embody the finest and highest ideals of public 
service, and I am proud to serve with each and every one of 
them.
    Thank you. I would be happy to answer any questions.
    [The prepared statement of Mr. Lopez follows:]

                  Prepared Statement of P. David Lopez

    Good afternoon, Chairman Harkin, Ranking Member Alexander, members 
of the committee.
    My name is David Lopez and I am honored and humbled to have been 
nominated to serve another term as the General Counsel of the U.S. 
Equal Employment Opportunity Commission (EEOC).
    I have served in the Federal service since 1991, first at the U.S. 
Department of Justice Civil Rights Division, and then at the Equal 
Employment Opportunity Commission. Over my more than two decades of 
public service, I have proudly been part of this country's longstanding 
bi-partisan commitment to ensuring equal employment opportunity without 
regard to race, color, gender, religion, national origin, disability, 
age or genetic information.
    When President Obama nominated me in 2009 to be the EEOC's General 
Counsel, I had served in the career civil service under Republican and 
Democratic administrations. Throughout my tenure I have observed 
firsthand that civil rights are not a partisan issue, but an American 
promise. This year we have celebrated the 50th anniversary of the Civil 
Rights Act of 1964, including Title VII--one of the most transformative 
pieces of legislation in the country's history. Along with subsequent 
legislation targeting discrimination on other traits like age and 
disability, it has enabled countless individuals to unleash their 
potential and productivity, in turn helping to drive our Nation's 
economic engine.
    The EEOC is a small agency with a big mission--to stop and remedy 
unlawful employment discrimination. To that end, the Agency has carried 
out its mission consistently and dutifully, decade after decade.
    We start with prevention, issuing policy guidance designed to 
explain employer responsibilities and employee rights under the laws we 
enforce. We receive and investigate nearly 100,000 private-sector 
charges per year and resolve the vast majority of them informally, in 
mediation or conciliation. We devote enormous attention and resources 
to public outreach and education across the country. When these tools 
do not work, we also are statutorily directed to file suit to enforce 
the laws in Federal court.
    As general counsel, I run the Commission's litigation program, 
overseeing the Agency's 15 Regional Attorneys and a staff of more than 
325 lawyers and legal professionals who conduct or support Commission 
litigation in district and appellate courts throughout the Nation.
    The public-interest litigation the EEOC chooses to pursue provides 
a unique deterrent to unlawful discrimination, both for the specific 
defendant and also for the larger community. And they help inform our 
tremendous efforts at conciliation and early resolution.
    Take, for instance, the landmark $240 million trial verdict in 
Davenport, IA on behalf of 32 intellectually disabled workers. These 
workers had been brought to Iowa to work at a turkey evisceration 
plant. During their employment, they were housed in an old schoolhouse 
in Muscatine, IA where they were deprived of access to medical care, 
and subjected to verbal and sometimes physical abuse. This one lawsuit 
may have done more than we can ever know to convey the warning of 
``never again.'' This particular piece of litigation filed by the 
Commission solely to serve the public interest served as a clarion 
call: That discrimination because of disability cannot and will not 
stand in Muscatine, anywhere in Iowa, or anywhere in this great 
country.
    We are, of course, proud of the success we've been able to achieve 
through litigation on behalf of our charging parties. Some of our 
proudest victories for American workers include a case out of Georgia, 
where we were able to win a victory for a woman unlawfully denied a 
supervisory position because of her sex and cases out of Tennessee, 
North Carolina, and Texas, involving employees subjected to egregious 
harassment based on sex or race. During my tenure, I am proud that we 
have been able to prevail on behalf of charging parties in more than 60 
percent of our jury trials, including 11 of our last 15.
    We also have obtained landmark victories in the appellate courts. 
For example, in Houston Funding, a panel of the Fifth Circuit issued a 
landmark--but common-sense-ruling recognizing that discrimination 
against a woman because she is lactating is discrimination ``because of 
sex'' in violation of Title VII and the Pregnancy Discrimination Act. 
Additionally, we prevailed before the U.S. Court of Appeals for the 
Fourth Circuit in our action against Baltimore County, where the 
appeals court agreed with our position that making older workers 
contribute more to their pensions violates the Age Discrimination in 
Employment Act.
    As general counsel, I have made robust enforcement of the Americans 
with Disabilities Act a top priority. Indeed, when I appeared before 
this committee more than 4 years ago I vowed that one of my main goals 
upon confirmation would be to breathe full life into the recently 
enacted Americans with Disabilities Act Amendments Act (ADAAA). This 
would be one of my main goals upon confirmation.
    As Chairman Harkin and members of this committee know well, under 
the ``old'' ADA, vindicating the rights of people with conditions such 
as diabetes or epilepsy (and sometimes even cancer) used to be 
virtually impossible. This had been one of my greatest frustrations 
over the many years I was in the trenches as an EEOC trial attorney. It 
was difficult to rectify glaring disability-based discrimination, even 
in cases where the employer admitted to discriminating based on the 
worker's medical condition.
    But Senators, I am pleased to say that today, in light of your 
efforts in passing the ADAAA, that we have been successful where before 
success had eluded us. We now have brought and successfully resolved 
numerous cases on behalf of individuals with cancer, diabetes, 
epilepsy, intellectual disabilities, and other conditions difficult to 
cover prior to the passage of this Act. We have also successfully 
brought and/or resolved the first cases under the Genetic Information 
Nondiscrimination Act (``GINA'').
    In addition, in virtually every area under our purview--for 
instance, in combating sex discrimination in hiring in male dominated 
professions, or egregious overt racial harassment--we have a powerful 
story to tell. We have successfully prosecuted a multitude of sex-
discrimination cases, including many involving blatant and unabashed 
pregnancy discrimination. I've observed that, more than 25 years after 
passage of the Pregnancy Discrimination Act, pregnancy-related 
discrimination continues to be among the most overt forms of 
discrimination we encounter. Fortunately, our litigation efforts in 
this area have had enormous impact for these women and their families.
    We have also vigorously prosecuted cases based on religious 
discrimination. The Supreme Court recently granted our petition for 
certiorari in our ongoing lawsuit against Abercrombie and Fitch. With 
this case, to be heard this term, the Court will examine Title VII's 
requirement that companies reasonably accommodate workers' religious 
beliefs and practices. A group of seven broad-ranging religious groups 
filed an amicus brief in support of our cert petition. This case 
illustrates the commitment the EEOC has to protecting the religious 
exercise of all Americans and underscores the singular role that the 
EEOC's public-interest litigation can play in helping to clarify the 
law, and thus, in ultimately bringing greater certainty about legal 
obligations and rights for employers and employees alike.
    While it's my job as General Counsel to be the Agency's chief 
litigator, let me be clear: I believe litigation should be the 
enforcement tool of last resort. I do not believe in suing first, and 
asking questions later. During my tenure as GC, I have focused on 
developing and filing critical cases, particularly those that further 
the public interest. Indeed, during the past 4 years the number of 
merits lawsuits we've filed has actually dropped. In fiscal year 2013, 
for instance, we litigated on the merits only .0014 percent of all 
charges filed. That is about one lawsuit for every 1,000 charges. We 
carefully and deliberately vet our litigation vehicles to ensure 
effective enforcement nationwide and across the statutes. And we seek 
approval from the Agency's Commissioners--by law, a bipartisan group--
consistent with the guidelines the Commission itself has adopted to 
govern the delegation of litigation authority.
    It bears emphasizing that we end up successfully resolving more 
than 90 percent of the cases we do file. In practice, this means we are 
able to secure victim specific relief and, as importantly, non-monetary 
relief such as policy changes and training to ensure the conduct does 
not recur in the vast majority of our cases. We achieve all this 
without protracted and unnecessary litigation.
    More generally, I have inculcated a culture of inclusiveness and 
transparency. More than 4 years ago I talked about fostering a 
``culture of collaboration.'' True to my pledge, I have cultivated 
``One National Law Enforcement Agency,'' encouraging our litigators 
nationwide to operate more collaboratively and cohesively with each 
other and other internal partners. This good-government approach has 
contributed to many of the successes mentioned above. Further, this One 
National Law Enforcement Agency model has spread beyond the litigation 
program; it is embodied in the Agency's current Strategic Enforcement 
Plan which enshrines an integrated, cross-functional approach, breaks 
down silos, and helps ensure we do not reinvent the wheel or repeat 
mistakes.
    As general counsel, I, along with those under my direction, 
actively and enthusiastically support the Agency's non-litigation 
enforcement efforts. During my tenure as General Counsel, I believe I 
personally have engaged in unprecedented levels of outreach to various 
stakeholder groups across the country, including to bar and management 
groups. For instance, I have appeared at 7 events over the past 2 
months alone where I addressed members of the bar and business 
community. As I say often at these events, I operate from the premise 
that the vast majority of employers seek to comply voluntarily with the 
law and often will take steps beyond the minimal legal requirements to 
ensure inclusive and fair workplaces.
    Let me close with some words about our incredible career staff. 
This past spring, the New York Times ran an abovefold story about the 
men who worked at Henry's Turkey, and how they had been all but 
forgotten for years. The article referred to Robert Canino--our 
wonderful Regional Attorney from Dallas and the career Commission 
lawyer who developed and tried the case. The story stated that Robert 
was the ``last best hope for justice'' for those discrimination victims 
in Muscatine. That's all in a day's work for EEOC litigators like 
Robert.
    I was honored to be named by the National Law Journal earlier this 
year as one of America's 50 Outstanding General Counsel, but that award 
really belongs to my dedicated colleagues at the EEOC who inspire me 
every day. I have seen up close and personal the unparalleled 
dedication and skill of these amazing civil servants. Over the past 4 
years they have faced a hiring freeze, significant attrition among 
their ranks, and furloughs. Yet these professionals, who doubtless 
could pursue other, more lucrative career options, have remained 
steadfast throughout, more committed than ever to bringing equal 
employment opportunities for all. They embody the finest and highest 
ideals of public service. And I'm proud to serve with each and every 
one of them.
    Thank you and I would be happy to answer any questions.

    The Chairman. Thank you very much, Mr. Lopez.
    Let me start a round of 5-minute questions, I guess for 
both of you, but Mr. Lopez first since you're on the EEOC. But 
the EEOC has done an excellent job, I believe, of reaching out 
to the business community and giving employers guidance to help 
them comply with the law. You mentioned in your remarks, in 
your written statement, that suing is the last resort that you 
want to do. And many of these things are just solved with 
conciliation and mediation and that type of thing and guidance 
directives.
    Can you tell us what types of outreach to the business 
community the EEOC has done, and are there more that the agency 
should be doing or could be doing?
    Mr. Lopez. One thing that is important about the Agency's 
recent strategic enforcement plan is it hopes to make sure that 
we use all the tools available to us to eradicate 
discrimination--policy, public education, voluntary 
compliance--and when those don't work, litigation. I've been 
strongly supportive of all those efforts of the Commission 
throughout my tenure.
    I think the Commission's performance in this area is 
certainly reflected in its increasingly successful conciliation 
rate, and you see the Commission conciliating cases at a much 
greater rate over the last 4 years. In voluntary resolution of 
these cases, voluntary compliance, and by any metric, the EEOC 
has been incredibly successful.
    Let me talk a little bit about public outreach. I can't 
prove this, Senator, but I do believe, because I've been told 
by my career staff, that I conduct more outreach than any of my 
predecessors. I speak frequently across the country to employer 
groups, to bar groups. Over this past couple of months, I've 
been to North Carolina, actually three times, Alabama, and 
Florida, speaking to management groups, talking about the work 
that we do.
    When I go there, I tell them at every single whistle stop 
that I operate from the premise--even on the chief lawyer, I 
operate from the premise that the vast majority of employers 
want to voluntarily comply with the law, and they want to 
satisfy the requirements of the law. I go there and I answer 
the questions, and I answer the hard questions about the work 
we do, and I learn so much from them that I am able to roll 
back into the effectiveness of the program.
    Outreach is very, very important, and it's something that 
I've dedicated an enormous effort to. But I will say it's not 
just me. It's the entire Commission. The Commission has 
individuals who conduct outreach, reach out to groups. It has a 
small business task force. The Commission has been tremendously 
successful in terms of talking about the work that we do and 
educating employers as to their responsibilities and employees 
as to their rights. It's a big part of what we do, and it's 
something that I support, not only in theory but in action.
    The Chairman. Thank you.
    Ms. Burrows, you're going on the Board, I hope, soon. And 
nationally and in Iowa, the average woman working full time 
year round is still earning about 77 cents on the dollar of 
what a man makes. I think that's terrible for families, but 
it's also terrible for our economy.
    In your estimation, what could EEOC do to help stamp out 
sex discrimination in the workplace? What kind of a vision 
would you have for the EEOC in addressing this issue?
    Mr. Burrows. Senator, thank you for the question. I think 
equal pay issues are enormously important, obviously, as the 
country is coming off of some tough economic times, too, so 
even more than ever. There are a number of statutes that are 
already on the books--but to really sort of take a look first 
at what the current enforcement has been in that area, because 
I think it should be, obviously, a priority.
    For me, the first thing I would want to do is learn more 
about what the Commission is doing currently on that and seek 
the views of my colleagues because as you force something 
toward a priority, then you obviously have resource issues for 
others to sort of see how that plays together. Really to take 
some time and look at the charges, what kinds of problems are 
out there, because sometimes as you look at charges, you can 
also find some things that either through guidance or other 
approaches will allow you to do something that takes a broader 
swath.
    But in the first instance, I think it is something that we 
would need to take a close look at what has been the 
achievement so far and the views about how to move it forward. 
But I agree with you. It is a huge issue.
    The Chairman. Thank you both very much. My time is up.
    Senator Alexander.
    Senator Alexander. Thank you.
    Mr. Lopez, is a mandatory retirement agreement in an 
accounting firm age discrimination?
    Mr. Lopez. A mandatory retirement agreement, as a general 
matter, can be age discrimination. But there's a question as to 
whether the business is covered, whether the individuals in the 
accounting firm are partners who function as owners of the 
company, or whether they are employees of the company. The EEOC 
has set forth guidance on this that talks about at what stage--
how you assess whether the individual has sufficient control to 
be an owner as opposed to an employee.
    Senator Alexander. If he's an owner, is it age 
discrimination?
    Mr. Lopez. If the individual is an owner, the individual is 
not covered by the Act, not protected by the Act.
    Senator Alexander. Not covered by the Act.
    Mr. Lopez. And let me say, Senator, if I may, we're not 
just talking about the Age Discrimination Act. If there's a 
partner, and the partner functions as an owner, then that 
individual would not be covered by the Age Discrimination Act 
or any of the anti-discrimination laws.
    Senator Alexander. But you're suing large accounting firms, 
Deloitte and KPMG, I believe, without a single complaint from 
an employee originally, alleging age discrimination with 
mandatory retirement firms.
    Mr. Lopez. Incorrect, Senator. We're not suing those 
companies. We are not suing those companies.
    Senator Alexander. You're investigating those companies.
    Mr. Lopez. OK. Let me----
    Senator Alexander. Is that correct?
    Mr. Lopez. Well, I----
    Senator Alexander. Yes or no?
    Mr. Lopez. I can't confirm or deny whether there's an 
ongoing investigation with respect----
    Senator Alexander. Why not?
    Mr. Lopez. Because of the confidentiality of the statute.
    Senator Alexander. But you're required, if a case has a 
high likelihood of creating public controversy, to submit that 
case to the Commission for approval before you bring a case.
    Mr. Lopez. Yes.
    Senator Alexander. Let me ask you--given congressional 
concerns with your investigating partnership agreements, will 
you agree that in any future cases, if you were to bring a 
case, you would submit it to the Commission before you do that?
    Mr. Lopez. If I can unpack that a little bit----
    Senator Alexander. I only have a few minutes. So yes or no?
    Mr. Lopez. I'm not in charge of the investigations. The 
investigations of the agency----
    Senator Alexander. Who brings the cases? You do, do you 
not?
    Mr. Lopez. We would file the lawsuits, right.
    Senator Alexander. But I'm asking you before you file a 
lawsuit alleging age discrimination because a partnership 
agreement includes a mandatory retirement age, would you submit 
it to the Commission for approval before you do it?
    Mr. Lopez. It depends on the facts of the case and----
    Senator Alexander. So the answer is no, you wouldn't?
    Mr. Lopez. No, that's not the answer, Senator. The answer 
is that the Commission has separate delegation criteria and----
    Senator Alexander. I'm not asking you that. I'm asking you 
will you submit every case in the future about age 
discrimination because of a mandatory retirement age to the 
Commission for approval before you begin it? Yes or no?
    Mr. Lopez. I will follow the delegation criteria----
    Senator Alexander. Give me a yes or no, please.
    Mr. Lopez. It depends on the case, Senator.
    Senator Alexander. That's not a yes or a no. I really 
resent the fact that you would come up here and not answer a 
question yes or no.
    Mr. Lopez. But it depends on the facts of the case.
    The Chairman. Just a second. I am going to intervene here.
    Senator Alexander. Mr. Chairman, you don't need to 
intervene in my questioning.
    The Chairman. I do need to intervene.
    Senator Alexander. I think you do not.
    The Chairman. I do.
    Senator Alexander. I've got a right to have an answer. 
Advise and consent is one of the most important rules of the 
Senate, one of the most important functions. Now, you've 
emaciated that by changing a rule. I've got a right to know 
whether he's going to say yes or no.
    The Chairman. I believe the witness has answered the 
question by saying it depends on the case.
    Senator Alexander. Mr. Chairman, you may have your opinion. 
I have mine. That is not the question I was asking. I'll ask 
another question.
    Mr. Lopez. Senator, if I may, all I'm saying is that the 
Commission has set forth delegation criteria, and I'll try to 
follow them scrupulously. But what I will say is that the one 
instance where I had a case like that before me, I submitted it 
to the Commission.
    Senator Alexander. And they said no.
    Mr. Lopez. I submitted it to the Commission.
    Senator Alexander. And they said no. Correct?
    Mr. Lopez. Yes.
    Senator Alexander. I have a second question on wellness 
plans. Will you commit to submitting any future litigation 
regarding employer wellness programs to the Commission for a 
vote until after the Commission has issued guidance?
    Mr. Lopez. I will submit--well, what I've done with the 
last two cases, the merits cases that have been before us, is 
I've submitted them to the Commission--on the merits cases.
    Senator Alexander. The problem is that the Affordable Care 
Act encouraged wellness programs. You're suing companies that 
are attempting to provide wellness programs before you've given 
guidance--before the Commission has given guidance about what 
companies may do. That's discouraging employers who are trying 
to give employees cheaper insurance if they lead a healthy 
lifestyle.
    So at least I would think you would wait--as long as 
there's no guidance from the Commission, you would want to 
submit a case to the Commission for approval before you bring 
it. That's my question.
    Mr. Lopez. We're responsible for enforcing the Americans 
with Disabilities Act, and under longstanding guidance under 
the ADA, an employer may not require an employee to disclose 
confidential medical information unless it's done so 
voluntarily.
    Senator Alexander. So the answer is no. Is it true the 
Commission has not submitted any guidance yet about how 
companies may comply with the Affordable Care Act provisions 
for wellness?
    Mr. Lopez. Yes. I believe the Commission has not submitted 
any guidance.
    Senator Alexander. But you're suing anyway.
    Mr. Lopez. The two merits cases I brought were submitted to 
the Commission based on the facts of the case, and the facts of 
the case involved in one instance where individuals were cutoff 
completely from insurance and threatened with unspecified 
disciplinary action. In the other case, an individual was 
terminated when the individual objected to participating in the 
program.
    So consistent with the ADA, we brought those suits. But I 
submitted them to the Commission prior to bringing those suits.
    Senator Alexander. Thank you, Mr. Chairman. My time is up.
    The Chairman. Thank you. Let's see. I have in order, 
Senator Scott is next.

                       Statement of Senator Scott

    Senator Scott. Thank you. Thank you for your willingness to 
serve, to both of you.
    I would like to continue along the line of Senator 
Alexander as it relates to the ACA and whether or not it is 
inconsistent or incompatible with the ADA. So your assertion 
sounded to me like you were suggesting that the ACA is somehow 
in conflict with the ADA as it relates to companies being able 
to provide financial incentives for wellness programs.
    Mr. Lopez. No, that's not my position. The position is that 
the ADA and the ACA could be harmonized and presumably will be 
harmonized. But when we bring the case--when we look at a case 
to enforce the Americans with Disabilities Act, we look at the 
guidance that has been established by the Commission.
    And under the Commission's 2000 guidance, it discusses 
under what circumstances medical information could be provided 
pursuant to a wellness program, and it says that the 
information must be provided voluntarily, and the guidance 
says--and this is not guidance I created. It was created before 
I got there----
    Senator Scott. I don't want to interrupt you. The real 
sense of urgency that you have--see, on our side, we get 5 
minutes, and Senator Harkin is so quick to cut us off. We want 
to make sure that we are consistent with our 5 minutes. So I 
don't want to cut you off unnecessarily.
    My question really drills down into the place where we 
figure out whether or not the guidance that companies are 
looking for has been requested, and if it was requested and not 
received, then why are there lawsuits moving forward? I mean, 
the vast majority of employers want to be consistent and in 
compliance. They've asked for guidance, yet they have not 
received guidance. But there is a suit out there versus 
Honeywell that suggests that they are somehow in conflict with 
a law without any guidance, even though they asked for the 
guidance.
    Mr. Lopez. Honeywell is a different situation because 
that's not a merits suit, and I can talk about that more if 
you'd like. But the two suits that we brought were very simply 
because we believed there was a violation of the Americans with 
Disabilities Act under longstanding EEOC guidance.
    Senator Scott. So Honeywell would be different?
    Mr. Lopez. Honeywell is a different situation because it 
wasn't a merit suit. What that means is that when we went in 
there, we were not seeking to end the wellness program, we were 
not seeking damages, and we were not seeking to stop the 
testing.
    All we were looking for was a little breathing space to 
conduct the investigation, because under that particular--to 
know that the medical information, which included the 
submission of blood samples, that that information was turned 
over voluntarily. That's what we did in that case.
    Senator Scott. Back to the case on mandatory retirement 
agreements, I listened earlier to the fact that many times 
there are complaints that are submitted--perhaps more than 
75,000 complaints still out there not being addressed. And yet 
there are some suits, some direction by the Commission or by 
yourself, where there is no complaint and no victim, like 
Deloitte or PWC, where you submitted it to the Commission and 
they said don't move forward on that one.
    Why the action where there are no complaints, where there 
are no victims, when we're talking about a voluntary system of 
retirement?
    Mr. Lopez. Just because you don't have a charging party 
doesn't mean you don't have a victim. But let me go back to 
the----
    Senator Scott. I would use as a backdrop 75,000 complaints 
where you do have people who say they are victims, and yet 
you're heading in the direction where there are no victims, 
there have been no complaints, and we find ourselves wasting a 
lot of resources in a direction perhaps without any 
identifiable person who has suggested that there has been some 
level of discrimination and/or some concern.
    Mr. Lopez. Thank you, Senator. In the Commission's 2006 
systemic task force plan, the Commission talked about directed 
charges and Commission's charges as an important tool of the 
Commission to address discrimination, because in some instances 
individuals were intimidated from complaining. They didn't know 
they were discriminated against. That was developed by the 
Commission. That wasn't developed by me.
    As the general counsel, I follow the guidance of the 
Commission, and there hasn't been anything from the Commission 
to indicate that we should not bring suits based on directed 
charges or Commission charges. In fact, recently, in the 
strategic enforcement plan, the Commission again reaffirmed the 
importance of using directed investigations, which are a 
statutory tool, to address issues of violations of the Equal 
Pay Act.
    Senator Scott. I think what you'll find here is that our 
concerns are centered on the fact that there are so many 
complaints, but so limited resources to go after those 
complaints, and that we have very serious concerns. I would 
conclude my remarks by stating the fact that over the last few 
years, we've seen more than $5 million being paid out by the 
EEOC because of the lawsuits and challenges they've brought 
forward.
    And some of the comments from some of the courts are very 
disturbing. In the Bloomberg case, it was said that there is a 
sue first, prove later environment. And in the home nurse case, 
the court said EEOC's highly inappropriate search and seizure 
operation, its failure to follow its own regulations, its foot 
dragging, its errors in communication which caused unnecessary 
expenses for the company, its demands for access to documents 
already in its possession, and its dogged pursuit of an 
investigation where it had no aggrieved person, no aggrieved 
person, constitutes a misuse of its authority as an 
administrative agency.
    Finally, in Freeman, a Federal court found that the EEOC's 
expert witness analysis contained a mind-boggling number of 
errors and that its evidence was skewed, rife with analytical 
errors, laughable, and an egregious example of scientific 
dishonesty. Our concern--at least my concern is with the 
limited resources we have, with 75,000 complaints out there, 
pursuing cases where there is no aggrieved person is hard for 
us to digest.
    Thank you very much.
    The Chairman. I would say to the Senator that the chair did 
allow him to go over 1 minute and 24 seconds.
    Senator Scott. Sir, I appreciate that very much. This is a 
great day.
    The Chairman. But we always go a second round, anyway.
    Senator Hatch.

                       Statement of Senator Hatch

    Senator Hatch. Thank you, Mr. Chairman.
    Mr. Lopez, traditionally, the Office of General Counsel has 
published an annual report that details its litigation 
activities. However, a report has not been published since 
2010. Why did these reports stop being published?
    Mr. Lopez. Really, due to resources, Senator. To be honest, 
due to resources. We don't have extensive resources. In 
headquarters, we went through a two and a half year period 
where there was enormous staff attrition, and, really, the 
ethic of the program has always been that when we had an 
opportunity to get positions, which is very rare, we would put 
those positions out in the field, because a lot of the field 
offices are really under water.
    Senator Hatch. If reconfirmed, will you commit to 
publishing these reports each year?
    Mr. Lopez. Yes.
    Senator Hatch. The EEOC received a charge on October 16, 
2014, and filed suit on October 27, 2014, alleging that an 
employer's wellness plan violated the Americans with 
Disabilities Act and the Genetic Information Nondiscrimination 
Act, or GINA. Given the time lapse of 11 days, how did the EEOC 
investigate and conciliate this case before filing?
    Mr. Lopez. Are you talking about the Honeywell matter, 
Senator? As I mentioned, the Honeywell matter--we went in for 
temporary relief. The way that the agency is structured is that 
if a district director--now, the district directors are under 
the chair--if the district director believes that temporary 
relief is necessary in order to obtain--to complete the 
investigation, the ongoing investigation, then the General 
Counsel can go into court and seek temporary relief.
    The reason that I keep emphasizing that this is not a merit 
suit--the court said that. The court said this is not a merit 
suit. When the court ruled in Honeywell--because we were not 
going in there asking for damages. We were not going in there 
asking for the end of the wellness program, and we were not 
asking them to stop testing. All we were asking is that they 
not impose penalties so that any disclosure of medical 
information could truly be voluntary.
    Remember, in this case, the disclosure of medical 
information included the submission of blood samples. So that 
really kind of elevated it in terms of the way that we looked 
at the case.
    Senator Hatch. Let me ask a little bit further to see if I 
can get more information on it. As this involves a novel area 
of the law and contradicts how other cabinet level agencies 
interpret wellness plans under the Affordable Care Act, why was 
this litigation not submitted to the commissioners for review 
prior to the filing?
    Mr. Lopez. The Commission, under ADA and GINA, has a 
statutory right to go in and seek temporary relief. Under the 
Commission's regulations that preexisted my tenure, the General 
Counsel has been delegated the authority to go in and seek 
temporary relief, presumably because of the ease of getting 
into court or the quickness in terms of getting into court. 
That had already been delegated. So what we did in that case 
was consistent with the authority under the EEOC's regulations.
    Senator Hatch. The relative minimal number of cases 
referred to the Commission during your tenure as General 
Counsel has been referred to, I think, a number of times during 
this hearing. In addition, as demonstrated by court decisions, 
EEOC needs to do a better job of meeting its statutory 
obligations in figuring out which cases lack merit. I have not 
heard how you review litigation from the field offices. How 
many times have you rejected a litigation proposal from the 
field?
    Mr. Lopez. From the field offices?
    Senator Hatch. Yes.
    Mr. Lopez. I don't have a number, but we do reject 
litigation proposals from the field, and, on occasion, we'll 
send it back for additional conciliation if we think that it's 
in the public interest. There is a search and review that goes 
on in my office.
    Senator Hatch. That's great.
    Let me go to you, Ms. Burrows, and let me ask you this one 
question. Employers are very concerned that lawsuits are moving 
forward on wellness plans before EEOC issued any guidelines or 
issued any guidance explaining how a wellness plan should be 
structured to avoid discrimination. As the EEOC is an 
enforcement agency of the Federal Government, how will you 
monitor the publishing of guidance to comply with the current 
law?
    Ms. Burrows. Thank you, Senator. First of all, let me say 
that I think it's clear that this is an area where guidance is 
necessary. It's in the interest of employers. It's in the 
interest of employees. And there are enough new obligations on 
businesses that it makes sense for the Federal Government to 
help them out on this one.
    In terms of finding the right way to issue guidance, I 
think it's extremely important to have input from everybody so 
that you know you're getting it right. This is a new statutory 
obligation on the business community. It's important to find 
the right balance, and there's a lot at stake.
    I think making sure that there's a transparent process, 
that there's a process that allows the Commission to really 
understand everyone's perspective, and where the rubber hits 
the road that you have a very practical solution at the end of 
it, is something that would be important. I know that the 
Commission works through public hearings and that sort of 
thing. Those--you know, the maximum amount of input on 
something like that makes sense to me.
    Senator Hatch. Thank you.
    My time is up, Mr. Chairman.
    The Chairman. Thank you.
    Senator Paul.

                       Statement of Senator Paul

    Senator Paul. Mr. Lopez, do you realize how enormous the 
power would be if we were going to have a government that 
initiates police action where there are no complaints? I mean, 
there basically would be no limit to where you could look. So I 
guess the first thing that comes to mind is we're going to have 
the police selling illegal cigarettes, trying to get people to 
buy them.
    The thing is that I imagine you going into a business where 
there's been no complaint, and you interview someone. You don't 
get what you need, so you keep asking another question, another 
question, another question. You finally get to a question where 
the guy says, ``Oh, yes, I'm tired of old people, you know, 
coming in here,'' and then all of a sudden--``Oh, my goodness. 
Now we can do something.''
    Do you realize the downside of the unlimited nature of 
going after people with no complaints and what this is going to 
do to business? Do you not understand that we've got to somehow 
balance it? We want people to have jobs. You're going after law 
abiding people where there's been no complaint, and you don't 
feel at all any compunction or guilt over what you're doing?
    How can you show up to work? How can you show up to work 
with a straight face and prosecute people where there's been no 
complaint? How can you do this? I don't understand how you 
wouldn't resign immediately and say this is abhorrent. This is 
so against what everything America stands for, that you would 
go after people where there's been absolutely no complaint, run 
them through the wringer and use the threat of your bully 
nature of your office to punish business, and as a consequence, 
punish the workers? I don't get it.
    Mr. Lopez. Let me say a couple of things. First Senator, my 
mother owned a shoe store for 15 years, that's the family I 
grew up in. I understand the challenges of a small business 
owner.
    Senator Paul. Ask her how she would feel if you came into 
her business and started harassing her over her hires.
    Mr. Lopez. Second, let me answer your question with respect 
to the structure of the agency. I take the cases that are 
recommended to me from the investigation. I am not in charge of 
the investigations.
    Senator Paul. But let's say you were. Let's say you were in 
charge of EEOC and you could make policy. Do you think this 
policy of entrapment, of going into businesses that have 
committed no crime and have had no complaint and ginning up and 
looking for something--isn't that abhorrent? If you were in 
charge, would you fix it? If you weren't told by anybody, would 
you commit this crime of entrapment on people? Would you do 
things differently if you could make the policy?
    Mr. Lopez. I disagree that what the Commission is doing is 
entrapment. Let me give you an example.
    Senator Paul. You agree with the policy, then, so don't 
defer it to someone else. You agree with the policy.
    Mr. Lopez. Let me give you an example. Most individuals who 
are discriminated against in the hiring process do not know 
that they've been discriminated against because employers 
usually do not say that they've been discriminated against.
    Senator Paul. We're going after mythology, then. You have 
no idea--the people who have been discriminated against don't 
know it, and the people who have done it don't know it, and 
you're going to come in as the arbiter of thought, and you are 
going to decide what's correct. Realize there's a penalty. We 
have an enormous amount of unemployment. Millions of people are 
unemployed. Do you think you're helping employment or hurting 
employment?
    Mr. Lopez. The Commission in 2006 through the systemic task 
force report said that the use of directed charges and 
Commission's charges, both authorized under the statute, are 
important tools of the Commission.
    Senator Paul. Baseless charges.
    Mr. Lopez. It didn't say baseless.
    Senator Paul. Baseless would be without complaint. You have 
no base until you go snooping around, looking for a problem 
that no one complained about. You agree with this policy, then?
    Mr. Lopez. I agree in some instances you have victims of 
discrimination who are intimidated to come forward.
    Senator Paul. I just can't imagine--if we were to talk to 
real people in the real world, they couldn't imagine that you 
would go after businesses where people don't know they've been 
discriminated against, there's been no complaint of this, and 
you would go after and persecute these businesses, and put them 
through hundreds of thousands of dollars of legal fees. Do you 
realize there are jobs lost in the process? Do you realize if a 
business is teetering--whether they survive or not survive--
that you can bankrupt a business through the bully nature of 
your pulpit.
    You have 70,000 backlogged cases. Why don't you fix your 
backlog before you decide to go out and persecute American 
businesses? For goodness sake, how do you explain your backlog? 
You have 70,000 cases waiting where people actually had a 
complaint, a real--maybe valid, maybe not, but at least a 
complaint. And you're going to go looking for things in 
businesses that have no complaints. I think it's absolutely 
inexcusable. I think it's un-American. I think it's 
dishonorable. I can go on and on and on.
    I hope you will rethink your position on these things. It 
is something that we should eliminate, and I'll do everything 
possible to make sure you're not allowed to do it anymore.
    The Chairman. I'll say to my friend from Kentucky that we 
had 32 intellectually disabled individuals working in a turkey 
plant in Atalissa, IA. Some of them had been working there for 
as long as 20 years, housed in horrible conditions by their 
employer. After 20 years, some of them had nothing to show for 
it, not even a penny to their names--intellectually disabled. 
They didn't file a complaint with the EEOC. But someone was 
watching this and tipped them off and said, ``You know, there's 
something funny going on there.''
    Senator Paul. That sounds like a complaint.
    The Chairman. No, it wasn't a complaint.
    Senator Paul. I'm not talking about the mentally 
incompetent. I'm sure we could have----
    The Chairman. It was not a complaint. They started an 
investigation of a legitimate business that was operating in 
Atalissa, IA.
    Senator Paul. I have a business in Kentucky, and they will 
not even reveal who made the complaint or if there's a 
complaint. And here's my question. How many times are you doing 
that? Hundreds?
    The Chairman. I'll say to my friend from Kentucky that I'm 
not certain I'll ever know who tipped them off about that. But 
they took it under advisement. They started an investigation 
and found a cesspit, a cesspit.
    Senator Paul. Shouldn't you be able to confront your 
accusers?
    The Chairman. And by the way, that company, Henry's Turkey 
Service, because of the judgment against them of $240 million, 
went bankrupt.
    Senator Paul. Shouldn't you be able to confront your 
accuser? In America, should you confront your accuser, or 
should your accuser be anonymous?
    The Chairman. There was not an accuser. There was a tip-
off, and they found that these people had been employed and 
discriminated against in violation of all kinds of different 
civil rights acts, but mainly the Americans with Disabilities 
Act, among others. So I say to my friend that there was no 
complaint filed. These were intellectually disabled people. 
They had no knowledge that they were actually being 
discriminated against.
    Senator Paul. Yes, but here's the thing. We're looking at a 
service industry. We have a lot of young people working at a 
restaurant----
    The Chairman. Do you think the EEOC should have 
investigated that or not?
    Senator Paul. It sounds like yes. But my point is if you 
have a service industry--restaurants. We have a restaurant 
chain that's being harassed in my State. They have young people 
working there. Young people work in the service industry. Is 
that enough evidence to persecute them for age discrimination? 
That's ridiculous. It is an absurd abuse of government and 
should end.
    The Chairman. What the Senator from Kentucky--what I heard 
him say--I'll check the record. I don't know. But I thought I 
heard him say it was abuse of government power to investigate 
these kinds of things when there's been no complaint filed. I 
just gave an example of one where no complaint was filed, but I 
thought it was a very legitimate use of the government using 
the laws that we passed here to go ahead and investigate what 
someone tipped them off to be a very egregious violation of 
civil rights laws.
    I think in those cases, yes, the government is doing the 
proper thing by protecting people who otherwise have no one 
else to protect them. I just wanted to make that case, that it 
doesn't have to be a complaint at all. I've gone over my time, 
too.
    Senator Alexander.
    Oh, I'm sorry. Senator Franken. I apologize.

                      Statement of Senator Franken

    Senator Franken. That's all right. I apologize. I had to go 
to make quorum at an Energy Committee hearing, and so I missed 
a lot. I was here for the testimony and some of the 
questioning. But it got exciting while I was away.
    [Laughter.]
    That's always good. I understand that we got into the issue 
of workforce wellness programs.
    Mr. Lopez. Yes.
    Senator Franken. I missed some of that, and I'll read it 
when I get back. But to me it's an interesting area, because 
I'm a supporter of wellness programs because I believe in 
preventive care. I believe that a healthy diet and exercise and 
timely medical care can bring--they've been shown to bring 
down--I don't believe this, I know this--bring down the cost of 
healthcare, and they improve people's long-term health and 
short-term health and make them feel better.
    But I'm also a strong advocate for privacy and civil rights 
protections for workers. So I believe these programs have to 
strike a balance between giving people an opportunity to 
improve their healthcare outcomes and their costs maybe on 
their insurance. I know in the Act, we've said that if you 
smoke, you can be charged more, right? But we also have to 
respect people's rights and refrain from discrimination. I'm 
not sure about what the back-and-forth has been.
    But, Mr. Lopez, can you speak to how you strike that 
balance, how your office has been striking that balance? And 
where have there been some--where is the controversy here? 
Where have the problems been, and how have you been addressing 
them? And if there are some that are outstanding that you can't 
talk too specifically about, could you talk generally about 
them?
    Mr. Lopez. I am a supporter of wellness programs. Under the 
Americans with Disabilities Act, an employer can ask for 
information pursuant to a wellness program provided that it's 
turned over voluntarily. Under the EEOC's longstanding 
guidance, which I think was adopted in 2000, the whole issue of 
voluntariness looks at whether there are penalties attached to 
the request for medical information.
    I believe you were out of the room, Senator, but I 
discussed two of the cases that we filed, and in those cases we 
alleged that the individuals were required to pay all the 
premiums when they didn't agree with the wellness plan. And in 
the other case, the employees were told that they would be 
subject to unspecified disciplinary action and that they had 
their insurance cutoff altogether.
    Senator Franken. That one was not allowed and the first 
one----
    Mr. Lopez. Yes.
    Senator Franken. Or you took action against the second one?
    Mr. Lopez. Those are the two merits cases that we filed, 
and there's certainly recognition that the Commission has not 
weighed in here. Because of that, those cases went to the 
Commission for litigation approval, and, presumably, the 
Commission looked at those cases and said that in those cases, 
there was sufficient evidence that the information was not 
being--that individuals were being coerced into involuntarily 
turning over medical information in violation of the Americans 
with Disabilities Act.
    Senator Franken. What I'm trying to figure out is what's 
coercive, say you're taking a blood test or some kind of test 
to determine whether you smoke or not?
    Mr. Lopez. Yes.
    Senator Franken. Can you do that? Is there such a test, a 
blood test----
    Mr. Lopez. I don't know.
    Senator Franken [continuing]. I guess to find nicotine, 
right?
    Mr. Lopez. I don't know if there's a----
    Senator Franken. Well, then, I'm asking a hypothetical 
question that no one knows whether it's a hypothetical or a 
real question, so let's forget it. Let's go on to my next--OK, 
cholesterol. But we have no penalties for preexisting 
conditions. I wouldn't think that having high cholesterol would 
be a reason for you to be charged more for your insurance.
    The Chairman. This isn't my area.
    Mr. Lopez. It's not the----
    Senator Franken. I'm asking the Chairman a question.
    [Laughter.]
    The Chairman. It's not the cholesterol. It's the taking of 
the blood that can then be used for other reasons, to examine 
what else may be wrong, or something like that. You can use a 
blood sample for a lot of things. It could be for cholesterol, 
but it could be for a lot of other things.
    Senator Franken. Oh, I see. Is the part that would draw 
your scrutiny that it's being used for other things? Or what 
would bring your attention?
    Mr. Lopez. If the individual doesn't have a choice as to 
whether to turn it over, whether the disclosure of medical 
information is done involuntarily.
    The Chairman. This is a fine point, and the Senator is 
correct and others who have pointed out--this is a very dicey 
point, and I've been involved in both sides, on the ADA and 
also on the wellness provisions. I put it in the ACA. The 
problem is forcing someone to disclose why they do not want to 
be a part of the wellness program. That's the problem.
    Let's say that I have a certain disability, but I do my 
job. I function well at my job. I meet all the requirements. 
But if I don't want to be a part of the wellness program, which 
means part of it is I have to take a blood test, and I don't 
want that blood test taken. The problem is being forced to say 
why I don't want to be a part of that wellness program.
    Senator Franken. OK. And is the part that's coercive 
possibly just the penalty, the financial penalty? Is that what 
you guys have determined?
    Mr. Lopez. That is what the Commission's 2000 guidance 
says.
    Senator Franken. OK. I see. There you go. Thank you, and I 
look forward to voting for you both.
    The Chairman. It is a very fine point.
    Senator Franken. It's an interesting area.
    The Chairman. It's a very fine point. I agree.
    Senator Alexander.
    Senator Alexander. Thanks, Mr. Chairman. Just so I 
understand, let's say I'm at X Company, following up Senator 
Franken's question, and they have a wellness program, and I 
have to give blood to be a part of the wellness program and get 
lower premiums. If I decline to join the program because I 
don't want to give blood, is that discrimination?
    Mr. Lopez. You can voluntarily disclose your blood----
    Senator Alexander. But say I----
    Mr. Lopez. If there are penalties attached to it, then----
    Senator Alexander. The penalty would be you don't get the 
cheaper insurance. Is that right?
    Mr. Lopez. Yes.
    Senator Alexander. And you get a higher premium.
    Mr. Lopez. Under the Commission's guidance, it talks about 
penalties as being determined by whether it's voluntary. That's 
what the Commission----
    Senator Alexander. Yes, but that's the whole point of a 
wellness program. You get a cheaper premium if you lead a 
healthy lifestyle. So I say I don't want to give you my blood. 
I don't want to participate in the wellness program. Therefore, 
I have to pay a higher premium. But are you saying that amounts 
to discrimination?
    Mr. Lopez. Not necessarily. It depends on the case, 
Senator. It depends on the case. But the two merits cases that 
we filed--in one instance, the employees were subject to 
unspecified disciplinary action. In the other case, they were 
cutoff from insurance altogether.
    Senator Alexander. Ms. Burrows, I think this emphasizes the 
importance of guidance so employers can initiate wellness 
programs wherever they can. And while we're on the subject of 
guidance, at least once in the last couple of years, you've 
issued significant guidance without allowing the public to 
comment on the draft. I'm thinking of the criminal background 
check guidance.
    If confirmed, will you work to allow the public to comment 
on EEOC's draft guidances before they're issued?
    Ms. Burrows. Thank you, Senator. To clarify, I was not on 
the Commission and did not take part in the Commission's 
deliberations on the guidance.
    Senator Alexander. Right. Yes. I understand that.
    Ms. Burrows. But, yes, I think it's very important to have 
input from all the stakeholders. Otherwise, you're not sure 
you're going to get to the right place.
    Senator Alexander. Yes, and input would mean, ``Here's the 
proposed guidance. What do you think about the language of this 
proposed guidance?'' Would that be your idea of input?
    Ms. Burrows. As you've described it, it sounds somewhat 
like notice and comment kind of rulemaking, and that's one way 
to----
    Senator Alexander. Almost the way you would do it in--but I 
don't think it's--if you just asked me generally what I think 
about a wellness regulation, I might be like Mr. Lopez. I might 
say it could be this, or it could be that, or it could be this, 
depending on hypothetical. If you lay some language out in 
front me and say, ``This is what we're proposing to do, and 
you've got a little time to tell us what you think,'' that is 
what I would consider to be input on guidance.
    Ms. Burrows. Oftentimes, I think that makes sense, and, 
certainly, you have to pose the question to the public, however 
the method is, with enough specificity so that you get a real 
answer and that you're sure you're having a real back-and-forth 
dialog.
    Senator Alexander. So you're not willing to say that you 
would ask for public input on a draft guidance before you 
issued it?
    Ms. Burrows. I think that may be perfectly appropriate on a 
number of occasions. I don't have any reason to say it would be 
a bad idea in the example you posed or in any other. But I 
think that's something--from the outside looking in, not being 
familiar with how the Commission proceeds, I would want to ask 
both the Republican and Democratic members of the Commission 
what the best way is to approach that problem.
    Senator Alexander. I have a growing concern about guidance. 
I see the value of guidance, as we've talked about in the case 
of harmonizing ACA and ADA and the wellness issue. It would be 
a help to employers to have some specific advice about what 
they can do and what they can't do.
    But since those guidances increasingly seem to have the 
rule of law--that was the testimony I got from the civil rights 
person at the Education Department--I think if you're going to 
issue a draft guidance in a significant case, one that might be 
controversial, like wellness, I think it would be wise to allow 
public comment on the actual draft of the guidance rather than 
just collect general opinions on the subject. That's my 
suggestion.
    That's all I have, Mr. Chairman.
    The Chairman. Mr. Lopez, I want to go back to this issue of 
wellness and penalties. Since I was a chief sponsor of the ADA, 
and also I was the chief architect of the wellness and 
prevention programs in the Affordable Care Act, I care about 
both of those.
    The case that we're talking about here--is this not sort of 
the facts of the case, that the person in this company had--the 
company had instituted a wellness program that required certain 
medical examinations and blood tests. This employee declined to 
participate. The company, Orion Energy in Wisconsin, then 
shifted the responsibility for paying the entire premium of 
$413.43 a month to her from the employer.
    Mr. Lopez. Correct.
    The Chairman. She then had to pay $413.43 more per month.
    Mr. Lopez. Correct.
    The Chairman. Then she had to pay a $50 monthly penalty for 
not taking part in the fitness component, and shortly 
thereafter, she was fired for her refusal to participate.
    Mr. Lopez. Correct. That's what we allege in the lawsuit.
    The Chairman. Those are the facts of the case.
    Mr. Lopez. That's what we allege in the lawsuit, yes.
    The Chairman. I've thought about this a lot because I've 
had similar things coming in to me about wellness programs 
through HHS, of course, on this. And to the point where someone 
is penalized drastically for not submitting a blood sample and 
to participate in a medical examination, it's quite intrusive.
    I know a lot of companies have wellness programs that don't 
require you to do anything like that. But they have wellness 
programs, and they set up goals. Our goal in this company is to 
reduce smoking, to reduce BMI, to reduce cholesterol, to do a 
lot of different things to meet certain wellness programs and 
prevention.
    What we did in the Affordable Care Act--we put in a 30 
percent leeway. In other words, an employer can cut their 
employees' cost of their healthcare by up to 30 percent by 
participating in a wellness program.
    This is not in your bailiwick, but just for general 
information, we've asked HHS again to look at things like--a 
company could have a wellness program with--here are the goals. 
If any employee cannot participate in that wellness program but 
can meet those goals in other ways voluntarily, that's fine, 
too.
    It doesn't have to be just that prescribed kind of system 
that they--because everybody is not the same. Not everybody can 
do the same thing. But if they set up certain goals, there may 
be other ways for them to voluntarily meet those goals.
    The facts in this case were quite egregious, where this 
person was penalized drastically and then fired because she 
would not participate in this wellness program and because she 
wouldn't submit to a medical examination and a blood test. That 
case is way out there. I'm sure there are others that are much 
more close to being a fine point of law than that one. That was 
not a fine point of law.
    That's why I said to Senator Franken that sometimes these 
can be very fine points, and I know that the Commission has to 
wrestle with these. I assume that as we move forward with both 
the protection of people under civil rights laws, but also 
move, hopefully, with better wellness and prevention programs, 
that these things will tend to kind of sort themselves out. But 
we can't take one case which is egregious and say this fits 
everything else. We can't. Egregious cases like this have to be 
responded to. There will probably be other cases that will be 
much more finely attuned than something like that.
    But it's something that I know the Commission is going to 
have to grapple with probably in the future. I'm sure this 
committee under the able leadership of Senator Alexander will 
be looking at these things down the road, making sure that two 
things are fulfilled, that we do, in fact, protect people and 
their rights under the ADA and others and make sure, as Senator 
Paul said, that the government doesn't go too far in trying to 
interfere in the business' rights to set up its own wellness 
programs. These are all things that take time to work out.
    So I hope the Commission--Ms. Burrows, you'll be on the 
Commission. I hope that you will take these things into account 
and try to examine ways with HHS and through the Affordable 
Care Act that we can continue to have good wellness programs in 
our businesses without going to the extent that this company 
went to.
    I didn't ask any questions. I just had that statement. 
That's all.
    Do you have any other questions? Is there anything else 
that either one of you want to comment on before we call this 
to a close?
    Ms. Burrows. No, but thank you very much for your time.
    The Chairman. Thank you both very much, and hopefully, we 
can move these nominees very shortly. We appreciate it.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

   Response by Charlotte A. Burrows to Questions of Senator Alexander

    Question 1. There are currently more than 70,000 charges of 
discrimination pending at EEOC. If confirmed, would you support EEOC's 
continuing focus on conducting investigations without an employee 
charge instead of spending EEOC's resources to eliminate the backlog of 
employee complaints of discrimination?
    Answer 1. If confirmed, I would consider ensuring the timely 
processing of pending charges a high priority for the Equal Employment 
Opportunity Commission (EEOC or Commission). When the Commission cannot 
timely review charges, they may become more difficult to investigate, 
as witnesses may become unavailable or their memories may fade. In 
addition, resolving charges promptly provides much-needed closure for 
both charging parties and employers.
    Before reaching any determination regarding the most effective use 
of Commission resources, I would seek the views of the Chair and each 
of the other Commissioners, and take those views into account in 
forming my own judgment.

    Question 2. If confirmed, would you bring to the commission any 
ideas about how to help reduce the backlog?
    Answer 2. As noted above, timely resolution of charges should be a 
high priority for the Commission. As an outsider to the Commission, I 
do not know what methods the EEOC has already tried in this area, nor 
with what success. Accordingly, I would approach the question of how to 
most effectively address the backlog with an open mind and would work 
to learn more about the issue and to offer concrete solutions to the 
Office of the Chair.

    Question 3. Do you believe the commission should continue to 
allocate its resources toward a 4-year investigation into mutually 
agreed upon partnership agreements considering the commission already 
determined an almost identical case did not merit litigation?
    Answer 3. I am not familiar with the specific investigation or the 
Commission decision to which this question refers and therefore have 
not formed any view on this matter.

    Question 4. What are your views on the use of ``testers''--
individuals who apply for positions they do not intend to accept for 
the purpose of determining whether discriminatory hiring processes 
exist?
    Answer 4. I have not worked with testers in employment 
discrimination suits. I am not aware that the EEOC has used testers in 
employment discrimination cases. If confirmed, I would want to become 
more familiar with the issue, and confer with my colleagues on the 
Commission, stakeholders, and experts, before taking a position.

    Question 5a. Some of the current EEOC commissioners have expressed 
support for increasing the commission's role in approving litigation. 
If confirmed, would you support that change?
    Answer 5a. I am not familiar with the proposal referenced above and 
therefore have not yet formed a view regarding it. Before reaching a 
determination regarding the level of the Commission's involvement in 
litigation, I would want to understand the perspectives of the other 
Commissioners, EEOC litigators, and stakeholders.

    Question 5b. How much involvement do you think the commission 
should have in litigation decisions?
    Answer 5b. It is important that the Commission ensure that the 
EEOC's litigation effectively furthers the agency's priorities, and if 
confirmed, I would take seriously the Commission's duty to exercise 
oversight of litigation. As noted above, however, I would want to 
consult with others before forming a view regarding the appropriate 
level of Commission involvement in litigation.

    Question 6. If confirmed, would you support including in EEOC's 
annual Performance and Accountability Report the number of times, and 
the amounts, EEOC is ordered to pay defendants in attorney's fees and 
other court costs each year, including those instances where fees were 
awarded but not necessarily paid?
    Answer 6. With respect to decisions about changes to the 
Commission's annual Performance and Accountability Report, I would seek 
the views of the Chair and other Commissioners of both parties and all 
relevant stakeholders before forming my own opinion about what 
information should be included in the report.

    Question 7. What do you believe to be the downsides of publicly 
circulating--for comment and review--commission guidance at least 30 
days prior to implementation?
    Answer 7. The Commission's procedures for developing guidance 
should provide sufficient advance notice to the public regarding the 
subject matter of the guidance to permit relevant stakeholders to offer 
meaningful input before the guidance is finalized. I am not 
sufficiently familiar with the details of the EEOC's procedures for 
developing guidance to describe potential drawbacks of any particular 
method for obtaining public input, which are likely to vary depending 
on the subject matter of the guidance.

    Question 8. Do you believe that outside attorneys, employers, 
employees and their advocates could provide useful comments regarding a 
draft guidance which may make the guidance more useful?
    Answer 8. Yes. I believe that outside attorneys, employers, 
employees and their advocates, as well as other stakeholders, can 
provide valuable perspectives to assist the Commission in developing 
guidance.

    Question 9. Thirteen States have restrictions on the use of credit-
related background checks in employment. Those laws all include common 
sense exemptions, including permitting the use of such checks for 
executive level positions and positions handling cash, credit cards, or 
sensitive personal information. Do you believe there are instances 
where the use of credit background checks are relevant, and even 
necessary, for certain jobs?
    Answer 9. Yes. In some instances the use of credit-related 
background checks in employment can be job-related and consistent with 
business necessity. Whether a particular employment practice is 
relevant or necessary would depend on the specific nature of the 
practice and its application.

    Question 10. The EEOC has been criticized by courts and employers 
for its failure to engage in meaningful conciliation of potential 
litigation, as required under Title VII of the Civil Rights Act. 
Stakeholders have expressed concerns ranging from unrealistic proposals 
for settlement to a capricious mentality providing stakeholders with 
little information as to the basis for such settlement demands. Are 
there steps you would suggest to improve the Commission's conciliation 
processes and maximize its potential for resolving claims short of 
litigation?
    Answer 10. Resolving charges of discrimination without the need for 
contested litigation conserves the Commission's resources, and serves 
the interests of both charging parties and employers. Accordingly, 
successful conciliation should be a high priority for the EEOC. If 
confirmed, I would seek to learn more about the current conciliation 
practice and any concerns identified before making suggestions in this 
area.

    Question 11a. On July 14, 2014, the Equal Employment Opportunity 
Commission (EEOC) issued guidance regarding pregnancy discrimination, 
entitled ``EEOC Enforcement Guidance on Pregnancy Discrimination and 
Related Issues'' (2014 guidance). The guidance reaffirmed the 
commission's December 2000 guidance, entitled ``Commission Decision on 
Coverage of Contraception'' (2000 guidance). The 2014 guidance asserts,

          ``[e]mployers can violate Title VII by providing health 
        insurance that excludes coverage of prescription 
        contraceptives, whether the contraceptives are prescribed for 
        birth control or for medical purposes.''

In reaching this conclusion, EEOC cites the commission's 2000 guidance 
and the Patient Protection and Affordable Care Act; however, the 2014 
guidance was issued after the Supreme Court ruled in Burwell v. Hobby 
Lobby Stores, Inc. (Hobby Lobby).
    The guidance makes only one mention of the Supreme Court decision, 
in a footnote, stating:

          ``[t]his enforcement guidance explains Title VII's 
        prohibition of pregnancy discrimination; it does not address 
        whether certain employers might be exempt from Title VII's 
        requirements under the First Amendment or the [Religious 
        Freedom Restoration Act].''

Commissioner Lipnic, in her dissenting statement to the 2014 guidance, 
states the 2014 guidance needs to be,

          ``thoroughly reviewed in light of [Hobby Lobby], particularly 
        insofar as it held . . . certain employers may not lawfully be 
        compelled to provide all forms of contraception.'' Commissioner 
        Lipnic also states, ``[a]t a minimum, the Court's [Hobby Lobby] 
        decision dictates a full and substantive review of the 
        [c]ommission's guidance on this topic, and the strength and 
        validity of its legal position.''

    Do you believe the 2000 and 2014 guidance are consistent with the 
Hobby Lobby decision? Please be specific and thorough in your analysis.
    Answer 11a. In Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 
(2013), the Supreme Court held that, as applied to for-profit, closely 
held corporations, the regulations promulgated by the Department of 
Health and Human Services requiring employers to provide female 
employees with health care coverage for contraceptives violated the 
Religious Freedom Restoration Act (RFRA). The Hobby Lobby decision 
addressed only the application of RFRA to the religious objections of 
closely held corporations regarding HHS' contraception mandate. The 
case did not involve, and the Court did not address, RFRA's application 
in the context of claims that an employer's denial of contraceptive 
coverage for religious reasons constituted sex discrimination in 
violation of Title VII of the Civil Rights Act of 1964. However, the 
majority opinion expressly rejected the idea that its holding allows 
``discrimination in hiring, for example on the basis of race, [to] be 
cloaked as religious practice to escape legal sanction.'' Id. at 2783 
(stating that the Hobby Lobby decision ``provides no such shield'' 
against claims of unlawful job discrimination). As such, neither the 
2000 ``Commission Decision on Coverage of Contraception'' nor the 2014 
``EEOC Enforcement Guidance on Pregnancy Discrimination and Related 
Issues,'' appears to conflict with the Supreme Court's decision in 
Hobby Lobby.

    Question 11b. If confirmed, will you commit to a thorough and 
substantive review of the guidance in light of the Supreme Court's 
decision in Hobby Lobby to ensure the guidance is in accordance with 
the Supreme Court's decision?
    Answer 11b. If confirmed, I will review the EEOC's 2014 guidance on 
pregnancy discrimination and any decisions of the Supreme Court and 
lower courts interpreting Hobby Lobby to ensure that the guidance 
comports with relevant case law.

    Question 12. If confirmed, will you commit to cooperating with 
congressional oversight of EEOC, including document requests, and to 
work with the IG and GAO in any studies/investigations that they may 
undertake?
    Answer 12. Yes.

    Question 13. If confirmed and you are asked to personally meet with 
Members of Congress or their staff, are you willing to do so?
    Answer 13. Yes. If confirmed, I would welcome input from Members of 
Congress and congressional staff.

 Response by P. David Lopez to Questions of Senator Alexander, Senator 
                       Isakson, and Senator Paul

                           senator alexander
    Question 1. How does EEOC decide whether to spend resources on 
litigating cases without charges (directed investigations or 
commissioner charges) verses cases that are based on a charge?
    Answer 1. The Office of General Counsel has not considered whether 
the cases it recommends to the Commission for litigation, or approves 
for litigation under delegated authority, are based on a directed 
investigation or Commissioner's charge. By the time a matter reaches 
the Office of General Counsel for a litigation determination, the 
evidence of whether discrimination has occurred is well-developed by 
EEOC investigators reporting to the agency's Office of Field Programs. 
The focus of litigation determinations is always on the facts, the law 
and Commission policy and procedures. The nature of the original charge 
is not determinative.

    Question 2. Are you involved in working to eliminate EEOC's backlog 
of charges? If so, what is your involvement and how do you prioritize 
that involvement with litigation decisions?
    Answer 2. No. The Office of Field Programs, under the Office of 
Chair, is responsible for the investigation and processing of charges, 
including reducing the backlog of charges. The general counsel only has 
authority over the litigation.

    Question 3. How do you ensure your decisions not to send cases to 
the commission are consistent and in accord with the Strategic 
Enforcement Plan's exceptions to the general counsel's litigation 
authority?
    Answer 3. I scrupulously follow the delegation criteria established 
by the Commission. Career staff identifies cases that may require 
Commission review based on the criteria and take appropriate steps to 
ensure the issues in the case are crystallized and that we have the 
best estimate of resources required for the case. Then, I review the 
recommendations. With respect to whether a matter may engender public 
controversy, I look at previous issues that have engendered 
controversy, input from the Commissioners, feedback from my numerous 
stakeholder meetings, and the general environment surrounding an issue.
    The Commission established a process in the Strategic Enforcement 
Plan to examine the effectiveness of delegation. This includes the 
submission of quarterly reports to the Commission and quarterly 
meetings. As part of this process, no member of the Commission has 
identified any case it believes should have been submitted to the 
Commission for approval by my office that was not.

    Question 4. Your office has failed to publish an annual report 
since 2010. At the hearing, you agreed to resume publishing Office of 
General Counsel annual reports if confirmed. If you are confirmed, by 
what date will you commit to publish this report?
    Answer 4. The fiscal year 2011 annual report will be published by 
January 30, 2015.

    Question 5. If confirmed, will you include in the Office of General 
Counsel annual reports the number of times, and the amounts, EEOC is 
ordered to pay defendants in attorney's fees and other costs each year, 
including those instances where fees and costs were awarded but not 
necessarily paid?
    Answer 5. Yes.

    Question 6. EEOC publicly reports on the number of cases 
``resolved'' instead of wins and losses in the courts. If confirmed, 
will you include in the Office of General Counsel annual reports the 
number of cases won, lost, and on appeal each year?
    Answer 6. Yes.

    Question 7. What specific actions have you taken to review and 
evaluate EEOC litigation losses? Have you implemented any changes due 
to EEOC litigation losses?
    Answer 7. Last year, the Office of General Counsel was able to 
resolve or win 93 percent of the cases filed. By any measure, this is 
outstanding. Still, I believe we can learn from all our cases--both the 
wins and the losses--and have stressed extensively during my tenure a 
culture of examining ``lessons learned'' in order to carry out our law 
enforcement mission more effectively and efficiently. This includes a 
personal review of cases where we have been subject to fees; 
discussions with the attorneys involved; a discussion of the cases on 
monthly regional attorney calls including lessons for the program; an 
adjustment of any internal practices, if appropriate, to ensure we 
improve our law enforcement performance and don't repeat our mistakes; 
and a broader discussion of the issues in formal training sessions 
during, for example, our annual Regional Attorney meetings. 
Additionally, significant adverse decisions are circulated to all 
attorneys.

    Question 8a. In your current role as general counsel, do you play 
any role in defending EEOC when it has been accused by its employees of 
discrimination?
    Answer 8a. Yes. Internal Litigation Services, a division in the 
Office of General Counsel, represents the agency when it has been 
accused by its employees of discrimination. If the matter goes up on 
appeal, Appellate Services, also a division within the Office of 
General Counsel, handles the appeal.

    Question 8b. If so, does EEOC take the same legal position in those 
cases as the EEOC does when suing private employers?
    Answer 8b. Yes. In fact, Internal Litigation Services was placed 
under the supervision of the general counsel primarily to help ensure 
consistency in the legal arguments we make in defensive and affirmative 
litigation.

    Question 9. If confirmed, will you commit to cooperating with 
congressional oversight of EEOC, including document requests, and to 
work with the IG and GAO in any studies/investigations that they may 
undertake?
    Answer 9. Yes. This is already a regular practice for the Office of 
General Counsel. For example, my office regularly participates in 
meetings convened with GAO at the agency by the Office of 
Communications and Legislative Affairs.

    Question 10a. If confirmed and you are asked to personally meet 
with Members of Congress or their staff, are you willing to do so?
    Answer 10a. Yes. During my tenure as general counsel I have 
consistently made myself available to meet with Members of Congress. 
The only member to make such a request was Congressman Tim Walberg. I 
met with him promptly and participated in subsequent followup 
correspondence.

    Question 10b. On July 14, 2014, the Equal Employment Opportunity 
Commission (EEOC) issued guidance regarding pregnancy discrimination, 
entitled ``EEOC Enforcement Guidance on Pregnancy Discrimination and 
Related Issues'' (2014 guidance). The guidance reaffirmed the 
Commission's December 2000 guidance, entitled ``Commission Decision on 
Coverage of Contraception'' (2000 guidance). The 2014 guidance asserts,

          ``[e]mployers can violate Title VII by providing health 
        insurance that excludes coverage of prescription 
        contraceptives, whether the contraceptives are prescribed for 
        birth control or for medical purposes.''

In reaching this conclusion, EEOC cites the Commission's 2000 guidance 
and the Patient Protection and Affordable Care Act; however, the 2014 
guidance was issued after the Supreme Court ruled in Burwell v. Hobby 
Lobby Stores, Inc. (Hobby Lobby).
    The guidance makes only one mention of the Supreme Court decision, 
in a footnote, stating:

          ``[t]his enforcement guidance explains Title VII's 
        prohibition of pregnancy discrimination; it does not address 
        whether certain employers might be exempt from Title VII's 
        requirements under the First Amendment or the [Religious 
        Freedom Restoration Act].''

Commissioner Lipnic, in her dissenting statement to the 2014 guidance, 
states,

          the 2014 guidance needs to be ``thoroughly reviewed in light 
        of [Hobby Lobby], particularly insofar as it held . . . certain 
        employers may not lawfully be compelled to provide all forms of 
        contraception.'' Commissioner Lipnic also states, ``[a]t a 
        minimum, the Court's [Hobby Lobby] decision dictates a full and 
        substantive review of the [c]ommission's guidance on this 
        topic, and the strength and validity of its legal position.''

    Do you believe the 2000 and 2014 guidance are consistent with the 
Hobby Lobby decision? Please be specific and thorough in your analysis.
    Answer 10b. The EEOC fully considered the Hobby Lobby decision 
prior to issuing the 2014 Enforcement Guidance on Pregnancy 
Discrimination. The Commission, not the general counsel, establishes 
policy. This policy, as well as the relevant circuit law, informs the 
litigation positions. The Commission continues to believe that the 
decision in Hobby Lobby does not alter the EEOC's Title VII analysis in 
either the 2000 Commission Decision on Coverage of Contraceptives or 
the 2014 Enforcement Guidance. The Hobby Lobby case addressed only 
whether the Patient Protection and Affordable Care Act's contraceptive 
mandate violated the Religious Freedom Restoration Act (RFRA), not the 
application of the RFRA or the First Amendment to Title VII. The EEOC 
documents instead explain that Title VII prohibits discrimination 
against women on the basis of gender with regard to coverage of 
prescription contraceptives in an employer's health insurance plan. 
Thus, the Enforcement Guidance is not inconsistent with Hobby Lobby; it 
simply does not address the specific issues raised in that case. To the 
extent the decision says anything about its applicability outside the 
context of the specific laws and regulations that were at issue in the 
case, the Supreme Court noted that the decision provides ``no shield'' 
for employers who might assert that their religious beliefs conflict, 
for example, with Title VII's prohibition on race discrimination.

    Question 10c. If re-confirmed, will you commit to submitting all 
lawsuits predicated upon the 2000 or 2014 guidance to the Commission 
for a vote?
    Answer 10c. I will follow the criteria established by the 
Commission governing the delegation of litigation authority. The 
Commission has not required the submission of cases where it has 
weighed in with policy guidance. Additionally, for the reasons 
explained above, the decision in Hobby Lobby does not alter the EEOC's 
Title VII analysis in either the 2000 Commission Decision on Coverage 
of Contraceptives or the 2014 Enforcement Guidance. The 2014 Guidance 
also deals with many issues apart from the coverage of contraceptives, 
about which there is well-established Commission policy.

    Question 10d. Do you believe the guidance is regarding a developing 
area of law (given the recent Hobby Lobby decision) or has a high 
likelihood for public controversy?
    Answer 10d. There is no case implicating Hobby Lobby before me. 
With respect to the first part, the assessment of whether any case 
presents an ``emerging issue'' or meets the criteria of the Strategic 
Enforcement Plan will be based on the specific facts of the case and 
any legal issues presented in the case. With respect to the second 
part, I am sensitive to the scope and intensity of interest surrounding 
the issue at the present time. Should this remain constant, depending 
on the specific facts of the case, this will undoubtedly be a factor in 
any decision.

                            Senator Isakson

    Question 1. Recently, EEOC Staff investigated 
PricewaterhouseCoopers for including a mandatory retirement age in its 
partnership agreements. As general counsel, you submitted that case to 
the Commissioners for a vote, but the Commissioners decided against 
litigation. Why is the EEOC Staff investigating Deloitte for the same 
type of partnership agreement as PricewaterhouseCoopers, when the 
Commission already decided the issue did not merit litigation? Are the 
legal issues any different in the two cases?
    Answer 1. Administrative investigations are conducted by the EEOC's 
District and Field Directors as designated by the Commission. The work 
of these individuals is governed by the statutory provisions of the Age 
Discrimination in Employment Act. The key EEOC policy document with 
respect to partner-employee coverage is the Compliance Manual Section 
on Threshold Issues, first issued on May 12, 2000.\1\ The facts of each 
case are unique. If, based on the facts, the EEOC's investigative staff 
concludes that discrimination has occurred and conciliation efforts 
fail, the matter will be reviewed by field legal unit staff and may be 
referred to the Office of General Counsel with a litigation 
recommendation. If I ultimately concur in the recommendation, I will 
apply the standards set forth in the Commission's Strategic Enforcement 
Plan that govern the circumstances under which litigation should be 
sent to the Commission for approval.
---------------------------------------------------------------------------
    \1\ See Compliance Manual Section 2: Threshold Issues, supra note 
3.

    Question 2. I am concerned that the EEOC is again pursuing 
partnership agreements relating to mandatory retirement age. As you 
know, recently the staff pursued a partnership agreement of a large 
accounting firm but decided to allow the Commissioners to vote on 
whether to pursue litigation. Since the EEOC is now considering a 
similar case against another large accounting partnership, will you 
once again recommend the Commissioners vote on whether to pursue 
litigation?
    Answer 2. See response to Question 1.

    Question 3. Recently, the WSJ reported that the EEOC has challenged 
Deloitte's mandatory retirement age for partners and referenced the 
testimony of Deloitte's general counsel at a congressional hearing. Do 
you believe that a congressional hearing as well as the reporting in a 
major newspaper indicate that this matter is one of public controversy 
requiring a vote of the Commissioners? If not, why did the EEOC 
Commissioners vote on a similar case against PwC within the last 2 
years?
    Answer 3. The Strategic Enforcement Plan (SEP) sets forth the 
standards that govern the circumstances under which litigation should 
be sent to the Commission for approval. Under the SEP, the general 
counsel must send litigation to the Commissioners for approval when the 
case (1) involves a major expenditure of resources; (2) presents issues 
in a developing area of law where the Commission has not adopted a 
position through regulation, policy guidance, Commission decision, or 
compliance manuals; or (3) the general counsel reasonably believes to 
be appropriate for submission for Commission consideration because of 
the case's likelihood for public controversy. Consideration of these 
factors is dependent upon the interplay of the facts of a particular 
case or matter and no one factor tends to drive a decision to send a 
case to the Commission.

    Question 4. Do you believe the Commission's rejection of the 
PricewaterhouseCoopers mandatory retirement case set a precedent the 
agency should follow unless it provides a compelling explanation of why 
it is abruptly reversing course? Do you think business would benefit 
from more transparency and finality about the EEOC's decision-making 
activities?
    Answer 4. I am not privy to what precedential value the 
Commissioners may place on their decisions or votes on particular 
litigation matters, nor can I comment on the Commissioners' efforts to 
make their decision making more transparent. As general counsel, I 
oversee a program that does its work in the sunshine and as such is 
subject to scrutiny both by the courts and general public. In my 
experience as general counsel, the Commissioners have reviewed each 
case I have sent to them based on the individual facts of that 
particular case and the law, as set out by the courts, governing each 
jurisdiction.

    Question 5. Is it your goal to change how the accounting profession 
does business? Is it your view that by definition, large accounting 
firms cannot be partnerships? How large is too large? Has the EEOC made 
any study of the impact that changing the way the accounting profession 
does business would have on the existing regulatory scheme? Don't all 
of these questions raise very serious policy questions that should be 
evaluated before action is taken that may have a profound effect on 
interstate commerce and the current regulatory scheme?
    Answer 5. My goal is to enforce the law as set forth by Congress 
and the courts and informed by Commission guidance, with respect to all 
the laws EEOC enforces. I do not have a specific or personal goal to 
change how the accounting profession does business. Both the Federal 
courts and the Commission have held that in some instances, individuals 
who have the job title of ``partner'' may nonetheless qualify as 
covered employees under the EEO laws, including the Age Discrimination 
in Employment Act (ADEA or Act).\2\ The Commission-approved policy 
guidance on this question states that, whether an individual with the 
title of ``partner'' actually functions as a partner-owner depends on 
whether he acts independently and participates in managing the 
organization, or whether he is subject to the organization's control 
and therefore is an employee.\3\ The Supreme Court specifically 
approved of the Commission's emphasis on ``the common-law touchstone of 
control'' when determining partner-employee coverage under the EEO laws 
in Clackamas Gastroenterology Associates, P.C. v. Wells.\4\ Enforcing 
the ADEA would not mean that large accounting firms cannot be 
partnerships. The ADEA language would apply to employees and means that 
individuals with the title of partner who in fact do have sufficient 
control over the business will not be treated as employees for purposes 
of the Act.
---------------------------------------------------------------------------
    \2\ 29 U.S.C.  621, et seq.
    \3\ U.S. Equal Emp't Opportunity Comm'n, Compliance Manual Section 
2: Threshold Issues,  III.A.1.d. (May 12, 2000), http://www.eeoc.gov/
policy/docs/threshold.html#2-III-A-1-d.
    \4\ 538 U.S. 440 (2003).

    Question 6. The mandatory retirement age included in the voluntary 
partnership agreements entered into by owners of these larger 
accounting firms actually creates room for growth for employees moving 
up the corporate ladder. Today, this often includes giving 
opportunities to minorities and women in the workforce to gain an 
ownership stake in the companies that they work for. Why have you 
continued to challenge the mandatory retirement age clause of these 
firms when they in fact create advancement opportunities for so many 
individuals of whom the EEOC is meant to protect?
    Answer 6. Please see the answer to question 5 above. There is 
currently no litigation addressing the issue of mandatory retirement 
age in partnership type entities, nor has any such litigation been 
filed while I have been general counsel.

    Question 7. Do you agree that it is the role of the Commissioners 
and not you to make policy?
    Answer 7. Yes.

    Question 8. As the chief lawyer of the EEOC, who is your client? Is 
it the 5 commissioners as an entity?
    Answer 8. As the chief lawyer for the EEOC, my client in EEO 
enforcement litigation is the public interest. Once a case is filed, 
the general counsel has independent litigation authority. For defensive 
internal litigation, my client is the EEOC as an employer.

                              Senator Paul

    Question 1. Under your directive as EEOC general counsel, what 
quantifiable resources (i.e. time, expenses, employees) have been 
dedicated to so-called systemic cases investigated by the Commission 
where no complaint was filed by an actual employee, former employee, or 
job applicant as opposed to the resources dedicated to complaints filed 
by an aggrieved party unaffiliated with the EEOC or State agency?
    Answer 1. The general counsel does not conduct administrative 
investigations and does not have statutory authority over those 
investigations. Rather, the Commission has designated authority to the 
EEOC's District and Field Directors and the Director of the Office of 
Field Programs to conduct administrative investigations and 
conciliations.

    Question 2. What percentage of litigated cases under your 
leadership have been so-called systemic cases where no complaint was 
filed by an actual aggrieved party? What is the average turnaround time 
for these cases compared to those where complaint was filed by an 
aggrieved party unaffiliated with the EEOC or State agency?
    Answer 2. Of the 106, systemic cases filed during my tenure, 12 or 
11.3 percent did not start with an individual charging party. Four 
cases were based on Commissioner's charges, seven cases were based on 
ADEA-authorized directed investigations, and one case was based on a 
third-party charge. As a general matter, investigations opened based 
Commissioner's charges, directed investigation, and third-party charges 
will virtually always be based on information from or about an 
aggrieved party. Most of the cases involved hiring discrimination or 
age discriminatory retirement plans. We do not maintain information 
about the length of the case based on the source of the initial charge. 
Six of the cases were settled immediately without discovery. The 
remaining cases are ongoing.

    Question 3. Under your leadership, the EEOC has pursued 
unmeritorious cases. One judge even went as far to say that the 
Commission utilized a ``sue first, ask questions later'' litigation 
strategy. What measures are in place to ensure that the cases pursued 
by the Commission have merit? Since your confirmation on December 1, 
2010, what has been the total dollar amount that the EEOC been ordered 
to pay employers because the Commission pursued litigation without 
merit?
    Answer 3. We thoroughly review the merit of each case by looking at 
the facts, law of the circuit and credibility of the witnesses before 
suit is filed. While fees may have been ordered in some cases during my 
tenure as general counsel based on the court's belief that the suit did 
not have merit, the vast majority of such fees were awarded in cases 
that were filed under the authority of prior general counsels and there 
is only one case that was filed under my authority where such fees have 
been ordered. Thus, in four cases filed under the authority of prior 
general counsels, where fees have been ordered and/or paid during my 
tenure, the amount is $1,163,580. Fees ordered in the case filed under 
my authority total $98,904, although I note that this case was filed in 
September 2010.

    Question 4. EEOC has the authority to employ individuals commonly 
referred to as ``testers,'' individuals who apply for jobs they do not 
plan to accept for the sole purpose of investigating discrimination in 
the hiring process--when investigating cases. Under your leadership, in 
how many cases has the Commission used testers either through direct 
utilization by the Commission or by contracting with third-party 
entities to deploy testers to investigate hiring practices?
    Answer 4. The general counsel does not conduct administrative 
investigations and does not have statutory authority over those 
investigations. Rather, the Commission has designated the EEOC's 
District and Field Directors and the Director of the Office of Field 
Programs to conduct administrative investigations and conciliations. 
Under my tenure, no cases have been filed or litigated that involved 
the use of EEOC testers.

    Question 5. Do you believe some jobs can be self-selecting? Do you 
believe employers can be held liable for discrimination in the hiring 
process simply because certain classes of people may not be attracted 
to a particular job or position due to their own preferences?
    Answer 5. I do not know what is meant by ``self-selecting.'' 
However, if the question is whether statistical disparities between 
groups in certain positions can be non-discriminatory, the answer is 
yes, of course. Depending on the evidence in the particular case, 
however, these disparities may also be a reflection of unlawful 
discriminatory practices.

    [Whereupon, at 4:45 p.m., the hearing was adjourned.]

                                  
				[all]
```