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H.R. 4959, EEOC TRANSPARENCY AND 

ACCOUNTABILITY ACT, H.R. 5422, 

LITIGATION OVERSIGHT ACT OF 2014, 

AND H.R. 5423, CERTAINTY IN 

ENFORCEMENT ACT OF 2014 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, SEPTEMBER 17, 2014 

Serial No. 113–67 

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

( 

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

committee.action?chamber=house&committee=education 

or 

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

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(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Tom Price, Georgia 

Kenny Marchant, Texas 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Mike Kelly, Pennsylvania 

Susan W. Brooks, Indiana 

Richard Hudson, North Carolina 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

George Miller, California, 

Senior Democratic Member 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Rush Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Pocan, Wisconsin 

Mark Takano, California 

Juliane Sullivan, Staff Director 

Megan O’Reilly, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

John Kline, Minnesota 

Tom Price, Georgia 

Duncan Hunter, California 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Richard Hudson, North Carolina 

Joe Courtney, Connecticut, 

Ranking Member 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Marcia L. Fudge, Ohio 

Mark Pocan, Wisconsin 

Mark Takano, California 

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C O N T E N T S 

Page 

Hearing held on September 17, 2014 ..................................................................... 1 

Statement of Members: 

Courtney, Hon. Joe, Ranking Member, Subcommittee on Workforce Protections ........................................................................................................... 8 

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

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

Prepared statement of ............................................................................... 7 

Statement of Witnesses: 

Clements, Lynn, A. Director, Regulatory Affairs, Berkshire Associates, 

Inc., Columbia, MD ....................................................................................... 12 

Prepared statement of ............................................................................... 14 

Dreiband, Eric, S., Partner, Jones Day, Washington, DC ............................. 42 

Prepared statement of ............................................................................... 44 

Foreman, Michael, L., Director, Civil Rights Appellate Clinic, Pennsylvania State University, Dickinson, The Dickinson School of Law, State 

College, Pa ..................................................................................................... 28 

Prepared statement of ............................................................................... 30 

Lloyd, William, F., General Counsel, Deloitte LLP, New York, NY ............ 21 

Prepared statement of ............................................................................... 23 

Additional Submissions: 

Mr. Courtney: 

Appendix A: Report, Public Outreach and Education Efforts Concerning EEOC Guidance on Arrest on Convictions Records .............. 75 

Appendix B: The Unvarnished Truth: 2014 Top Trends in Employment Background Checks ..................................................................... 92 

Letter dated Oct. 9, 2014 from Cox, Todd, A., Director, Office of 

Communications and Legislative Affairs, Equal Employment Opportunity Commission ........................................................................... 120 

Fudge, Hon. Marcia, L., a Representative in Congress from the State 

of Ohio: 

Prepared statement of ............................................................................... 139 

Chairman Walberg: 

Letter dated Sept. 16, 2014 from Hartman Sims, Celia, Vice President, Government Relations, Knowledge Universe ............................. 4 

Letter dated Sept. 16, 2014 from Lucas, M. A., Executive Director, 

Early Care and Education Consortium ................................................ 6 

Letter dated Sept. 17, 2014 from nineteen stakeholders ....................... 59 

Letter dated Sept. 25, 2014 from Dombi, William, A., Vice President 

for Law, National Association for Home Care & Hospice .................. 142 

Letter dated Oct. 1, 2014 from Johnson, Randel, K., Senior Vice 

President, Labor, Immigration and Employee Benefits ..................... 150 

Letter dated Oct. 22, 2014 from Heriot, Gail, Member, United States 

Commission on Civil Rights .................................................................. 156 

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H.R. 4959: EEOC TRANSPARENCY AND 

ACCOUNTABILITY ACT; H.R. 5422: LITIGATION 

OVERSIGHT ACT OF 2014; AND H.R. 5423: 

CERTAINTY IN ENFORCEMENT ACT OF 2014 

Wednesday, September 17, 2014 

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

Washington, D.C. 

The subcommittee met, pursuant to call, at 10:03 a.m., in Room 

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

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

Staff present: Molly Conway, Professional Staff Member; Ed 

Gilroy, Director of Workforce Policy; Callie Harman, Staff Assistant; Christie Herman, Professional Staff Member; Nancy Locke, 

Chief Clerk; James Martin, Professional Staff Member; Daniel 

Murner, Deputy Press Secretary; Brian Newell, Communications 

Director; Krisann Pearce, General Counsel; Lauren Reddington, 

Deputy Press Secretary; Molly McLaughlin Salmi, Deputy Director 

of Workforce Policy; Alissa Strawcutter, Deputy Clerk; Juliane Sullivan, Staff Director; Loren Sweatt, Senior Policy Advisor; Alexa 

Turner, Legislative Assistant; Tylease Alli, Minority Clerk/Intern 

and Fellow Coordinator; Melissa Greenberg, Minority Labor Policy 

Associate; Eunice Ikene, Minority Labor Policy Associate; Brian 

Kennedy, Minority General Counsel; and Leticia Mederos, Minority 

Director of Labor Policy. 

Chairman WALBERG. A quorum being present, the Subcommittee 

on Workforce Protections will come to order. Good morning. Let me 

begin by welcoming our guests and thanking our witnesses for joining us today. We will discuss a number of legislative proposals that 

would bring greater transparency and accountability, I trust, to the 

Equal Employment Opportunity Commission (EEOC). 

We are here because every member of this Committee recognizes 

the EEOC as a vitally important agency. It has a responsibility to 

protect the right of all workers to a fair shot at employment opportunities and a workplace free of discrimination. That is what America is about. This is a fundamental human right each and every 

one of us holds dear. No one should be denied a job, have their 

wages cut, or passed over for a promotion because of their race, 

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2 

their gender, religion, or disability. We are here because we want 

the EEOC to do its job and, more importantly, to do its job effectively. 

That is why, in recent months, we have made oversight of EEOC 

a priority. Because we know men and women are being discriminated against. We know bad actors would rather put their own 

hateful prejudice before the talent and the experience of each individual worker. It isn’t right, and it is EEOC’s mission to help stop 

that from happening. Unfortunately, in recent years the EEOC has 

shifted its focus away from that vital mission. Instead, it has spent 

a great deal of time and resources advancing a deeply flawed enforcement and regulatory agenda. 

Employers have fallen under EEOC’s intense scrutiny without 

any allegation of employment discrimination. Charges are being 

filed in federal court with little to no evidence of wrongdoing. Federal judges have harshly and appropriately criticized the agency for 

its shoddy legal work. Each day, the agency harasses employers 

without cause, and every case tossed out of court for legal malpractice is another lost opportunity to help victims of employment 

discrimination. It means the veteran, the injured and disabled, 

while serving our country, will continue waiting for his or her day 

in court. It means the single mom who worked long and hard to 

earn a promotion will continue waiting for her day in court. 

More than 70,000 individual complaints are sitting in front of the 

Commission. The backlog represents thousands of private sector 

workers who believe their rights were violated and who are waiting 

anxiously for the Commission to do its job. As the old saying goes, 

justice delayed is justice denied. It is time to stop denying these 

men and women the justice they deserve. Not only is the EEOC 

dropping the ball with its misguided enforcement priorities, it is 

also pursuing a regulatory scheme that is making it more difficult 

for employers to protect employees and consumers. 

In recent years, states and localities have adopted policies to protect Americans in vulnerable situations that come in contact with 

workers, such as at home and in the classroom. The EEOC has 

eviscerated these efforts. Quite simply, the agency’s edict restricting the use of criminal background checks is putting people in 

harm’s way, including women and children. It is time the agency 

changed course, and that is precisely what the legislation before us 

is intended to do. Among other provisions, the proposals will help 

shine more sunlight on EEOC activities, compel the agency to work 

with employers in good faith to resolve complaints, force the commissioners to do their job and oversee the agency’s enforcement actions, and provide a safe harbor to employers complying with federal, state and local mandates, such as laws requiring criminal 

background checks during the hiring process. 

These are common sense reforms and should enjoy overwhelming 

bipartisan support. By supporting the legislation, you are supporting transparency at a vitally important federal agency. By supporting the legislation, you are supporting the ability of states to 

promote a safe and responsible workforce. By supporting the legislation, you are supporting an effort to get this agency back on track 

to better protect the rights of America’s workers. I urge my colCEWDOCROOM with DISTILLER

3 

leagues to support a more effective, accountable, Equal Employment Opportunity Commission by supporting this legislation. 

I would like to thank my colleague, Representative Hudson, for 

his leadership on this important issue. Again, we are grateful to 

our witnesses for joining us, and I look forward to our discussion. 

Before I recognize the senior Democrat of the Committee, I would 

like to ask for unanimous consent to include in the record letters 

from interested stakeholders supporting the bills we are discussing 

today, including letters from KinderCare learning centers and the 

Early Care and Education Consortium in support of H.R. 5423, the 

Certainty in Enforcement Act of 2014. 

[The information follows:] 

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Insert offset folio 41 here 89724.041
5 

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Insert offset folio 42 here 89724.042
6 

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7 

Chairman WALBERG. With that, I will now yield to my friend and 

colleague, Representative Joe Courtney, for his opening remarks. 

[The statement of Chairman Walberg follows:] 

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

Workforce Protections 

Good morning. Let me begin by welcoming our guests and thanking our witnesses 

for joining us. Today we will discuss a number of legislative proposals that would 

bring greater transparency and accountability to the Equal Employment Opportunity Commission. 

We are here because every member of the committee recognizes the EEOC is a 

vitally important agency. It has a responsibility to protect the right of all workers 

to a fair shot at employment opportunities and a workplace free of discrimination. 

This is a fundamental human right each and every one of us holds dear. No one 

should be denied a job, have their wages cut, or be passed over for a promotion because of their race, gender, religion, or disability. 

We are here because we want the EEOC to do its job, and more importantly, to 

do its job effectively. That is why in recent months we have made oversight of 

EEOC a priority, because we know men and women are being discriminated 

against; we know bad actors would rather put their own hateful prejudice before the 

talent and experience of each individual worker. It isn’t right and it is EEOC’s mission to help stop it from happening. 

Unfortunately, in recent years, the EEOC has shifted its focus away from that 

vital mission. Instead, it has spent a great deal of time and resources advancing a 

deeply flawed enforcement and regulatory agenda. Employers have fallen under 

EEOC’s intense scrutiny without any allegation of employment discrimination. 

Charges are being filed in federal court with little to no evidence of wrongdoing. 

Federal judges have harshly and appropriately criticized the agency for its shoddy 

legal work. 

Each day the agency harasses employers without cause and every case tossed out 

of court for legal malpractice is another lost opportunity to help victims of employment discrimination. It means the veteran, injured and disabled while serving our 

country, will continue waiting for his day in court. It means the single mom, who 

worked long and hard to earn a promotion, will continue waiting for her day in 

court. 

More than 70,000 individual complaints are sitting in front of the commission. 

The backlog represents thousands of private-sector workers who believe their rights 

were violated and who are waiting anxiously for the commission to do its job. As 

the old saying goes, ‘‘justice delayed is justice denied.’’ It’s time to stop denying 

these men and women the justice they deserve. 

Not only is the EEOC dropping the ball with its misguided enforcement priorities, 

it is also pursuing a regulatory scheme that is making it more difficult for employers to protect employees and consumers. In recent years, states and localities have 

adopted policies to protect Americans in vulnerable situations who come in contact 

with workers, such as at home and in the classroom. The EEOC has eviscerated 

these efforts. Quite simply, the agency’s edict restricting the use of criminal background checks is putting people in harm’s way, including women and children. 

It’s time the agency changed course and that’s precisely what the legislation before us is intended to do. Among other provisions, the proposals will help shine more 

sunlight on EEOC activities, compel the agency to work with employers in good 

faith to resolve complaints, force the commissioners to do their jobs and oversee the 

agency’s enforcement actions, and provide a safe harbor to employers complying 

with federal, state, and local mandates, such as laws requiring criminal background 

checks during the hiring process. 

These are commonsense reforms that should enjoy overwhelming bipartisan support. By supporting the legislation, you are supporting transparency at a vitally important federal agency. By supporting the legislation, you are supporting the ability 

of states to promote a safe and responsible workforce. By supporting the legislation, 

you are supporting an effort to get this agency back on track to better protect the 

rights of America’s workers. 

I urge my colleagues to support a more effective, accountable Equal Employment 

Opportunity Commission by supporting the legislation. I would like to thank my colleague, Representative Hudson, for his leadership on this important issue. Again, 

we are grateful to our witnesses for joining us and I look forward to our discussion. 

Before I recognize the senior Democrat of the subcommittee, I would like to ask 

for unanimous consent to include in the record letters from interested stakeholders 

CEWDOCROOM with DISTILLER

8 

supporting the bills we are discussing today, including letters from KinderCare 

Learning Centers and the Early Care and Education Consortium in support of H.R. 

5423, the Certainty in Enforcement Act of 2014. 

With that, I will now yield to my colleague, Representative Joe Courtney, for his 

opening remarks. 

Mr. COURTNEY. Thank you, Chairman Walberg, and thank you to 

all the witnesses for finding time to join us here today. And again, 

at the outset just so I don’t forget, I would just ask unanimous consent to submit a statement from Congresswoman Marcia Fudge, 

who is over at the Agriculture Committee. They are having a hearing today that conflicts with her attendance, but she was very adamant she wanted to make sure her passionate comments are entered for the record. 

[The statement of Ms. Fudge follows:] 

Fudge, Hon. Marcia, L., a Representative in Congress from the State of 

Ohio 

Chairman Walberg, Ranking Member Courtney, and members of the Committee: 

I appreciate the opportunity to submit this statement for the record to express 

my opposition to this package of bills offered by the majority. These bills are aimed 

squarely at stifling the work of the Equal Employment Opportunity Commission 

(EEOC). 

Fifty years ago we passed the Civil Rights Act of 1964, which established the 

EEOC. When employees believe they have been discriminated against at work, they 

rely on this Commission to investigate the merits of each allegation to the fullest 

extent. Although litigation is a critical component to the success of the EEOC’s mission to stop and remedy unlawful employment discrimination, it is the last stage 

in a process that includes multiple attempts to resolve an allegation of discrimination. In fact, the EEOC has been able to consistently obtain monetary and nonmonetary relief for victims in 90% of its cases. 

The package of bills proposed by the majority each place grave limitations on the 

ability of the EEOC to achieve its goals. While the intent of these bills is to prevent 

the EEOC from ‘‘overreach’’, the end result will simply make it harder for the agency to fulfill its statutory duties through administratively burdensome and duplicative information gathering. Of the most egregious bills offered, however, is H.R. 

5423, The Certainty in Enforcement Act of 2014. 

If enacted H.R. 5423 would amend Section 703 of the Civil Rights Act, going far 

beyond background checks and criminal background checks, to allow states and localities to exploit requirements currently protected under the Voter Rights Act. In 

effect, states and localities would be exempt from Title VII employment discrimination liability. 

This is clearly a step backward in our civil rights laws. 

Tasked with enforcing the federal laws which combat illegal discrimination 

against an employee on the basis of race, color, religion, sex, national origin, age, 

disability or genetic information, the EEOC has drastically expanded the diversity 

of America’s workforce. It is my hope that as the Committee hears from today’s witnesses, my colleagues will recognize the harm these bills will have on employers and 

businesses across the country. 

Chairman WALBERG. Hearing no objection, and appreciating 

these comments, they will be entered. 

Mr. COURTNEY. Thank you, Mr. Chairman. Mr. Chairman, this 

summer we celebrated the 50th anniversary of the 1964 Civil 

Rights Act, one of the most significant steps in the fight for equality in this nation’s history. Title VII of this landmark law outlaws 

workplace discrimination on the basis of race, color, religion, sex, 

or national origin. These provisions help ensure that American 

workers are judged on the work they do, not on who they are, 

where they are from or what they look like. Yet even with all the 

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9 

progress we have made in the last 50 years, there is much more 

work to be done. 

Too many Americans suffer from discrimination by their employer even today. For example, just last year there were nearly 

100,000 new charges of discrimination filed with the EEOC, including 1,019 Equal Pay Act charges and over 67,000 Title VII charges. 

I was hopeful when the subcommittee began to examine the work 

of EEOC last year we would look at ways to join together to 

strengthen our civil rights laws and build upon the critical improvements made through measures like the Americans With Disabilities Act amendments and the Genetic Information Nondiscrimination Act. Instead, I would argue, we are wasting time 

here with a set of misguided bills that impede the operations of the 

EEOC and attempt to gut Title VII, turning the clock back on civil 

rights protections enacted more than 50 years ago. 

These bills would decimate the EEOC’s ability to safeguard 

American workers from discrimination, violate long-standing rules 

regarding attorney/client confidentiality and do a great disservice 

to the nation. We just heard opening comments talking about how 

justice delayed is justice denied. If you look at what these bills do, 

and I am 27 years as a litigator before I came to Congress, in the 

name of transparency it would cripple the ability of a client of the 

Commission to deal with their attorney in terms of engaging in any 

kinds of administrative action or litigation strategy. It would, in 

the name of oversight, basically force the Commission to micromanage every decision in terms of commencing litigation. How 

that, on earth, would end delayed process makes any sense, again, 

I think just common sense tells you that would add additional 

steps and delay in terms of the agency being able to execute its 

duty. 

And lastly, 5423—which basically turns the federal supremacy 

clause on its head and puts state laws as a preemptive safe harbor 

for employers—in my opinion, on the 50th anniversary of the Civil 

Rights Act, is grotesque. I mean, this is allowing a race to the bottom in terms of states who don’t—haven’t stepped up and enacted 

laws to protect people from racial discrimination, from gender discrimination. And those states exist out there. And to basically empower them to override the national commitment that we made 50 

years ago to uphold equal treatment under the law for people who 

are simply trying to get ahead in their—in life—as employees. It 

is just unbelievable to me. 

The process that we are engaged in here today, sadly, is par for 

the course in terms of the way this subcommittee has operated. 

Our side got notice of this hearing eight days ago. The 14-day courtesy rule for the Commission, which is well understood—you know, 

we know that for the last three and a half years—was deftly avoided by the majority. We get one witness that we can invite to testify, 

and I thank Mr. Foreman for being here to, again, in an unbalanced lineup, defend a position which I think, you know, we will 

hear loud and clear here today. But, you know, what is missing 

here today is the agency. 

And all we had to do was, frankly, pick up the phone and call 

our side with enough notice and we could have accommodated that. 

And actually had a real dialogue today to talk about what is actuCEWDOCROOM with DISTILLER

10 

ally happening out there with the department. What I think we are 

gonna hear is that despite all the claims of, you know, overzealous 

litigation and ineffective outcomes, we are going to see an agency 

which did great work in 2013 in terms of recovering damages for 

workers who were discriminated against. That the number and 

percentage of cases that went all the way to litigation is less than 

1 percent. So, frankly, we are chasing a problem which I am—certainly, from the standpoint of Congress doesn’t exist. 

If there are individual cases out there where people are unhappy 

with the agency, I think all of us are more than happy to accept 

those calls, accept that mail, intervene with the Secretary. You 

know, the Chairman knows we have had two instances this year 

where we have been successful in terms of getting the Secretary to 

pull back cases of overzealous enforcement of various laws. So it is 

not like we are dealing with an agency that refuses to respond or 

listen to reasonable points of view in terms of criticisms of the way 

they operate. 

So, you know, I mean, we have 72 hours left before—everybody 

in this building knows we are going home until after the election. 

So we are bringing up legislation which, you know, it is just not 

the appropriate response to any of the, maybe, concerns that people 

are expressing here today to actually talk about passing a bill 

which would short-circuit a case that is pending before the Supreme Court. I mean, it is just—it is embarrassing, from my standpoint. This is not what Congress should be focused on right now 

in terms of people across this country who are struggling in terms 

of advancing themselves. And clearly, the middle class and working 

families are struggling in terms of a tough economy but, frankly, 

we should be knocking down the last remaining barriers to people 

that they face in terms of racial discrimination, gender discrimination, age discrimination. 

That should be the focus of this subcommittee. So, again, we look 

forward to the witnesses’ testimony. And, again, we hope, at some 

point, you know, we are gonna sort of realize that we are just sort 

of grinding our gears here with these types of hearings. And, hopefully, we can try and come up with a new model, if not in the lame 

duck session, with the next Congress so that we can, as a nation, 

take that 50th anniversary and celebrate it the right way—which 

is to advance equal treatment under the law under Title VII in the 

Civil Rights Act. 

I yield back. 

[The statement of Mr. Courtney follows:] 

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

Subcommittee on Workforce Protections 

Good morning. Thank you Mr. Chairman. And thank you to the witnesses for 

being here. 

This summer we celebrated the 50th anniversary of the 1964 Civil Rights Act, one 

of the most significant steps in the fight for equality in this nation’s history. 

Title VII of this landmark law outlaws workplace discrimination on the basis of 

race, color, religion, sex, or national origin. These provisions help ensure that American workers are judged on the work they do – not on who they are, where they 

are from, or what they look like. 

Yet, even with all the progress we’ve made in the past 50 years, there is more 

work to be done as too many Americans suffer from discrimination by their employer even today. For example, just last year there were nearly 100,000 new 

charges of discrimination filed with the Equal Employment Opportunity CommisCEWDOCROOM with DISTILLER

11 

sion (EEOC)—including 1,019 Equal Pay Act charges and over 67,000 Title VII 

charges. 

I was hopeful that when the subcommittee began to examine the work of the 

EEOC last year, we would look at ways to join together to strengthen our civil 

rights laws and build upon the critical improvements made through measures like 

the Americans with Disabilities Act Amendments and the Genetic Information Nondiscrimination Act. 

Instead, we are wasting valuable time with a set of misguided bills that impede 

the operations of the EEOC, and attempt to gut Title VII, turning back the clock 

on civil rights protections enacted more than 50 years ago. These bills would decimate the EEOC’s ability to safeguard American workers from discrimination, violate 

longstanding rules regarding attorney-client confidentiality, and do a great disservice to the nation. 

We should instead be finding opportunities to work together to bolster this nation’s civil rights laws, focusing on legislation that combats prejudice and works to 

ensure that no person faces discrimination in the classroom or workplace because 

of their sexual orientation or gender identity. The Fair Employment Protection Act, 

Paycheck Fairness Act and Employment Non Discrimination Act would all help to 

strengthen our civil rights laws and should be the focus of this hearing. 

Thank you Mr. Chairman, and thanks again to our witnesses for your participation. I yield back the balance of my time. 

Chairman WALBERG. I thank the gentleman, and I detect a disagreement between you and me on this issue. But on Constitution 

Day, we are doing our constitutional responsibility. We have not 

been given a vacation yet. And I think that it is good that we are 

here and it is good to have disagreements. And we hopefully can 

work to satisfactory conclusions. And that means we continually 

work. 

It is now my pleasure to introduce our panel of distinguished witnesses. First, Ms. Lynn Clements is director of regulatory affairs 

at Berkshire Associates of Columbia, Maryland. Prior to joining 

Berkshire Associates, she served in several positions at the Department of Labor and the Equal Employment Opportunity Commission, including as acting director, deputy director of the policy division for the Office of Federal Contract Compliance Programs. Welcome. 

Mr. William Lloyd serves as general counsel for Deloitte LLP in 

New York, New York. As general counsel, Mr. Lloyd is responsible 

for managing the organization’s legal affairs, including governance, 

employment litigation, and regulatory matters. Thank you for 

being here. 

Mr. Michael Foreman is clinical professor of law and director of 

the Civil Rights Appellate Clinic at Penn State University’s Dickinson School of Law in Carlisle, Pennsylvania. Mr. Foreman focuses 

on appellate representation in civil rights issues and employment 

discrimination. He has previously served as acting deputy general 

counsel for the U.S. Commission on Civil Rights. Welcome. 

Mr. Eric Dreiband is a partner at Jones Day law firm in Washington, D.C. From 2003 to 2005, he served as the general counsel 

of the Equal Employment Opportunity Commission. Prior to his 

EEOC service, Mr. Dreiband served as deputy administrator of the 

U.S. Department of Labor’s Wage and Hour Division. Welcome. 

Thank you all for being here. Before I recognize each of you to 

provide your testimony, let me briefly explain our lighting system, 

which I think is familiar to you. If you have been on the highway, 

you have had red, green, and yellow lights. Green gives you your 

four minutes to speak, yellow gives a warning that a minute is left, 

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12 

and red we hope that you wrap up your remarks as quickly and 

concisely as possible. I will hold our Committee members to the 

same in asking questions of you, following your statements. Again, 

we will each be given five minutes to ask the questions of you, following your five minutes of testimony. 

And so now let me begin my recognizing Ms. Clements for your 

five minutes. 

Press the button on your microphone, please, there. 

STATEMENT OF MS. LYNN A. CLEMENTS, DIRECTOR, REGULATORY AFFAIRS, BERKSHIRE ASSOCIATES, INC., COLUMBIA, MD 

Ms. CLEMENTS. Good morning, Mr. Chairman and members of 

the subcommittee. My name is Lynn Clements. I am the director 

of regulatory affairs at Berkshire Associates, a certified small business enterprise that helps other small businesses comply with their 

equal employment opportunity and affirmative action obligations. I 

very much appreciate the opportunity to share my perspectives 

with you today, and ask that my written testimony also be entered 

into the record. 

For almost half of my career, I served as a staff member at the 

EEOC and the Office of Federal Contract Compliance Programs, 

where I joined a dedicated group of career staff who tirelessly work 

to open the door of opportunity. I have a deep respect for my 

former colleagues, these agencies, and their mission. It is my experience that employers are similarly dedicated to creating fair and 

inclusive workplaces and to complying with the multitude of laws 

that they must follow. This is increasingly a difficult task. 

On an almost daily basis, I help employers answer real-life questions about their employment decisions and hiring practices. I have 

a better appreciation now for how difficult it is for an employer, especially a small employer, to understand and comply with the 

lengthy documents, policy documents, and rules that we publish as 

regulators. My experiences have shown me that an enforcement 

agency can only be truly effective when it is respected by the public 

it serves and regulates. A robust and thoughtful, deliberative process and neutral fact-finding are critical to earning that respect. Unfortunately, as an outsider now looking in, I believe that the EEOC 

has strayed from several of its original good government mandates. 

Increasingly, I have found that the agency does not always investigate or conciliate in good faith, even though such efforts are 

statutorily required. I have worked with employers both large and 

small who have endured individual charge investigations spanning 

several years; surprise notice of a charge by hand delivery, with a 

request for immediate access by an army of investigators, much 

like an FBI raid; requests for extensive information, immediately 

followed by a predetermination settlement offer that sends a very 

clear message pay up or endure a burdensome investigation; and 

findings of class discrimination without a class investigation. 

Most employers and, indeed, most employees are surprised to 

learn that the commissioners do not deliberate on the filing of most 

lawsuits. Understandably, the public expects that the full force of 

the federal government will only be brought to bear after careful 

deliberation. 

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In the case of the EEOC, Congress determined that the deliberative process should be handled by a group of five officials with diverse backgrounds, experiences, and perspectives. When I was at 

the Commission, it generally filed about 400 lawsuits each year. 

Due to the delegation of authority to its general counsel, also presidentially appointed, the commissioners generally reviewed between 

50 and 75 of these litigation proposals. 

I understand, however, that the current Commission only reviews a handful of cases; as few as 15 in almost a recent three year 

period. In the business world, a similar delegation of authority 

would really be the equivalent of unveiling a new product without 

the CEO ever even knowing about it. Quite simply, placing the imprimatur of the whole Commission on a proposed legal theory garners a level of respect by the regulated community that is simply 

not possible when decisions are made by a single general counsel 

or regional attorney, no matter their skill. 

Perhaps most troubling is the impact on policymaking. Make no 

mistake about it, the agency is making policy when it decides to 

litigate. Thus, the process by which the EEOC arrives at those decisions is just as important as whether the agency ultimately prevails. The Commission’s efforts in one particular area are instructive. In April of 2012, the Commission issued policy guidance regarding an employer’s use of arrest and conviction records. Although this policy guidance was voted on, it was not subject to public comment. Unfortunately, the Commission failed to provide a 

clear path for employers, particularly those who must weigh the 

competing interests of the Commission’s position and other state 

and local laws aimed at public safety. 

What this means is that those hard decisions will now be made 

through litigation by the Commission, some of which may never be 

reviewed by the Commissioners before it is voted on. Ensuring 

equal opportunity is an important federal goal. How this work is 

accomplished matters, and shining more sunlight on the agency 

will help it grow and succeed at its mission of ensuring equal employment opportunity. 

Thank you. 

[The statement of Ms. Clements follows:] 

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Chairman WALBERG. Thank you. 

Mr. Lloyd, we recognize your five minutes. 

STATEMENT OF MR. WILLIAM F. LLOYD, GENERAL COUNSEL, 

DELOITTE LLP, NEW YORK, NY 

Mr. LLOYD. Thank you. Chairman Walberg, Ranking Member 

Courtney, members of the Committee— 

Chairman WALBERG. I am not sure your mic is on there. 

Mr. LLOYD. There we go. Sorry, I am a novice. 

Chairman Walberg, Ranking Member Courtney, members of the 

Committee, thank you for inviting me to testify today. I am Bill 

Lloyd, the general counsel of Deloitte LLP. I am grateful for the 

invitation to testify because today’s hearing is focused on a number 

of bills that I believe would improve the processes within, and the 

accountability of, the EEOC. 

Deloitte is one of the world’s largest professional services firms, 

providing audit, tax, and advisory services to individuals, businesses of all sizes, and to federal, state and local governments and 

community organizations. We have roughly 65,000 people in 

Deloitte, and about 4 percent of those are the owners of the business: partners. I want to make it clear that Deloitte strongly supports the goals of eliminating workplace discrimination and fostering true equality of opportunity. We also strongly support the 

EEOC’s mission and we appreciate the dedication of its staff. 

Deloitte is proud that we have consistently been recognized as a 

leader in inclusion and in developing highly successful women and 

minorities in our large firm. 

Although we are strong supporters of the EEOC’s mission, our 

recent experience with the EEOC suggests that its processes and 

transparency could use some improvement. We need to ensure that 

the EEOC enforces its important mandate in ways that are consistent with what Congress contemplated in the respective statutes 

that the EEOC is tasked to enforce. And we need to ensure that 

important decisions about EEOC enforcement policy and allocation 

of scarce resources are made by the commissioners who are appointed by the President and confirmed by the Senate. 

The EEOC staff has recently challenged the fundamental structure of Deloitte’s business, our decision to organize as a limited liability partnership. The staff has alleged that Deloitte is not a true 

partnership and, therefore our retirement policy for partners violates the Age Discrimination in Employment Act. The impact of the 

EEOC’s legal theory raises significant economic and policy questions for Deloitte and all limited liability partnerships across the 

country, which will negatively impact many businesses. Congress 

did not grant jurisdiction to the EEOC to act on behalf of owners 

of businesses. Yet that is exactly what the EEOC is doing. 

Deloitte is a true partnership, and our partnership agreements 

and governance processes reflect that. State professional regulations require that we conduct our business as a partnership. 

Deloitte’s partners voluntarily enter the partnership agreeing to retire at age 62, and each partner is highly compensated both during 

the period of partnership and after retirement. In fact, many partners choose to retire before age 62. Thus, the EEOC is seemingly 

advocating on behalf of this group of people in lieu of seeking out 

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true victims of discrimination, the very people about whom Mr. 

Courtney spoke. 

For every case of questionable validity that the EEOC brings, it 

requires that the agency forego many worthy cases of discrimination on behalf of individuals who have fewer resources to pursue 

grievances and genuinely need the protection of regulators in the 

government. 

I am also concerned by the Commission’s extensive delegation of 

authority to the general counsel to initiate litigation. I am not a 

labor attorney, and I was very surprised to learn that the commissioners do not review the overwhelming majority of cases filed by 

the EEOC. After all, Title VII permits only the five-member commission to bring a civil action. 

But my understanding is that, in practice, the general counsel 

determines whether any particular case is subject to review by the 

Commission. This practice, in my view, should concern all legislators and taxpayers. In the matter involving Deloitte, the EEOC has 

been conducting a directed investigation since 2010. We are concerned that if conciliation fails the general counsel will file a lawsuit under the delegation of authority without consideration and a 

vote of the commissioners, even though a similar matter involving 

a similar partnership came before the commissioners last year, and 

the commissioners elected not to file litigation. 

This is not only a matter of great public controversy but, given 

the powers and rights of Deloitte’s partners, it is a novel interpretation of law that the Commission itself clearly should consider and 

approve before any litigation is commenced. 

We are not aware of any retired partner who has complained to 

the EEOC about age discrimination at Deloitte. And ironically, 

Deloitte’s retiring partners are overwhelmingly white males, while 

newly-admitted partners over the past decade have been significantly more diverse. Eliminating the retirement age would ultimately limit the partnerships available to an increasingly diverse 

population of our employees. 

I thank the Committee for the opportunity to share our perspective, and I will be happy to answer any questions. Thank you. 

[The statement of Mr. Lloyd follows:] 

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Chairman WALBERG. Thank you. 

Mr. Foreman, we will recognize you now for your five minutes. 

STATEMENT OF MR. MICHAEL L. FOREMAN, DIRECTOR, CIVIL 

RIGHTS APPELLATE CLINIC, PENNSYLVANIA STATE UNIVERSITY, DICKINSON SCHOOL OF LAW, STATE COLLEGE, PA 

Mr. FOREMAN. Thank you, Chairman Walberg, Ranking Member 

Courtney, and members of the Committee for the ability to testify 

on these pieces of legislation. I am sure there are good purposes behind them but, as my testimony reflects, they are premature, they 

are unnecessary. I think more importantly, they distort the function of what Title VII was passed to do and it will thwart any type 

of effective enforcement of the federal laws. 

Now, I know two of my colleagues that are testifying today, and 

they both worked at EEOC. And they know first-hand the ugliness 

of employment discrimination, and they know first-hand that you 

need to have an effective enforcement agency to fight that evil. 

They know that. We may not agree on much, but I think we will 

agree on that point. Now, Mr. Dreiband said it best. Notwithstanding EEOC’s achievement, we have much work ahead of us. 

Unlawful discrimination anywhere remains a threat everywhere. 

Accordingly, we will continue to strive to obtain meaningful relief 

for victims of discrimination and achieve equality in the workplace. 

They are his words when he was general counsel of the EEOC, 

not mine. They were true then and they are true not—now. And 

these bills would strip EEOC’s enforcement ability. For example, 

the Oversight Act would require a vote of commissioners, a disclosure publicly of that vote, and that vote would be posted within 30 

days of starting of litigation. Now some may say, well, why is that 

a problem? Because much of that information is already available. 

Well, the reason it is a problem because that would create an affirmative defense for every employer in this country. 

What if EEOC does not post? What if someone challenges the 

vote? That is subject to discovery. That is not hysteria. That is exactly what is happening in the Mach Mining case. The employer 

community is arguing that is an affirmative defense. And what is 

the remedy? The remedy is the case gets dismissed and the innocent victims never see the light of day. And that is what is troubling about those type of bills. 

The Transparency Act would take resources—the limited resources—the EEOC has, and turn them into a data reporting and 

website management. There are so limited resources to fight employment discrimination, they should be directed toward fighting 

discrimination. 

As Congressman Courtney pointed out, there are obvious constitutional problems with exempting state and local governments 

from Title VII. I give the example, in my written materials, that 

it would basically overrule a case like Griggs v. Duke Power—as it 

applies to state and local governments. It is something we should 

not be doing at this time. 

These are basically a remedy in search of a problem. There is no 

pattern of EEOC abuse. If you look at the number of cases EEOC 

litigates, they are doing a wonderful job. Their enforcement record 

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should be applauded and more enforcement agencies should work 

like they do. 

There are a few limited cases where they are sanctioned. And 

that shows that there is a process in place. EEOC is required to 

play by the same rules of all parties. And if they act improperly 

in a limited number of cases, rule 11 exists and there is a provision 

of Title VII that holds them accountable. And they can be sanctioned. So that shows the system works. We do not need to add another level of sanctions to EEOC thwarting their ability to do their 

effective job. 

And then finally, several of the, quote—‘‘key parts’’ of this legislation are before the courts now. Mach Mining has precisely the 

issue of what does the EEOC need to do in their conciliation efforts 

and what happens if they do not do it. That case has been briefed. 

My colleague, Mr. Dreiband, filed a brief this week in support of 

the business community. The court system has it, the Supreme 

Court will answer that question, and we will know what that 

means under Title VII. There should not be anticipatory legislation 

to deal with that. 

Similarly, there is litigation in Texas that was filed challenging 

EEOC’s promulgation of the criminal enforcement guidance. Let 

the judicial system work, and there will be a determination of 

whether EEOC had that authority and what that means. Don’t 

short-circuit the process. And I would just end, if I could, The Wall 

Street Journal, in their summary of sort of this issue, made the 

quote about EEOC, ‘‘It is just not saber rattling anymore. The 

EEOC has shown that it means business.’’ Isn’t that the EEOC 

that Title VII expected? And isn’t that the EEOC that every one 

of us wants—one that enforces the law? And these bills would hamper that ability. 

Thank you for your time, and I am available to take any questions. 

[The statement of Mr. Foreman follows:] 

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Chairman WALBERG. Mr. Foreman, thank you. 

Mr. Dreiband, we recognize you for your five minutes. 

STATEMENT OF MR. ERIC S. DREIBAND, PARTNER, JONES DAY, 

WASHINGTON, D.C. 

Mr. DREIBAND. Good morning, Chairman Walberg, Ranking 

Member Courtney, and members of the subcommittee. Thank you 

for inviting me to testify today. My name is Eric Dreiband, and I 

am a partner at the law firm of Jones Day here in Washington, 

D.C. Mr. Chairman, as you noted, I previously served as the general counsel of the United States Equal Employment Opportunity 

Commission. And in that role, I was privileged to work with Lynn 

Clements and many other talented and dedicated EEOC officials. 

It is with this background that I appear today at your invitation 

to speak about three bills that are pending before this subcommittee. 

First, I will start by discussing the Litigation Oversight Act of 

2014. This bill would ensure that the EEOC cannot bring major or 

controversial litigation without a full up or down vote by a majority 

of the EEOC’s five-member bipartisan Commission. Congress has 

vested the EEOC’s attorneys with the authority to appear for, and 

represent, the Commission in any case in court, but to do so only 

at the direction of the Commission. As a result, the Commission 

has historically considered, deliberated about, and voted on whether to file lawsuits recommended by the Commission’s general counsel. 

In recent years, however, the number and percentage of litigation 

matters presented to the commissioners has diminished significantly. According to one current EEOC commissioner, the Commission voted on three of 122 lawsuits filed during an entire year. 

These numbers give the impression of a commission made up of 

potted plants and disinterested bystanders. 

The available evidence suggests that the current strategy is not 

as effective as past practices. For example, the amount of money 

recovered by the EEOC’s litigation program in the last two fiscal 

years is lower than at any point since the EEOC started reporting 

this data. Moreover, the EEOC has recently suffered several embarrassing losses. Several courts have dismissed all, or significant 

parts of, several EEOC lawsuits. 

Other courts have sanctioned the EEOC, and the taxpayers are 

on the hook for the cost of these cases and for paying sanctions. 

And these kinds of embarrassing losses and sanctions damage the 

commission’s credibility. The Litigation Oversight Act may help restore the commission’s oversight of the agency’s litigation program. 

The second bill before this subcommittee, the EEOC Transparency and Accountability Act, would provide for judicial review of 

the EEOC’s pre-suite conciliation efforts. The civil rights laws generally authorize the EEOC to file a lawsuit only after it has been 

unable to secure a pre-suit conciliation agreement from a potential 

defendant. In December of 2013, a U.S. court of appeals in Chicago 

became the first court to hold that EEOC’s compliance with this 

congressionally-mandated obligation is subject to virtually no judicial review, and the Supreme Court is now considering the issue. 

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The EEOC Transparency and Accountability Act would settle the 

issue by statute. The bill would require the EEOC to engage in 

bona fide conciliation, including by identifying its claims and any 

putative victims thereof before EEOC files a lawsuit. These provisions may preempt the sue first, ask questions later mentality that 

has troubled several federal judges and led to humiliating dismissals of several EEOC lawsuits. 

The third bill pending before this subcommittee is the Certainty 

in Enforcement Act of 2014. This bill would provide that an employer does not violate the Civil Rights Act if it complies with another federal, state or local law in particular areas. 

Some laws restrict employers from hiring persons with criminal 

convictions, and the EEOC recently issued enforcement guidance to 

suggest that such blanket hiring restrictions may violate the Civil 

Rights Act. The Certainty in Enforcement Act may provide a useful 

fix to this conflict in times—in many times, employers feel like they 

are caught between choosing to comply with one law and risk violating the Civil Rights Act. 

Nonetheless, for purposes of greater clarity, the subcommittee 

might consider a few amendments to the bill as it is presently 

drafted. First, you may consider limiting the bills to laws that require employers to conduct criminal background checks or credit 

history checks. This seems to be the primary concern of the bill. 

Second, you might also consider limiting the bill to allow employers to follow laws that are targeted to hiring practice in certain 

safety-sensitive areas like health care and child care, where people 

are serving very vulnerable individuals like children and the sick 

and injured. Third, adding the language that specifically addresses 

disparate impact liability—that is, so-called unintended discrimination—may help clarify that the Certainty in Enforcement Act is in 

no way intended to sanction intentional discrimination. 

Thank you for the opportunity to testify here today, and I look 

forward to your questions. 

[The statement of Mr. Dreiband follows:] 

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Chairman WALBERG. Thank you, and thanks to each of the witnesses for your statements. And we look forward to those being 

broadened under questioning. Before I move to recognize my colleagues for questions, pursuant to Committee rule 7(c), all members will be permitted to submit written statements to be included 

in the permanent hearing record. And without objection, the hearing record will remain open for 14 days to allow such statements 

and other extraneous material referenced during the hearing to be 

submitted for the official hearing record. 

I would also like to ask for unanimous consent to include in the 

record a letter of support signed by 19 stakeholders for all three 

bills we are discussing today, including professional organizations, 

health care organizes, construction, food service, you name it. 

[The information follows:] 

[Additional submission by Chairman Walberg follows:] 

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Chairman WALBERG. So without objection, hearing none, they 

will be included in the record. 

I will now recognize the Chairman of the full Committee, Education and Workforce, the gentleman from Minnesota, Chairman 

Kline. 

Mr. KLINE. Thank you, Mr. Chairman. Thanks very much to the 

witnesses for being here today for your testimony. 

Ms. Clements, let me start with you because I want to get at this 

issue of preemption, federal law, state law, and all that sort of 

thing that was raised by the Ranking Member and others. The 

EEOC’s criminal background checks guidance states that the fact 

a criminal background check was conducted in compliance with a 

state or local jurisdiction requirement does not shield the employer 

from liability. That is your testimony, and what we are talking 

about here. And yet there are numerous federal, state, and local 

laws requiring the use of criminal background checks. 

For example, the Senate passed in March, and the House passed 

this week, the Child Care and Development Block Grant Act, which 

requires states to have policies and practices in place requiring 

background checks for child care providers and prohibiting employment in federally-funded child care programs of those convicted of 

violent or sexual crimes. So in this case, we passed, and we hope 

the President will sign and all that, a law that requires states to 

have such practices and policies in place. So how is a child care 

provider, or another small business, supposed to choose between 

following state law and subjecting itself to EEOC prosecution? 

It just seems like that is really between a rock and a hard place. 

I want to give you the opportunity to expand on that for just a 

minute. 

Ms. CLEMENTS. I absolutely agree with you. It is those types of 

examples that really illustrate the difficult position that the 

EEOC’s enforcement guidance put employers in. It is a Hobson’s 

choice, with no good answer at this point. And really, I would ask 

what exactly is an employer supposed to do if they conduct the individualized assessment that is contemplated by the EEOC’s guidance and determine that the state or local requirement is not jobrelated? They still have to follow it. And if the EEOC’s answer is 

that this will never happen, that these types of requirements will 

always be job-related, then they should have said so in the guidance so that employers could avoid—especially small employers— 

could avoid this costly individualized assessment. 

I don’t think these difficult decisions should be made on the 

backs of private employers. They are simply trying to follow the 

law. They don’t make the law. 

Mr. KLINE. Thank you. 

Mr. Lloyd, according to your testimony, in its reasonable cause 

determination the EEOC demanded elimination of the retirement 

provision, extension of offers to reinstate retired partners, and the 

creation of a compensation fund for those retirees forced to retire 

early. Could—we just probably have a couple of minutes here on 

the clock. Could you sort of briefly describe Deloitte’s business 

model and what the effect of this would be on that? And just—I am 

very concerned when you get something like the EEOC dictating 

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what your business model should be. But explain why this is a 

problem. 

Mr. LLOYD. Thank you, Chairman Kline. It is a big problem for 

us. As I said, we have an ownership structure, partners who are 

about 4 percent of our total population. And I could go into great 

detail about why they are real partners. And we are required to 

have that model. Not necessarily 4 percent, but to be a partnership 

under various state regulations relating to certified public accountants and the way they can organize. Beyond that, the retirement 

system we have in place helps ensure that we have appropriate 

succession planning, that we can plan for the future. Because 

under many statutes, such as Sarbanes-Oxley in the audit practice 

for example, we have to rotate people into the positions of leading 

the audits for independence purposes. 

And thus, it is very important to us that we have virtual certainty about how long people can serve in the role as partner, these 

leadership positions of all sorts within the firm, and plan so that 

we have orderly transitions and we groom people to move into 

those positions to comply with the regulations that we are subject 

to. 

Mr. KLINE. Okay, I am about to run out of time here, Mr. Chairman. 

I will yield back. Thank you. 

Chairman WALBERG. I thank the gentleman, and I recognize the 

Ranking Member of this Committee, the gentleman from Connecticut, Mr. Courtney. 

Mr. COURTNEY. Thank you, Mr. Chairman. 

Mr. Foreman, just to sort of focus for a second on the background 

check guidance activity by the Commission. Again, just for the 

record—and I am pretty sure you have followed this pretty closely—but the Commission, as a whole, did actually act on this. This 

was not something, again, that delegated staff created in terms of 

that guidance. Isn’t that correct? 

Mr. FOREMAN. Yes, that is correct. 

Mr. COURTNEY. Yes, and it was a bipartisan vote of the Commission. And again, it was trying to get at what is a real-life impact 

out there, which is that criminal background checks if not used, 

you know, sensibly, can have the net effect of harming or excluding 

people from employment who—particularly the African-American 

and Latinos. And, again, that is something that the Commission 

studied before it moved forward. Isn’t that correct? 

Mr. FOREMAN. Yes, absolutely. The data on that point is not in 

dispute that if you implement either arrest records or criminal 

background histories, and screen based upon that, you are going to 

screen out statistically significant parts of minority populations. I 

mean, the data is uncontroverble on that. 

Mr. COURTNEY. But it also made clear that employers are not required to just ignore it entirely. I mean, there was clear latitude 

that, you know, that sort of guidance allows for common sense decision-making by employers. So that the nature and gravity of prior 

criminal conduct, the time that has elapsed, the nature of the job, 

and how—I mean, it all provides safe harbor for employers who— 

you know, again, if they have got somebody they know is a violent 

offender that they should not be in a, you know, child care center 

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or a health care facility or, frankly, almost any employment setting. 

I mean, isn’t that correct? I mean, they recognize common sense 

opportunities for employers not to be helpless with information 

they know about individuals. 

Mr. FOREMAN. And absolutely in the guidance did not plow any 

new ground. I mean, if I could just take a moment, it actually 

started based upon a case called Green v. Missouri Railroad, where 

they said you can take these into consideration, but there needs to 

be an individual determination. Does this really impact the persons 

to do the job? EEOC then issued guidance that was approved by, 

then—now associate justice Clarence Thomas, saying yes, that 

makes perfect sense. The case went to the Third Circuit, El v. 

Septa. And the Third Circuit said we would like more guidance 

from EEOC on this so that we could actually defer. 

And then EEOC does hearings and develops very detailed guidance, but has its foundation in Green and what Associate Justice 

Clarence Thomas said was good policy, and is simply out there now 

so that employers know what the rules are. 

Mr. COURTNEY. So, again, all I would just say is that, you know, 

if there are issues that, you know, you feel are still a problem out 

there, Ms. Clemens—I mean, frankly, you know, that is something 

that I think that all of us up here are more than happy to present 

to the Commission and support in terms of them to reexamine or 

reevaluate how it is being implemented. But 5423 is a blunt instrument which even Mr. Dreiband’s testimony acknowledged, you 

know, kind of sets in motion a mechanism which sweeps up a much 

more damaging path as far as the—what it could do to individuals, 

who have nothing to do with the issue of criminal background 

checks. 

My few remaining seconds here. Mr. Foreman, can you talk 

about the claim of litigation crisis again in terms of what the real 

numbers are out there? I mean, we heard sue first, ask questions 

later. I mean, again, what I am seeing is really almost the opposite 

in terms of how much actually goes to court. 

Mr. FOREMAN. Well, again, the data is out there that EEOC has 

done a tremendous job in recouping damages and filing all suits. 

There are several cases that repeatedly get played back as EEOC 

gone awry. And one thing I think this Committee really needs to 

understand, if you talk about Kaplan, if you talk about People 

Mart, I think Crist is one of those also. That all of these bills would 

not have changed the outcome in those cases at all. Why do I say 

that? Because Kaplan and Peoplemark were approved by the commissioners. So it went through the process and they approved that 

litigation. 

And in Crist, I think also went through the system, but I am not 

100 percent sure on that. And as the conciliation failure, EEOC’s 

position is they engaged in good faith reasonable negotiation and 

so it would not have changed the outcome at all. But what it would 

do is provide another layer of litigation and another cost, and prevent innocent victims of discrimination from ever getting in the 

court if there is some procedural dismissal on the case. 

Thank you. 

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Chairman WALBERG. I thank the gentleman. I recognize myself 

now for my five minutes of questioning. 

Mr. Dreiband, thank you for your comments. Thank you for your 

suggestions, as well. That is what a subcommittee process is for. 

And our full Committee chair will appreciate us doing deliberative 

work here. But early this year I met with General Counsel Lopez, 

and followed up with a request for documents regarding EEOC’s 

litigation policies. I had EEOC provide me with all the class action 

and systemic complaints filed between 2009 and 2014. In that, I 

discovered that only 8 percent of these cases were pursued through 

Commission approval. 

Can you explain to the Committee how a Commission that has 

designed to implement the nondiscrimination policies of EEOC is 

barely involved in multiple plaintiff litigation? 

Mr. DREIBAND. Well, it has certainly been a change since my 

time at the Commission. I think that the current approach has essentially been to delegate, in practice and in fact, nearly all authority to the general counsel to make a decision about whether or not 

to go forward with a lawsuit. That is not how the Commission operated when I served at EEOC. As Ms. Clements noted, I sent dozens 

if not hundreds of cases to the Commission for a vote. And I found 

that by doing that, it enabled us to speak with one voice, to send 

a message to actual or putative defendants, that the Commission’s 

litigation was backed by the full Commission. And I think the results speak for themselves. 

I am flattered that Mr. Foreman saw fit to quote my remarks at 

one time when I served as general counsel. But when I served, 

with full support of the Commission, we recovered more money for 

victims of discrimination through our litigation program than ever 

in the history of the EEOC. And what we have seen in the last couple of fiscal years is that both filings are down, as well as recovery 

through the litigation program, and down significantly to the lowest levels since the Commission started reporting this data. 

So, you know, the Commission is currently free to operate how 

it wants to. The bills would require more involvement by the Commission. And I suppose my question would be, for anybody who opposes more Commission oversight in deliberation about Commission litigation recommendations exactly what they think these commissioners should do. I mean, the chair of the Commission has the 

operational authority of the EEOC by statute, but the other four 

commissioners have no operational authority at all. They don’t supervise investigations, they don’t direct litigation. All they do is 

vote on policy matters presented to them by the chair on litigation 

matters presented by the general counsel or, on occasion, subpoena 

enforcement actions. And that is it. 

Chairman WALBERG. So, would you think that this potential— 

this policy, as it is being carried out right now—speaking as a 

former general counsel, creates the possibility of abuse of power by 

the general counsel in this whole process? 

Mr. DREIBAND. Well, I think that the current general counsel is 

a friend and former colleague of mine. And I think he is well-intentioned and doing the best job he can do. I don’t—but I don’t think, 

though, that having oversight by the commissioners does anything 

other than strengthen the litigation program by the Commission. 

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It sends a message to the public, to potential defendants, that the 

Commission stands behind the decision to commit resources and to 

file the lawsuit. And simply creates a review of potential litigation, 

including some of these embarrassing losses that the Commission 

has suffered lately that may or may not have occurred, of course, 

as Mr. Foreman pointed out. 

But in the same way that the grand jury reviews an indictment 

presented by the prosecutor, the Commission has served that function very well, certainly during my tenure and at various other 

times in the history of the agency. 

Chairman WALBERG. Thank you. Let me move over. 

Mr. Lloyd, recently EEOC investigated PriceWaterhouseCoopers 

for including a mandatory retirement age in its partnership agreements, sounding familiar to your situation. The EEOC general 

counsel submitted that case to the Commission, but the Commission by a three-to-two vote did not approve litigation. Why is EEOC 

investigating Deloitte for the same type of partnership agreement 

that PriceWaterhouseCoopers has, when the Commission already 

decided the issue did not merit litigation? 

Mr. LLOYD. Mr. Chairman, I have to say I have no idea. I am 

sorry that I can’t answer that question. 

Chairman WALBERG. I figured that would be your first response. 

But are legal issues any different in the two cases? 

Mr. LLOYD. No, the legal issues are no different. If anything, our 

partnership agreement provides for more participation by partners 

than PriceWaterhouse’s does. But essentially, we are in the same 

business, we have the same business model, we have the same 

partnership structure generally. Our age is 62 for mandatory retirement, their age is 60. So in that sense, there is a slight difference. But we have not been given, thus far, any notification of 

the basis of the staff’s determination that we violate the Age Discrimination Act other than they believe any mandatory retirement 

policy based on age is inappropriate. 

Chairman WALBERG. So then do you believe the Commission’s rejection of the PriceWaterhouseCoopers case set a precedent the 

agency should follow unless it provides a compelling explanation of 

why it is abruptly reversing course? 

Mr. LLOYD. I do believe that, yes, sir. 

Chairman WALBERG. And that is the challenge that you have, 

then, in dealing with something that is now seemingly a precedentsetter. But going over what they have already said. 

Mr. LLOYD. It is. And, you know, one thing that we very much 

would like is an opportunity to discuss with the commissioners 

themselves the reasons why they did not elect to proceed against 

PriceWaterhouse and the reasons why they should not elect to proceed against Deloitte. 

Chairman WALBERG. Okay, thank you. My time is up. 

I now represent—I now ask the representative—where has he 

gone? Oh, there he is, right here. Representative Takano, who has 

stepped into the Ranking Member’s position here, for your five 

minutes of questioning. 

Mr. TAKANO. Thank you, Mr. Chairman. 

Mr. Foreman, could you comment on this colloquy on the role of 

the Commission and Deloitte’s interest in having it’s interests reCEWDOCROOM with DISTILLER

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viewed by the entire Commission? And maybe just comment on 

what you think the role of the Commission ought to be. 

Mr. FOREMAN. Yes. And I will give my disclaimer that I am not 

an expert on the facts of the specific case. But what I think this 

represents, and what we have heard today, is that everybody supports the discrimination laws except when they are aimed at their 

client. And then they come before you and say it is not fair that 

we are being targeted. And why do I say that? And Chairman 

Walberg, you used the term ‘‘precedent-setting.’’ Here is the reason 

I say that. That case is based on a precedent that was set by EEOC 

years ago, where they sued a law firm—Sidley & Austin—arguing 

that their partners were employees. 

That was litigated—a litigation that was approved and brought 

by my colleague, General Counsel—then-General Counsel 

Dreiband, and approved by the Commission. So they had a policy 

of doing exactly what they are doing with PriceWaterhouse. So 

there is not some change of the rules. They are taking existing 

precedent and challenging it. And at some point, the courts and the 

Supreme Court will say are these individuals employees for purposes of coverage, or are these employees partners? 

Mr. TAKANO. Well, I want to shift topics a little bit. The majority 

seems to be using the EEOC’s recent guidance on background 

checks as justification for acting on H.R. 5423. It is my understanding that the EEOC guidance allowed for flexibility based on 

the nature of the employment. I know that we had some of this discussion with Mr. Courtney, but can you elaborate on that? The 

scope of H.R. 5423 seems to go well beyond the issue of background 

checks. What kinds of repercussions could a bill of this breadth 

have on the EEOC? 

Mr. FOREMAN. Again, and it was talked about earlier, if you 

apply that bill as written it applies to intentional discrimination, 

disparate impact discrimination. A state or local government could 

pass a law that says women could not do X. It would be exempted 

by—under that bill. Now, there is a recognition that maybe it 

should be limited to criminal history backgrounds, but even that 

presents a problem because you are elevating local and state law 

over federal law. Title VII was written to do exactly the opposite. 

Mr. TAKANO. So as you covered in some of your testimony, I am 

still curious about 5423, some of the problems it would cause. In 

your opinion, if we went back to the quote, unquote—‘‘states rights 

schema’’ to root out discrimination in the job, what are some of the 

challenges that workers would face? And you named a lot of them 

just now. 

I am just curious. Mr. Lloyd, given Deloitte Touche’s commitment 

to the mission of the Commission, is H.R. 5423 something that you 

could support, knowing what you know now? 

Mr. LLOYD. Sir, I think that we support all the bills that are proposed. I think some of them could be improved, as Mr. Dreiband 

suggested. But there are—there is guidance issued by the EEOC 

that is problematic in practice. And we think that things can be 

improved. The processes and guidance from the EEOC can be improved, sir. 

Mr. TAKANO. One last question. H.R. 4959 would mandate, 

quote—‘‘good faith efforts to endeavor’’ to resolve charges by, 

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quote—‘‘bona fide conciliation.’’ In doing so, it would at least, in 

part, deal with issues set forth by the Seventh Circuit in EEOC v. 

Mach Mining, which is pending before the Supreme Court. Should 

Congress be getting involved in this issue? I think you already answered that, Mr. Foreman. 

Mr. FOREMAN. My view is absolutely not. That we have a Supreme Court, we have exactly that issue there. The business community is making their arguments. The United States government 

will be making their arguments. And probably by June we will 

have a decision on what that conciliation provision means in Title 

VII. Why change it now? 

Mr. TAKANO. And what exactly do good faith and bona fide mean, 

as used in this legislation? 

Mr. FOREMAN. Well, that is part of the underlying litigation. Why 

the Seventh Circuit said that you cannot utilize that as an affirmative defense. Because, one, EEOC has absolute discretion as to 

whether it fulfills—the settlement fulfills the duty of Title VII. So 

is one more offer required, is one more dollar required? And if 

EEOC says no, we are gonna fail conciliation, is that bad faith conciliation? And the court says you cannot adopt a workable standard, and that is the reason we can’t make an affirmative defense 

as this bill would attempt to do and as the employers are arguing 

in Mach Mining. 

Mr. TAKANO. All right, thank you, sir. 

My time has run out. 

Chairman WALBERG. I thank the gentleman. 

I now recognize my colleague from Indiana, Mr. Rokita. 

Mr. ROKITA. I thank the chair, and I thank the witnesses for 

their testimony. I always learn a lot at these hearings, and I think 

that is what they are about. And perhaps unlike some others that 

were here earlier, I try not to prejudge them. But having said that, 

I do want to start off by offering some time to Mr. Lloyd. In Indiana, we have a saying that it is a pretty thin pancake that don’t 

have two sides. And I think the actual quote is ‘‘don’t’’ instead of 

‘‘doesn’t.’’ But if you had anything else to add to the recent comments of Mr. Foreman, you are welcome to say them now, for a 

couple seconds. 

Mr. LLOYD. Thank you. I actually know the facts of the Sidley 

matter better than Mr. Foreman because I was partner at Sidley 

& Austin and on the executive committee at the time the EEOC 

brought that litigation. And I think Mr. Dreiband made an error 

in suing Sidley. But in any event, I can tell you that on the one 

hand we have the Sidley matter—where the Commission approved, 

going forward, and I understand why. And we have the PWC matter, where based on very different facts the Commission made the 

decision not to go forward. And our facts are very similar to the 

PWC situation, and very dissimilar from the Sidley situation. 

And I would like the opportunity, as I would have, for example, 

at the SEC if the staff made a recommendation to proceed, to submit, in one form or another—and maybe even visit with—to the 

commissioners the facts so that they can make an informed decision about whether it makes sense as a policy matter, as a matter 

of whether this is a novel issue of law, and as a resource allocation 

matter. I mean, who are we going to protect here by initiating this 

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litigation and tying up our staff time on this? And I can tell you, 

we take votes. Sidley partners did not vote, for example. That is 

a very important difference. 

And my guess is that if at Sidley we would have had votes taken 

by the partners on a routine basis for such things as electing leadership that the EEOC, at the time, would have made a different 

decision and would not have authorized proceeding against Sidley. 

Mr. ROKITA. Thank you, Mr. Lloyd. 

Mr. LLOYD. Thank you. 

Mr. ROKITA. And this is to you and Mr. Dreiband. In my prior 

public service, I was Indiana secretary of state. In that great job, 

I had the opportunity to oversee several boards, appoint several 

boards, create into statute boards. Some boards, you know, were 

politically divided equally: two Republicans, two Democrats. That 

usually ended in a disaster. But some were all my appointments, 

as a person being directly elected by the people. And then some 

had different varied degrees of political appointments. But they 

weren’t necessarily partisan. It was just a way to decide things and 

to reflect the will of the people through their elected representatives. 

It seems to me, in hearing this discussion, that if you are having 

unelected attorneys, bureaucrats— whatever word you want to 

use— make these decisions, you are kind of tipping the scale of 

what the statute might have intended and the legislature might 

have intended in terms of the political appointments and how these 

decisions were supposed to be, really, made. Can you comment on 

that briefly, Mr. Lloyd? And then Mr. Dreiband, same question? 

Mr. LLOYD. Yes, I would be happy to respond. I agree wholeheartedly. And it has nothing to do with the competence of the attorney or the good faith of the attorney. Speaking as a general 

counsel myself, you know, I many times have oversight that sometimes I wish I didn’t have. But I have found that, over time, that 

oversight and getting differing opinions from people who are experienced and have different insight—come from different backgrounds, have different points of view—is extremely valuable. I 

learn things, I then make different decisions on occasion from what 

I would normally do. 

Mr. ROKITA. And then Mr. Dreiband, in the time I have remaining. Thank you, Mr. Lloyd. 

Mr. DREIBAND. Sure. Any law enforcement agency, no matter 

who they are, can become prone to overzealousness and excess. 

That is true of prosecutors, that is true of police departments. And, 

at times, it is true even of the EEOC. To deal with this issue, Congress created the Commission; a bipartisan Commission of five people, appointed by the President, confirmed by the United States 

Senate, to serve staggered five year terms. No more than three of 

those five members can be of the same political party. As a result, 

the Commission, in the statute itself, is responsible for authorizing 

attorneys appointed by Title VII of the Civil Rights Act to appear 

in court at the direction of the Commission. 

Congress did not intend, and there is nothing in the—any statute 

to suggest that Congress did intend, for the Commission to delegate all of its authority about litigation entirely to other people in 

the agency. And that appears, in practice, to what has happened 

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at the EEOC. In the same way as I said earlier that grand juries 

provide a check on prosecutors, even the most well intentioned 

prosecutors, the Commission can serve, and has historically served, 

that same function at the EEOC. 

Mr. ROKITA. Thank you, Mr. Dreiband. 

Seeing my time has expired, Mr. Chairman, I am yielding back. 

But I also would like to note for the record that the Ranking Member indicated that the hearing was only noticed for eight days. That 

is actually a day long—extra day than what the rules actually require. And I would hope that the Ranking Member, with 25 years 

of law practice, would have read our rules. 

Chairman WALBERG. I appreciate the former secretary of state’s 

attention to detail. And yes, it was eight days, while we were only 

required seven days. 

I now have pleasure of recognizing the gentleman from Virginia, 

Representative Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Foreman, we have talked about the background checks. The 

case I remember from—was the Griggs case, where they required 

high school diplomas, which had nothing to do with your ability to 

do the job. And it had a disparate impact in the community without having any relationship to the jobs. Now, this background 

check thing comes into practice with what is called that box you 

have to check. And there is a campaign to ban the box because 

when you check the box your application summarily goes into the 

trash. 

Now, we have heard of situations where you—it would be illegal 

to hire people who have been convicted of violent crimes or sexual—or people who have—sexual abuse. Would it be improper to 

have a box on the application that states violent crime or sexual 

abuse as opposed to a box that generally any felony or any arrest 

or anything else that would be generally applicable? It seems to me 

that the general box, any felony, would be over-broad and would include a lot of people that would not be prohibited from being employed. And you would have the—you are back to the disparate impact without any job relation. Is that true, Mr. Foreman? 

Mr. FOREMAN. I mean, that would be one way to attempt to address it. I mean, you are absolutely right on banning the box. I 

mean, what happens is, many employers will adopt a policy that 

says have you ever been arrested or convicted of a crime. If the answer is yes, you are out of the screening process and there is no 

individualized assessment. And part of what EEOC’s guidance is 

trying to do is say let’s look at the person. Is this person rehabilitated? Is it proper—can this person do the job? Is it reasonably related to the job? That is really all the guidance is trying to do. 

In going back, as you said, to Griggs v. Duke Power, that was a 

GED that screened out minority employees. And the court there 

found that it was discriminatory, developed a disparate impact 

analysis, and we discovered there are other things that do that. 

And that is what the criminal guidance is supposed to do. The 

problem with the proposed bill, then, it then takes and exempts 

state and local governments from basically the requirements of 

Title VII. When it was passed, that was vital to Title VII. So let’s 

not understate what the proposed bills are doing. You are rewriting 

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one of the most historic civil rights statutes of our history in a way 

that doesn’t add any benefit. 

Mr. SCOTT. Mr. Foreman, can you state the present law on discrimination cases as they relate to sex discrimination, what you 

can recover, as opposed to other forms of discrimination—race, religion, national origin? Are there differences in what you can recover? 

Mr. FOREMAN. Well, they are absolutely different in terms of 

what EEOC can recover as opposed to an individual who may bring 

a claim under—and I don’t want to get bogged down in terminology, but 42–USC–Section 1981 there are uncapped damages. 

You—the jury will award whatever the damages are that were the 

cause of the discrimination. Whereas under Title VII, they are 

capped according to the size of the employer. 

Mr. SCOTT. Well, is it different in Title VII from other forms of 

race discrimination? They are uncapped under 1981, but not uncapped in others? 

Mr. FOREMAN. Well, 1981 only applies to race discriminationbased claims. So if you bring a race-based claim under Title VII in 

an employment context you are capped. But you are also capped in 

sex discrimination, any of the protected coverages under Title VII. 

Did that answer your question? 

Mr. SCOTT. I think—yes. Well, does the—we have the Fair Pay 

Act for sex discrimination cases. Can you say what they would do 

to improve the situation, the Equal Pay Act? 

Mr. FOREMAN. Well, the Equal Pay Act has a different regimen 

that does not have the same level of damages. I mean, the reality 

is that the discrimination law should provide whatever damages 

the person suffered, whether it is sex-based discrimination, racebased discrimination. And I think the Fair Pay Act is attempting 

to get at that to say if you are—if you prove that you are a victim 

of intentional discrimination, then you should be entitled to whatever economic damages that discrimination caused you. 

Chairman WALBERG. The gentleman’s time has expired. Thank 

you. 

And now I recognize the sponsor of H.R. 4959, my colleague from 

North Carolina, Mr. Hudson. 

Mr. HUDSON. Thank you, Mr. Chairman. 

Mr. Lloyd, I have read your testimony and I have to tell you I 

am really deeply concerned that at a time when—with limited resources EEOC has, what, some 77,000 pending claims they are 

looking at, that they have just—that they have made a decision to 

go after your firm and the mandatory retirement age, when no one 

has filed any sort of complaint or there have been damages. This 

is a decision made by a group of partners who manage this firm. 

And the irony of it is, if the firm decided to comply with the lawyers at the EEOC’s request it would require a vote of the partners 

to make the change. Frankly, it is outrageous to me. 

But my question to you is, do you believe that if the EEOC continues to pursue this line, this matter, that it would involve a 

major expenditure of resources by the EEOC and/or trigger the 

public controversy test requiring a vote of the Commission? 

Mr. LLOYD. Well, I strongly believe that it would meet those 

tests, as well as the tests that this would be a novel application of 

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the law for reasons we discussed. It would require extensive expenditure of resources by the EEOC. Not court costs and things 

like that. But when you think of valuable staff time, this would be 

major litigation. We would defend ourselves vigorously because we 

think they are wrong as a matter of law and as a matter of fact. 

And so the EEOC staff devoted to that litigation would be fairly 

extensive. And those people would not be able to pursue those 

100,000 claims, or charges, that they get of individuals who need 

real protection. 

I mean, we are talking about, at Deloitte, people who are real 

partners but, beyond that, very highly compensated. And we have 

done a study in response to this that shows that our partners who 

have retired, been required to retire in the last five years, have 

been overwhelmingly—as I said in my testimony—white males. 

And yet our population coming along through the staff and eligible 

to be admitted to the partnership is much more diverse. And over 

the last five years, while our white males have been retiring, 88 

percent of our retiring partners have been white males over that 

last five years and only 12 percent women and minorities. 

On the other hand, the newly-admitted partners during that 

same period of time have been 41 percent women and minorities 

and 59 percent white males. And so the operation of the mandatory 

retirement system has actually caused our partnership to become 

more diverse, and it clearly will in the future. 

Our population of people below the partner level is incredibly diverse, and they are wonderful performers and they are going to advance to partnership. But if we were not able to have this mandatory retirement provision that we do have, age 62, then—we have 

a limited number of partnerships—and so the opportunities for the 

women and minorities would be limited. Not foreclosed, but they 

would be limited. And, to me, that is a perverse result when you 

think of all of the objectives of the statutes that the EEOC is 

tasked to enforce, and objectives that we believe in quite strongly. 

I mean, we do our own internal disparate impact analyses, and we 

make sure that we are doing the best job we possibly can to provide equal opportunities and development opportunities for our 

women and minorities. And this would hinder that. 

Mr. HUDSON. I appreciate that. And, Mr. Chairman, I do believe 

the cost involved, as well as the public controversy test certainly 

comes in play here. And I would hope that the EEOC, if they 

choose to pursue this, will move to a vote of the Commission. Because I think that is what the statute requires. 

Changing direction here quickly, Mr. Dreiband, my bill, H.R. 

4959, has a provision clarifying the EEOC’s conciliation efforts 

must be in good faith and are subject to judicial review. Professor 

Foreman’s testimony criticizes this provision as undermining the 

separation of powers because the Supreme Court has granted review on this very issue in the EEOC v. Mach Mining. Do you believe it is appropriate for Congress to clarify what the duty of the 

conciliation entails? 

Mr. DREIBAND. Well, I don’t see anything wrong with Congress 

clarifying the matter if Congress decides to do that. Congress is an 

independent branch of the United States government, and it is not 

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in any way limited by the fact that a lawsuit is pending before any 

particular court, including the Supreme Court of the United States. 

Mr. HUDSON. Appreciate that. Trying to use my time as efficiently as I can. 

Ms. Clements, thank you for you testimony. I have read that, as 

well. You described instances of what could be characterized as 

abusive investigatory tactics at EEOC. You also described situations where EEOC would make a predetermination settlement demand, and when the employer declined the EEOC would quickly 

drop some of the charges. The EEOC Transparency and Accountability Act, which I have introduced, clarifies the EEOC must conciliate in good faith and provide specific information to the employer about the factual basis of the allegations and the effect on 

employees, and the EEOC’s conciliation efforts are subject to court 

review. How would these provisions alleviate the problems you 

have seen at EEOC investigations and mandatory conciliations? 

Chairman WALBERG. Seeing that time has expired, and yet being 

a sponsor of the piece of legislation I will ask you to respond as 

quickly as possible, and the rest could be put in writing. 

Ms. CLEMENTS. I think it is important for the Committee and the 

EEOC to recognize that employers, when faced with appropriate information from the Commission, are more than willing to come to 

the table and try to fix problems that the Commission sees. What 

is happening now is that employers don’t have enough information 

to really evaluate the strength of the EEOC’s findings. And it 

makes it difficult for employers to pursue negotiations in good 

faith. And so one of the things that I think your bill would help 

is provide that information so that both parties can come to the 

table in good faith with the same information about the employment practices that are at issue. 

Mr. HUDSON. Great. I thank the Chairman for his magnanimity 

and discretion there. Thank you. 

Chairman WALBERG. How is that defined in North Carolina? I 

am not sure about Michigan either, so thank you. I thank the gentleman. And thanks to the panel. We appreciate your very considered testimony, answers to question, ideas. And that, again, is the 

purpose of this subcommittee. 

And now I would ask my Ranking Member to conclude with his 

concluding remarks. 

Mr. COURTNEY. Thank you, Mr. Chairman. Again, thank you to 

all the witnesses for the time you devoted here this morning. 

Again, I understand that while I was over at the Agriculture Committee someone raised a question about whether or not I was challenging whether the Committee had followed the rules. That was 

not my point earlier. There is no question seven days is the rule. 

The issue, really, is that this is, I think, our third hearing or possibly our fourth hearing on EEOC over the last two years or so. 

Once the chair was the witness, but since then the scheduling of 

the hearing process has basically effectively excluded the Commission from participating in a—in what I think would be a helpful 

dialogue in terms of trying to express frustrations that members 

may have, constituents may have. 

Because in my opinion, you know, a legislative response, which 

is really, you know, what is on the agenda here today—is a fool’s 

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errand. I mean, the chances of any of these bills getting enacted 

in the 113th Congress are about as remote as the Red Sox getting 

into the playoffs. And if any of you follow the standings, they have 

been mathematically eliminated. So that is impossible. And so, you 

know, we have this exercise for whatever purpose. And, again, it 

is gonna accomplish nothing in terms of changing the law. And 

what I think would be a better use of time would be to actually engage with the Commission and the department. 

We have tangible results in the last nine months since Secretary 

Perez has taken over, where he has listened to bipartisan concerns 

that members have raised with the department in terms of department operations. And he has responded to those with real tangible 

results. 

And, again, I think, you know, having legislation which was just 

filed, you know, in certainly the last case, you know, within just 

a week ago, and expect that to somehow advance the ball here in 

terms of, you know, really trying to improve the agency’s performance, again I just think is—with the productivity of this Congress 

in terms of the amount of legislation that has actually been enacted, you know, just not, in my opinion, the most effective use of 

time. 

And so, again, the 50th anniversary of the Civil Rights Act is 

something that we observed as a nation this year. I think, again, 

Mr. Foreman, helped try and sort of rebalance the record here 

today into showing that there still are people who suffer from racial and civil rights violations in this country. The EEOC has a 

very necessary role in our economy, in our country. And what, I 

think, hopefully this committee will do is come up with strategies 

that, in my opinion, does not trample on the mission of Title VII 

and the Civil Rights Act but, in fact, in a measured, balanced way 

move our country forward. Which is really the best way to celebrate the 50th anniversary of the Civil Rights Act. 

And with that, I yield back. 

Chairman WALBERG. I thank the gentleman, and I take his 

points. We are also celebrating Constitution Day today. That is an 

important document as well that I think gives an awful lot of direction for what we are to do in Congress. You mentioned Boston, I 

will mention the Tigers right now. And we are hopeful that they 

have a better opportunity of being in the World Series. But that 

is not certain. It could change this weekend. 

There are 384—at least 384 bills that sit over in the Senate right 

now that have been passed after significant effort, after this body 

has spoken. Much of that wealth of legislation is bipartisan, to 

some degree. It sits over in the Senate without any action. We 

don’t reasonably expect them to take action on it, sadly. But we 

certainly expect us—and as we have opportunity we expect us—to 

take action here, and address issues that have perked to the top 

with great concern. And that has been the case. We have had the 

EEOC over here. We have had—I have had the EEOC in my office. 

We have sent letters. We continue to have concerns that are expressed. 

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essary time was not spent. But I am going to say that all necessary 

time would be spent on making sure that discrimination did not 

happen, that people were afforded—regardless of who they are, 

what they believe, the color of their skin, their gender, their disabilities, were not discriminated against. And that complaints were 

brought before a Commission. And we established a Commission to 

be a Commission with some latitude to decide how they function, 

to some degree. But a Commission to clearly make decisions that 

had impact upon equal rights and opportunity and the way businesses functioned. 

And so I guess today is, I hope, not an exercise in futility, but 

a laying down and establishing a claim by Congress on its concern 

that issues of concern be addressed. And if there are better ways 

of dealing—and enhancing this legislation that has been put forward, we are certainly willing to look at it. But when you have 

70,000 complainants expecting some response by a Commission 

that is a backlog right now, and you have other complaint—other 

cases that are being initiated without complaint—I think that is a 

problem we ought to ask questions, at the very least, about. And 

that the EEOC ought to know that there are members of Congress 

on this subcommittee, on the full Committee and in Congress at 

large that want those issues of concern addressed and not just carrying on the same old, same old. 

When you have actions without employee complaint, when you 

have uncertainty, inconsistency being brought into the mindset of 

businesses, employers, and employees attempting to understand 

the system, we ought to address that concern. At least ask questions. And hopefully the EEOC is listening. They certainly have an 

opportunity to respond—and I am sure they are listening—respond 

in letter to us expressing concerns, expressing ideas; some that 

have been addressed today here already by our witness panel of 

suggestions on how legislation could be addressed to go forward. 

The hearing at least, as I said, lays a claim to carrying on our 

concern. Whether it is successfully concluded with this session of 

Congress, or whether it establishes a base to pursue more aggressively to conclusion in the next Congress, I think that is an important opportunity and responsibility of this subcommittee. Having 

said all of that, we will look forward to the response, as well as carrying on further. 

I again want to thank the panel for being here. I thank my committee members for their attention today. 

And there being no further business, the subcommittee stands 

adjoined. 

[Additional submission by Mr. Courtney follows:] 

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[Additional submission by Ms. Fudge follows:] 

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[Additional submission by Chairman Walberg follows:] 

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[Whereupon, at 11:32 a.m., the subcommittee was adjourned.] 

Æ 

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