```

[Senate Hearing 111-1129]
[From the U.S. Government Publishing Office]

                                                       S. Hrg. 111-1129
 
   NOMINATIONS FOR COMMISSIONER AND FOR GENERAL COUNSEL OF THE EQUAL 
                   EMPLOYMENT OPPORTUNITY COMMISSION 

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

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                                   ON

 NOMINATION OF JACQUELINE R. BERRIEN TO BE CHAIR OF THE EEOC; CHAI R. 
FELDBLUM AND VICTORIA A. LIPNIC TO BE COMMISSIONERS OF THE EEOC; AND P. 
             DAVID LOPEZ TO BE GENERAL COUNSEL OF THE EEOC

                               __________

                           NOVEMBER 19, 2009

                               __________

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

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

                               ----------
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Washington, DC 20402-0001 

          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

CHRISTOPHER J. DODD, Connecticut           MICHAEL B. ENZI, Wyoming
BARBARA A. MIKULSKI, Maryland              JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico                  LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington                   RICHARD BURR, North Carolina
JACK REED, Rhode Island                    JOHNNY ISAKSON, Georgia
BERNARD SANDERS (I), Vermont               JOHN McCAIN, Arizona
SHERROD BROWN, Ohio                        ORRIN G. HATCH, Utah
ROBERT P. CASEY, JR., Pennsylvania         LISA MURKOWSKI, Alaska
KAY R. HAGAN, North Carolina               TOM COBURN, M.D., Oklahoma
JEFF MERKLEY, Oregon                       PAT ROBERTS, Kansas
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
                                       
                                       

                      Daniel Smith, Staff Director

                  Pamela Smith, Deputy Staff Director

     Frank Macchiarola, Republican Staff Director and Chief Counsel

                                  (ii)

                            C O N T E N T S

                               __________

                               STATEMENTS

                      THURSDAY, NOVEMBER 19, 2009

                                                                   Page
Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming, 
  opening statement..............................................     2
Hoyer, Hon. Steny, a U.S. Representative from the State of 
  Maryland.......................................................     5
Clarke, Hon. Yvette, a U.S. Representative from the State of New 
  York...........................................................     7
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...     9
Berrien, Jacqueline A., Associate Director-Counsel, NAACP Legal 
  Defense and Educational Fund, Inc., New York, NY...............    10
    Prepared statement...........................................    12
Feldblum, Chai R., Professor of Law, Georgetown University Law 
  Center, Washington, DC.........................................    14
    Prepared statement...........................................    15
Lipnic, Victoria A., Counsel, Seyfarth Shaw, LLP, Washington, DC.    17
Lopez, P. David, Supervisory Trial Attorney, Equal Employment 
  Opportunity Commission, Phoenix District Office, Phoenix, AZ...    18
    Prepared statement...........................................    21
Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee    26
Hagan, Hon. Kay R., a U.S. Senator from the State of North 
  Carolina.......................................................    28

                          ADDITIONAL MATERIAL

Response by Jacqueline Berrien to questions of:
    The HELP Committee...........................................    32
    Senator Enzi.................................................    34
    Senator Alexander............................................    38
    Senator Coburn...............................................    39
Response to questions of Senator Coburn by Jacqueline Berrien and 
  Chai Feldblum..................................................    40
Response by Chai Feldblum to questions of:
    The HELP Committee...........................................    41
    Senator Enzi.................................................    45
    Senator Coburn...............................................    48
    Senator Isakson..............................................    54
Response by Victoria A. Lipnic to questions of:
    The HELP Committee...........................................    56
    Senator Coburn...............................................    57
Response by P. David Lopez to questions of:
    The HELP Committee...........................................    57
    Senator Enzi.................................................    59
    Senator Alexander............................................    60
    Senator Coburn...............................................    62

                                 (iii)

  

   NOMINATIONS FOR COMMISSIONER AND FOR GENERAL COUNSEL OF THE EQUAL 
                   EMPLOYMENT OPPORTUNITY COMMISSION

                              ----------                              

                      THURSDAY, NOVEMBER 19, 2009

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:08 a.m. in 
Room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
Chairman of the committee, presiding.
    Present: Senators Harkin, Murray, Hagan, Enzi, Alexander, 
and Isakson.

                  Opening Statement of Senator Harkin

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order. Our meeting this 
morning is a nomination hearing for Jackie Berrien to be chair 
of the Equal Employment Opportunity Commission, Chai Feldblum 
and Victoria Lipnic to be Commissioners of the EEOC, and David 
Lopez to be EEOC's general counsel.
    Over the last 45 years, we have made great strides toward 
eliminating discrimination in the workplace. The Civil Rights 
Act of 1964 prohibited discrimination on the basis of race, 
sex, national origin, and religion. The Age Discrimination in 
Employment Act in 1967 prohibited discrimination on the basis 
of age, and the Americans with Disabilities Act in 1990 
prohibited discrimination on the basis of disability.
    These important guarantees, however, are not self-
executing, as I like to say. They are only as strong as the 
agency charged with enforcing them, the EEOC. The EEOC's 
mission is simple--to promote equality of opportunity in the 
workplace and enforce Federal laws prohibiting employment 
discrimination.
    While much progress has been made in recent decades, 
discrimination in the workplace persists. Today, too many 
employment decisions are based on insidious stereotypes and 
prejudices rather than an employee's talent, ability, and 
qualifications. Too many hard-working Americans face the harsh 
reality of getting a pink slip or not being hired at all, being 
subjected to harassment, or being paid less for comparable work 
and not because of a lack of skills or poor performance, but 
simply because of his or her race, sex, national origin, 
religion, age, disability, or some other irrelevant factor.
    And sadly, in times of economic turmoil, discrimination 
often increases, and this deep recession has been no different. 
From fiscal year 2007 to the end of fiscal year 2008, overall 
claims filed with the EEOC increased by 28 percent to over 
95,000 claims, and this includes increases in every type of 
case.
    Moreover, as the economy continues to struggle, workers who 
are victims of discrimination face even greater challenges. As 
just one example, during this recession, older workers, who 
face stereotypes that they cannot learn new skills or that they 
are not as productive, have remained unemployed for more than 
twice as long as all unemployed workers.
    Unfortunately, precisely when we need a vigorous enforcer 
of Federal law, until recently, the EEOC has been woefully 
underfunded. For 5 years, its budget was virtually frozen. Due 
to underfunding since 2001, the EEOC has lost 25 percent of its 
workforce, mostly frontline positions that directly serve the 
public.
    But thankfully, we have begun to turn this around. In 
fiscal year 2009, under the leadership of Senator Mikulski, as 
chair of our Appropriations Committee on Commerce, Justice, and 
Science, Congress increased EEOC funding for the first time in 
5 years by $15 million. And the fiscal year 2010 CJS 
appropriations bill includes $367 million for the EEOC, an 
increase of $23 million.
    Well, one result of the chronic underfunding has been an 
ever-increasing backlog of cases that need to be addressed. The 
EEOC now has a huge backlog of over 85,000 claims. It currently 
takes an average of 294 days to process a discrimination claim. 
Well, this situation is unacceptable. Too often justice delayed 
is, indeed, justice denied.
    Now, more than ever, we need strong leadership at the EEOC. 
The nominees before us today are all extremely well qualified. 
All have a lifetime of commitment and service. Each possesses 
extraordinary skills and experience that will advance the 
EEOC's mission and ensure rigorous enforcement of some of our 
most important laws.
    I look forward to working with our Ranking Member, Senator 
Enzi, and others on the committee to move these nominees 
quickly so they can get to work ensuring fairness and equal 
opportunity for every American worker.
    And with that, I would recognize my Ranking Member, Senator 
Enzi.

                       Statement of Senator Enzi

    Senator Enzi. Thank you, Mr. Chairman.
    I would like to thank you for calling this hearing today on 
such a special day.
    [Laughter.]
    Happy birthday.
    The Chairman. Hey, thank you very much.
    Senator Enzi. I think we all ought to join in singing.
    [Applause.]
    The Chairman. I used to think 70 was old and decrepit. Now 
I think it is pretty young.
    Senator Enzi. I think it is always 10 years older than 
whatever a person is. Would you like to join me in singing 
``Happy Birthday'' to him?
    The Chairman. Oh, come on.
    [Singing.]
    [Applause.]
    Senator Enzi. You have got to celebrate them all. Every one 
of them is a blessing, and we feel blessed that you are here.
    The Chairman. I have got to say I always remember what 
Satchel Paige once said. Satchel Paige--if any of you are 
baseball fans, remember Satchel Paige. Great pitcher. But when 
he was born, he didn't have a birth certificate. He was born in 
Mississippi, had no birth certificate. They didn't really know 
how old he was, and someone once said something to Satchel 
about, ``How old are you, Satchel?''
    And he said, ``Well, I don't really know.'' He said, ``I 
always felt this way. How old would you be if you didn't know 
how old you were?''
    [Laughter.]
    If I didn't know how old I was, I would be, oh, maybe 
around 40 or 35.
    [Laughter.]
    Senator Enzi. I think in your list, you had age 
discrimination in there, too, didn't you?
    I would also like to welcome the nominees--Ms. Jacqueline 
Berrien, Ms. Chai Feldblum, Ms. Victoria Lipnic, and Mr. David 
Lopez. We are glad to have you here and have this chance to 
visit with you a little bit.
    I would also like to recognize the two current EEOC 
Commissioners who are sitting in the audience, the acting chair 
Stuart Ishimaru and Connie Barker. Thank you for being here.
    It is an important part of our constitutional 
responsibility to review the qualifications and views of the 
nominees put forward by the President for Senate confirmation. 
When we have independent agencies with representatives from 
both political parties like the Equal Employment Opportunity 
Commission, it is generally most efficient to review them as a 
package, which we are doing today.
    When important matters of public policy are likely going to 
be decided by proposed nominees, a public hearing is the right 
thing to do, and I appreciate the Chairman's willingness to 
hold this hearing today. And I thank the nominees for all being 
here.
    I would also like to thank all the nominees for their 
willingness to serve the public as part of the EEOC. The 
vetting process for our executive nominations is thorough and 
not without some degree of personal and professional sacrifice, 
and we thank you for making that sacrifice.
    The nominees we are evaluating today are all experienced 
professionals, and I have no doubt that they are capable to 
perform the jobs they have been nominated for. Like every 
member of this committee, they all believe strongly in the 
importance of equal employment opportunity.
    Today, I would also like to recognize nominee Victoria 
Lipnic. Formerly, Chairman Kennedy and I worked with her on a 
number of issues. Ms. Lipnic was previously confirmed by the 
HELP Committee in 2002 and took a lead role in a number of the 
important initiatives as Assistant Secretary of Labor for the 
Employment Standards Administration from 2002 to 2009.
    It doesn't have anything to do with the qualifications, but 
I would note that her dad was the mayor of a small town. I 
really appreciate that, since I had that background.
    In administering the Office of Federal Contractor 
Compliance Programs, which enforces equal employment 
opportunity laws for Federal contractors, her team recorded a 
number of all-time records. In 2008 alone, they recovered more 
than $67 million in back pay, salary, and benefits for over 
24,000 American workers who had been subjected to unlawful 
employment discrimination, and I thank her for stepping forward 
for a new challenge at the EEOC.
    The EEOC has an important responsibility to fairly enforce 
our Nation's laws and to work with employers and employees to 
prevent discrimination. The vast majority of employers in this 
country want to treat their employees fairly and obey the law. 
As a former small businessman, however, I can tell you that 
sometimes these laws can be complicated and/or confusing.
    In fulfilling its mission, I believe it is important that 
the EEOC not assume an adversarial role against small 
businesses and businesses in general. I am interested in 
learning more about each of the nominee's thoughts and would 
like to have a dialogue on whether it is part of the EEOC's 
mission to assist businesses in understanding and complying 
with Federal laws and any plans the nominees might have to do 
so. I would also like to learn more about each of your 
priorities during your tenure at the EEOC.
    In closing, I recognize that it is unlikely I will agree 
with every policy issue with all of the nominees, but I am 
hopeful that should you be confirmed, we will find ways to 
achieve common goals to promote equal opportunity.
    I look forward to the testimony today, and I thank the 
chairman.
    The Chairman. Thank you very much, Senator Enzi.
    And again, thank you for working together on getting this 
hearing and, hopefully, moving these nominees.
    First, we are very honored to have here the esteemed and 
distinguished majority leader of the House of Representatives, 
someone that I was privileged to work with in the House in the 
last century, now that I think about it.
    [Laughter.]
    And for many years, just been a stalwart leader in anything 
dealing with human rights and civil rights, nondiscrimination, 
I can't think of any name that stands out there more profoundly 
than Steny Hoyer.
    As I said, we worked in the House on some things early on, 
on discrimination and on things like IDEA and others, but then 
we really started working together in the mid-1980s on the 
Americans with Disabilities Act, and we formed a great bond 
then on that bill, of course, with Chai Feldblum at that time, 
and got the bill through.
    Congressman Hoyer has been the leader on that issue through 
all these years. And then when we had to do the amendments in 
the last decade and getting those passed and having the second 
President Bush sign those into law to overcome some of the U.S. 
Supreme Court decisions.
    I think it is just certainly a tribute to you, Ms. 
Feldblum, and to all of us here that Representative Hoyer, our 
majority leader, would take time from his busy schedule on the 
House side to be here this morning. We welcome you very much. 
You honor us with your presence, and please proceed with your 
introduction of our mutual friend.

      Statement of Hon. Steny Hoyer, U.S. Representative, Maryland

    Mr. Hoyer. Well, thank you very much, Senator Harkin. Happy 
birthday to you.
    The Chairman. Thank you.
    Mr. Hoyer. I was pleased to join in a hearty singing. Thank 
you, Senator Enzi, for leading us, our choir director this 
morning.
    I want to thank both of you as well. You mentioned our work 
on the ADA and, of course, the ADA amendments. Senator Harkin 
and I, as he indicated, have had an opportunity to work very 
closely together. But Senator Enzi, you were very helpful on 
the amendments, and I want to thank you as well for the 
excellent work that you did in partnership with Senator Harkin 
and many of us in seeing those amendments adopted. So thank you 
very much, sir. Appreciate that.
    Senator Murray, my colleague with whom I meet regularly, as 
she raises her eyes.
    Senator Murray. Meeting with you, Steny, is great.
    Mr. Hoyer. And Senator Hagan, congratulations once again to 
you, and you are a wonderful addition to the ranks of the U.S. 
Senate.
    On our side, we have some problems from time to time with 
your body, but we look forward to working closely with you.
    [Laughter.]
    Mr. Chairman, I am particularly pleased to be here and 
think that I can speak, as you can, with a deep reservoir of 
knowledge about Chai Feldblum. I do not know the other nominees 
as well, but Chai has just indicated to me what a uniformly 
high quality of individuals with whom I sit at this table, and 
so I am honored to be with all of them.
    And Congresswoman Clarke just gave me a thumbs-up to the 
lady to my right, who she is a very big proponent of as well.
    I want to thank you for inviting me to introduce a good 
friend, an outstanding scholar, and a civil rights champion, 
Professor Chai Feldblum. Her years of work against 
discrimination are grounded in an outstanding legal mind, 
abiding respect for the law, and an unsurpassed judicial 
temperament.
    Senator Enzi, let me say to you, sir, that I can assure 
you, having worked with Chai, literally for over 100 hours, 
sitting in a room, figuring out how we could make ADA workable 
for small, medium, and large businesses that she, in fact, as I 
am sure the other nominees do, share your concern that we want 
to be assisting and helping people comply, as opposed to having 
to step in after noncompliance. She is that kind of personality 
and scholar, qualities that have made her an excellent teacher 
of the law at Georgetown Law School, my alma mater, and which 
will serve the Equal Employment Opportunity Commission well.
    I have long believed that disability rights are one of the 
greatest civil rights challenges facing our modern Nation. When 
those rights are denied, people with disabilities are denied an 
equal place in the society we share. That is why our commitment 
to disability rights is a powerful test of our Nation's 
founding promise of inclusion, and it is a test that Professor 
Feldblum has helped us pass again and again and again.
    In 1990, as Chairman Harkin has pointed out, the Americans 
with Disabilities Act made our Nation a world leader in 
inclusion. I was proud to work with Chai Feldblum, Chairman 
Harkin, Senator Kennedy, and others. But Professor Feldblum, as 
counsel to the disability community, was an integral part of 
the months of negotiations that made ADA a reality.
    My staff and I worked closely with her as we brought the 
ADA toward passage. And in that time, I found I could rely on 
her legal mind, her political judgment, her integrity, and her 
desire to make legislation and policy successful with all those 
who had to live within its strictures. We counted on her to 
keep us informed on the current law and on the legislative 
compromises that did and didn't make sense. She did not let us 
down.
    In the years since the ADA's passage, Professor Feldblum 
has earned a reputation as a leading advocate for the LGBT 
community and equal rights in the workplace. And I continued to 
call on her expertise as our country worked to implement the 
ADA, as did Senator Harkin and others.
    In fact, Professor Feldblum helped call Congress's 
attention to the courts' troubling efforts to chip away at the 
ADA's original intent. And when Congress worked to pass 
legislation that would restore the full scope and intent of the 
ADA, Professor Feldblum again played a key role, as I pointed 
out to you, Senator Harkin, and Senator Enzi and others.
    I have seen firsthand her ability to work on both sides of 
the aisle and to engage the disability community, business 
leaders, Republicans, in serious dialogue, as well as 
Democrats. She never allowed partisanship to color her 
judgment. Her efforts were key to our success.
    Other parts, of course, of Professor Feldblum's record are 
equally impressive, but I have focused on disability rights 
because, as I have said, they are a powerful test. They are a 
test of our character, but they are also a test of Professor 
Feldblum's commitment to opposing discrimination in all of its 
forms.
    She is dedicated to making the civil rights laws of our 
country work for all Americans, and she has the character and 
the capacity to implement them fairly and justly.
    I want to thank you again for allowing me the privilege and 
honor of sitting here with four extraordinary individuals, but 
one of whom I have worked closely with for over two decades and 
who I know firsthand will bring extraordinary ability, 
character, insight, integrity, and judgment to the job for 
which she has been nominated.
    And I thank you again for giving me this honor.
    The Chairman. Congressman Hoyer, thank you very much for 
gracing us with your presence. Thanks for a very excellent 
statement on behalf of an individual that I have worked with 
now for 21 years, mostly on Americans with Disabilities Act 
measures.
    Thank you again for being here. I know you have a busy 
schedule being the majority leader of the House. I thank you 
again for being here, Steny, and--
    Mr. Hoyer. Well, I guess I don't have to be, but I 
volunteered for the job and glad I got it.
    [Laughter.]
    Thank you.
    The Chairman. Godspeed. Thanks very much.
    Again, let me welcome our nominees here, from left to 
right. It is not often we get the majority leader of the House 
over here.
    [Laughter.]
    It is a big deal around here.
    We welcome our nominees, from left to right--Jackie 
Berrien. And I want to note that Senator Schumer wanted to be 
here to introduce Ms. Berrien, but unfortunately, he has to be 
in the Judiciary Committee this morning.
    I note the presence of Congresswoman Yvette Clarke, who is 
here from New York, who wrote a letter of support. But any time 
a member of the House graces us with their presence, if you 
would like to say a few words on behalf of Ms. Berrien, we 
would welcome you to come to the table.
    For purposes of introduction, Congresswoman Clarke, who was 
elected to Congress in November 2006, represents the 11th 
Congressional District in New York. Prior to that, she served 
on the New York City Council, representing the 40th District in 
Brooklyn. Representative Clarke sits on the House Education and 
Labor Committee, our sort of counterpart on the House side; the 
House Homeland Security Committee; and the House Small Business 
Committee.
    So we welcome you. If you would like to say a few words on 
behalf of Ms. Berrien, we welcome you.

 STATEMENT OF HON. YVETTE CLARKE, U.S. REPRESENTATIVE, NEW YORK

    Ms. Clarke. Certainly. Thank you very much, Chairman 
Harkin, to Senator Enzi, to Senator Murray, and to Senator 
Hagan. It is certainly my honor and my privilege to be here to 
both be a witness and to speak on behalf of Ms. Jacqueline A. 
Berrien.
    I have somewhat of a much more personal relationship with 
Jackie Berrien beyond her outstanding credentials. Jackie 
Berrien was my mentor and friend, mentored me at our undergrad 
experience at Oberlin College, and that is where I really first 
got to know the character of this woman. She was an 
extraordinary leader and embodied that during that period of 
time and was very outspoken and very great at debates.
    It was no wonder that at some point in her life she would 
be sitting at this table today. We all applauded when she came 
to us and told us that she was going to Harvard, when she was 
leaving Oberlin. We all knew that Jackie was a champion, that 
she looked out for the rights of those who didn't have a voice 
and oftentimes were overlooked in our civil society.
    She went on to become a very distinguished jurist, doing a 
lot of work in the civil rights organizations of note in our 
Nation and continues to be an advocate and a mentor to others. 
I speak to many of the young women in our constituency, and 
they see her as a role model.
    As a matter of fact, I happened to hire one of those young 
women as a young attorney in my district office that Jackie, 
again, mentored. A young woman who could have gone any 
direction in her life, but saw the light that Jackie shown onto 
our community through her work with the local NAACP and her 
work at every level of her employment.
    I have kept track of Jackie, and I have watched her as her 
career has progressed. Each step she took was one of pride for 
the community that we both come from, and certainly her 
expertise is one that has been noted throughout our community 
and certainly I am sure throughout our State and our Nation.
    I am here really today as a proud supporter, to say to you 
all that she has definitely demonstrated that she is prepared 
to serve our Nation in this capacity. I have watched her and 
watched her deliberations. She is one who is very focused, one 
who understands the law intimately, pursued it with a rigor and 
a respect that I think will serve the EEOC quite well.
    Thank you for giving me this opportunity. I certainly 
wasn't prepared, but I could not miss this opportunity to speak 
on behalf of Ms. Jacqueline A. Berrien.
    Thank you all very much.
    The Chairman. Congresswoman, you added greatly to our 
meeting here this morning. We thank you for being here and 
thank you for your gracious introduction of Ms. Berrien.
    You are welcome, obviously, to stay if you would like, but 
I know how busy members of the House are.
    Ms. Clarke. I am checking my watch.
    The Chairman. If you would like to be excused, please. But 
if you would like to stay, please. Whatever your schedule fits.
    Ms. Clarke. Thank you very much.
    The Chairman. Thanks very much, Congresswoman.
    We have Jackie Berrien, who has been introduced; Chai 
Feldblum, who has been introduced; and I just might also add 
about Ms. Feldblum, just to put an emphasis on what Steny Hoyer 
said, I have worked with Chai Feldblum. We first met in 1988 
when we were working on the Americans with Disabilities Act. 
And a lot of times, these bills get passed and they get enacted 
into law, and people forget about how tough it was. I mean, 
this was a tough ordeal.
    To bring together not only all of the disability 
community--each part of the disability community had their own 
interests--and to meld those and then to work with the business 
community and both Republicans and Democrats, and we were able 
to pull that together. And I just wanted to add an emphasis to 
the integral role that Chai Feldblum played in bringing those 
disparate groups together so that we finally got it passed.
    Then on the ADA Act amendments, which we also had to get 
through just in the last several years, and that took a lot of 
doing, but we passed it unanimously, which means Republicans 
and Democrats, conservatives, liberals. It was interesting that 
the first President Bush signed the first ADA into law. The 
second President Bush signed the ADA Amendments Act into law. 
We were there for both of them.
    Senator Enzi. And his dad there.
    The Chairman. Hmm?
    Senator Enzi. And his dad was there, too.
    The Chairman. Oh, his dad was there. Oh, yes. Yes, his dad 
was there. Absolutely.
    Victoria Lipnic, I will--again, you mentioned it. Before 
entering private practice at Seyfarth Shaw, she served as 
Assistant Secretary of Labor for Employment and Standards from 
2002 until 2009 and also worked as counsel for the House 
Education and Labor Committee and in-house counsel for the U.S. 
Postal Service.
    David Lopez, who has been nominated to serve as general 
counsel, worked for the EEOC for the past 13 years. He began in 
1994 as a special assistant to Commissioner Casellas and is 
currently supervisory trial attorney with EEOC's Phoenix 
district office. Before that, before joining the EEOC, he 
served in the Civil Rights Division of the Department of 
Justice.
    We welcome you all.
    Senator Isakson. Mr. Chairman, Mr. Chairman.
    The Chairman. Oh, I am sorry.
    Senator Isakson.

                      Statement of Senator Isakson

    Senator Isakson. I deeply apologize for interrupting, but I 
had to be at a Commerce vote and going to be here for most of 
this hearing, but I wanted to just say something about Victoria 
Lipnic for just a minute.
    You have made reference to the fact she has served on the 
Education and Labor Committee in the House, and she did so when 
I was there. She was a tremendous aid to all of us on the 
committee and particularly to now Minority Leader Boehner.
    She is a consummate person whose knowledge of labor law and 
equal opportunity is tremendous. As a businessman who dealt 
with EEOC, she has the type of brain and the type of experience 
I would love to see on that board.
    I just wanted to commend her to the entire committee.
    The Chairman. I appreciate that very much. Any time you 
want to interrupt me for that kind of a statement, just go 
right ahead and do it, Johnny.
    [Laughter.]
    All of you, welcome. Your statements will be made a part of 
the record in their entirety. We will go from left to right. We 
will start with Ms. Berrien. I would ask if you could keep your 
statements to 5 minutes or so, I would appreciate that. Then we 
will open it up for questions and discussion.
    Ms. Berrien, you are lead-off. Please proceed as you so 
desire.

STATEMENT OF JACQUELINE A. BERRIEN, ASSOCIATE DIRECTOR-COUNSEL, 
  NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NEW YORK, NY

    Ms. Berrien. Thank you, Senator.
    Mr. Chairman, Ranking Member Enzi, members of the 
committee, it is truly an honor to appear before you today, and 
I appreciate this opportunity to speak with you concerning the 
important work of the Equal Employment Opportunity Commission.
    I thank President Obama for nominating me to serve on the 
EEOC and appreciate the confidence that he has expressed in my 
ability to lead the Commission.
    I am grateful to Congresswoman Clarke for her presence 
today and her support, as well as for the support of my home 
Representative, Congressman Ed Towns, and for Senator Schumer.
    Finally, I mention Congresswoman Norton, who is the 
Represent-
ative of my hometown, Washington, DC, which is where many of my 
perspectives on public service were formed.
    I have a special thank you for my husband of 22 years, 
Peter Williams, who traveled from our home in Brooklyn to be 
with me today; my brother Clifford and sister-in-law Danielle; 
and many members of my family, friends, and colleagues are here 
today in person or in spirit, and I thank all of them.
    Finally, while I am keenly aware that my parents, Clifford 
and Anna Berrien, are not here physically, I trust that they 
are watching from the best seats in heaven's finest sky box, 
and I thank them for their unfailing love.
    My perspectives on public service, as I said, were formed 
in part by my experiences as a native Washingtonian. As a 
child, I observed the hard work and dedication to public 
service demonstrated by many families, friends, neighbors, and 
other adults in this city who are very proud to say that they 
are Federal employees.
    I am grateful that two of them, Retha and Thurlo Felton, 
who are both people who have worked in the Federal Government, 
are here with me today.
    But my parents were the first and best teachers of the 
importance of public service and service in general for me. My 
mother entered Federal Government service as a student nurse at 
Freedmen's Hospital. She spent nearly 30 years working for the 
U.S. Public Health Service, Freedmen's, and Howard University 
Hospital until she retired into the civil service retirement 
system.
    Even today, I can picture her leaving for work in a 
spotless, perfectly pressed nurse's uniform that symbolized the 
preparation, attention to detail, and care that she invested in 
her work.
    My father was a World War II veteran, and after military 
service, he worked evenings at the State Department to pay his 
tuition at Howard University. His example showed me that 
Federal Government service could play a more limited, yet 
pivotal role in a person's life and career.
    Like my parents, I worked for the Federal Government to 
help finance my college education. Starting as a clerk-typist 
at the very bottom of the Federal pay scale during my senior 
year of high school and returning to Washington to work for 
Government agencies, and for this Congress in one summer, 
almost every summer while I pursued my college degree.
    I share this background with you, Senators, because it is 
important in helping to explain why I consider it such a 
tremendous privilege to be considered for the position of chair 
of the Equal Employment Opportunity Commission, and it also 
informed how I would approach my responsibilities if confirmed.
    Respect for public service and appreciation for the work of 
Federal employees are values instilled in me from childhood. I 
recognize that the Congress has entrusted the EEOC with very 
important responsibilities and that the work performed by EEOC 
employees impacts the lives of many people across the United 
States every single day.
    If confirmed by the Senate, these are principles that will 
guide my service as chair of the EEOC. I intend to work hard to 
meet the high expectations that this Congress and the people of 
the United States have for the EEOC, and I am confident that 
with the concerted effort of the entire staff of the agency and 
the continued support of Congress, the EEOC will be able to 
improve its service to the people of the United States and make 
substantial progress toward fulfilling its mission of ending 
unlawful employment discrimination.
    There are a few tasks that I would prioritize if confirmed. 
First, it will be critical to deploy the agency's resources in 
the most strategic and efficient manner possible. As Chairman 
Harkin alluded to in his opening remarks, the rising demand for 
the EEOC services, coupled with a growing backlog of unresolved 
charges and new enforcement responsibilities, mean that I must 
prioritize assessment of this issue.
    Second, in order to make the most efficient use of scarce 
resources and prevent unnecessary duplication of efforts, I 
will confer regularly with other Government officials 
responsible for overseeing enforcement of Federal laws 
concerning employment discrimination and ensure that 
enforcement activities are complementary wherever possible.
    Third, I recognize that preventing violation of law in the 
first place is an important part of the EEOC's work. And I am 
very mindful--to all members of the committee, but particularly 
Ranking Member Enzi--that the Commission's outreach to the 
public, including representatives of the business community, 
the private bar, labor organizations, advocacy groups, and 
other interested parties, is a vitally important part of its 
work. And I will work to heighten public awareness of the 
requirements of Federal anti-discrimination laws.
    Fourth, if confirmed, I will work to improve agency 
relations with Congress, and look forward to working with EEOC 
staff and the leadership and members of this committee and 
other Members of Congress to achieve this goal. In short, I 
welcome the opportunity to work with anyone within or outside 
the EEOC who is determined to fulfill the agency's mission.
    Although there are challenges facing the EEOC, I am 
optimistic as I prepare for this opportunity. My motivation is 
the knowledge that the entire Nation will benefit as we move 
closer to fulfilling the mission that guides the EEOC--to end 
unlawful discrimination on the basis of race, color, national 
origin, sex, pregnancy, religion, and disability in the 
Nation's workplaces.
    In more than 20 years of law practice, I have appeared 
before the U.S. Supreme Court, numerous Federal appellate and 
trial courts, Federal administrative agencies, and State trial 
courts. I have represented clients in a wide variety of civil 
and constitutional rights cases and have worked with lawyers 
from a wide range of practice settings, including State and 
Federal Government, other nonprofit organizations, large 
corporate law firms, legal academia, and small and solo law 
practices. I have also served on the adjunct faculty of New 
York Law School and taught trial advocacy at Fordham and 
Harvard Law Schools.
    I am currently the associate director-counsel of the NAACP 
Legal Defense and Educational Fund and acknowledge the presence 
of our director-counsel, John Payton, here today.
    The breadth and depth of my employment experience and 
professional and public service activities have all helped 
equip me to address the issues and challenges at the core of 
the Equal Employment Opportunity Commission's work today.
    In closing, like President Obama, I was born in 1961. And 
coincidentally, Senator Harkin, I was born in the month of 
November.
    [Laughter.]
    Four years before the Equal Employment Opportunity 
Commission opened its door. When President Obama signed the 
Lilly Ledbetter Fair Pay Act, he expressed his hope that the 
act would help his daughters and others who follow them ``to 
grow up in a nation that values their contributions, where 
there are no limits to their dreams, and they have 
opportunities their mothers and grandmothers never could have 
imagined.'' I have that same desire for my two nieces, seven 
great-nieces and nephews, and my goddaughter.
    As I appear before you today, Senators, I realize that I am 
here because many people who lived before me, who lived before 
I was born were determined that I should have opportunities 
that they could only witness in dreams and articulate in their 
prayers.
    I have benefited from the sacrifices, courage, and tireless 
work of many people who came before me. My work has always been 
fueled by the passion to improve the quality of life for future 
generations. I will bring the same commitment and determination 
to my work as chair of the EEOC, if confirmed by this Senate.
    Thank you.
    [The prepared statement of Ms. Berrien follows:]
              Prepared Statement of Jacqueline A. Berrien
    Mr. Chairman, Ranking Member Enzi and members of the committee, it 
is truly an honor to appear before you today, and I appreciate this 
opportunity to speak with you concerning the important work of the 
Equal Employment Opportunity Commission. I thank President Obama for 
nominating me to serve on the Equal Employment Opportunity Commission, 
and I greatly appreciate the confidence that he has expressed in my 
ability to lead the Commission.
    I especially thank my husband, Peter Williams, who is here with me 
today, as he has been at every important moment during 22 years of 
marriage. I also thank my brother Clifford and sister-in-law Danielle, 
and many more family members, friends, and colleagues who have provided 
tremendous support. My parents, Clifford and Anna Berrien, regularly 
sacrificed their own comfort to ensure that every need--and most of the 
desires--of their children would be satisfied. While I miss them 
tremendously today, I am blessed to carry indelible memories of their 
unfailing love everywhere that I go, including this committee room.
    My perspectives on public service were formed, in part, by my 
experiences as a native Washingtonian. As a child, I observed the hard 
work and dedication to public service demonstrated by many family 
friends, neighbors, leaders of my parish and other adults who were 
proud to say that they were Federal employees. Most importantly, my 
parents were very positive role models of the best of public service. 
My mother entered Federal Government service as a student nurse at 
Freedmen's Hospital. She spent nearly 30 years as a Federal employee, 
working for the U.S. Public Health Service, Freedmen's and Howard 
University Hospital. The image of her leaving for work in a perfectly 
pressed, white nurse's uniform remains with me to this day. That 
pristine uniform symbolized the preparation, care, and attention to 
detail that she devoted to her work. My father was a World War II 
veteran, and after his military service he worked evenings at the State 
Department to help pay his college tuition. His example showed me that 
Federal Government service could play a more limited, yet pivotal role 
in a person's life and career. Like my parents, I worked for the 
Federal Government to help finance my college education. I started as a 
clerk-typist at the bottom of the Federal pay scale during my senior 
year of high school and returned to Washington to work for government 
agencies almost every summer while I pursued my undergraduate degree.
    I share this background with you, Senators, because it helps to 
explain why I consider it such a tremendous privilege to be considered 
for the position of Chair of the Equal Employment Opportunity 
Commission and how I would approach my responsibilities as EEOC Chair 
if confirmed. I have high expectations for the EEOC, and I will work 
hard to meet the high expectations that Congress has for this agency. 
With the concerted effort of the staff and leadership of the EEOC and 
continued support of Congress, I believe that the agency will be able 
to make further progress towards fulfilling the mission of ending 
unlawful employment discrimination.
    In an effort to make the most efficient use of scarce resources, if 
confirmed, I will confer regularly with other government officials 
responsible for overseeing enforcement of Federal employment 
discrimination laws, to prevent unnecessary duplication of efforts and 
ensure that enforcement activities are complementary wherever possible. 
It will be critical to work within the EEOC to deploy all of the 
agency's resources in the most strategic manner possible, with the goal 
of achieving greater impact. I also will seek ways to enhance the 
Commission's outreach to the public (including representatives of the 
private bar, business community, labor organizations, advocacy groups, 
and other interested parties), and heighten public awareness of the 
requirements of Federal anti-discrimination laws. If confirmed, I would 
also work to improve relations with Congress, and look forward to 
working with the leadership and members of this committee to achieve 
this goal.
    In short, I welcome the opportunity to work with anyone, within or 
outside the EEOC, who is determined to fulfill the agency's mission. 
Although there are challenges facing the EEOC, I am optimistic as I 
prepare for this opportunity to lead the Commission. My motivation is 
the knowledge that the entire Nation will benefit as we move closer to 
fulfilling the mission that guides the EEOC: to end unlawful 
discrimination on the basis of race, color, national origin, sex, 
pregnancy, religion, and disability in the Nation's workplaces.
    Since 2004, I have served as the Associate Director-Counsel of the 
NAACP Legal Defense and Educational Fund, the organization founded and 
directed by Thurgood Marshall to wage a campaign against State-enforced 
racial segregation. In more than 20 years of law practice, I have 
appeared before the U.S. Supreme Court and numerous Federal appellate 
and trial courts, Federal administrative agencies, and State trial 
courts. I have represented clients in cases concerning subjects as 
varied as pregnancy discrimination, employment discrimination on the 
basis of immigration status, voting rights, and access to affordable 
housing, and have worked on cases with lawyers from a wide range of 
practice settings, including State and Federal Government, other non-
profit organizations, large corporate law firms, legal academia, and 
small and solo law practices, and appeared in State and Federal courts 
across the country. I have also served on the adjunct faculty of New 
York Law School and taught trial advocacy at Fordham and Harvard Law 
schools. The breadth and depth of my employment experience, and 
professional and public service activities have all helped equip me to 
address the issues and challenges that are at the core of the Equal 
Employment Opportunity Commission's work today.
    Like President Obama, I was born in 1961, 4 years before the Equal 
Employment Opportunity Commission opened its doors for the first time. 
When President Obama signed the Lilly Ledbetter Fair Pay Act, he 
expressed his hope that the act would help his daughters and others who 
follow them ``to grow up in a nation that values their contributions, 
where there are no limits to their dreams, and they have opportunities 
their mothers and grandmothers never could have imagined.'' As I appear 
before you today, Senators, I am confident that I am here because many 
people who lived before I was born were determined that I should have 
opportunities that they could only witness in dreams and articulate in 
prayers. Everything positive that I have achieved in my life was 
possible because of the tireless work and courageous efforts of people 
who came before me. My work has always been fueled by a passion to 
improve the quality of life for future generations, and if confirmed by 
the Senate, I will bring the same commitment and determination to my 
work as Chair of the EEOC.

    The Chairman. Ms. Berrien, thank you very much for an 
excellent and very profound statement. We appreciate that very 
much.
    Now we turn to Ms. Chai Feldblum. Ms. Feldblum, again, as I 
said, your statement is part of the record in its entirety. If 
you could sum up, we would appreciate it.
    Thank you.

  STATEMENT OF CHAI R. FELDBLUM, PROFESSOR OF LAW, GEORGETOWN 
             UNIVERSITY LAW CENTER, WASHINGTON, DC

    Ms. Feldblum. Thank you, Chairman Harkin, Ranking Member 
Enzi, Senator Murray, Senator Isakson. It is an honor to appear 
before you today as you consider my nomination to be a 
commissioner of the Equal Employment Opportunity Commission.
    I am happy to be joined here today by my partner, Nan 
Hunter, and by my nephew Ephraim Feldblum, who came down from 
Philadelphia to experience Congress in this way.
    My parents are, unfortunately, no longer alive. But it is 
from them--and from their journeys in life--that I learned the 
passion and the commitment that, if confirmed, I will bring to 
the EEOC.
    My mother, Esther Yolles Feldblum z'l, was brought up in a 
strictly Hasidic Jewish family in Philadelphia. Unlike most of 
her friends, she went to college and ultimately received her 
Ph.D. in Jewish history. She died at the early age of 41, but 
she had already embarked on a career focused on Jewish-Catholic 
relations. From my mother, I learned the importance of 
connecting to people and of treating people who are different 
from ourselves with true respect and dignity.
    My father, Meyer Simcha Feldblum z'l, was born in a small 
town in Lithuania--a town whose entire Jewish community, save 
my father and one small girl, was killed during the war. My 
father survived by hiding in the forests in Poland and was 
lucky enough to come to the United States after the war. He was 
ordained as a rabbi and received his Ph.D. in Talmudic studies.
    From my father, who died just a few years ago, I inherited 
my love for legal text--he studied Talmud, I study the U.S. 
Code--as well as a driving commitment to justice.
    My entire professional life has been focused on civil 
rights and social welfare rights. The clients I have 
represented at Georgetown's Federal Legislation Clinic over the 
past 18 years--from Catholic Charities USA, to the David 
Bazelon Center for Mental Health Law and Epilepsy Foundation, 
to Workplace Flexibility 2010--have all been committed to 
making this world a better place for poor people, for people 
with disabilities, for workers and their families.
    And in my other legal work and in my scholarship, I have 
sought to advance the civil rights of all Americans, no matter 
their race, creed, gender, sexual orientation, or gender 
identity.
    If confirmed, my approach as Commissioner of the EEOC will 
be marked by the commitments I inherited from my mother. I have 
a strong commitment to hearing different points of view and to 
truly understanding where other people are coming from, and I 
have an abiding faith in the goodness of trying to seek common 
ground and honorable compromise.
    That was the role I played from 1987 to 1990, while serving 
as a lawyer to the disability community as Congress enacted the 
Americans with Disabilities Act. During that time, I was 
privileged to work with both giants of the disability community 
and giants of the legislative process, including now Majority 
Leader Steny Hoyer, with you, Senator Harkin, and with Senators 
Ted Kennedy, Orrin Hatch, and Bob Dole.
    During enactment of the ADA, both the business and 
disability community were able to have a serious and open 
dialogue about what would make the law work well, and I feel 
proud that I was a part of making that dialogue happen. Indeed, 
the trust and bipartisan effort of the original ADA enabled 
many of those same players to come back together again last 
year and enact the ADA Amendments Act, again, with open and 
thoughtful dialogue.
    My effort to seek common ground and compromise does not 
mean that I lose sight of my core values. Those are strongly 
held values about equal opportunity and justice. It is for that 
reason that I am so grateful I had the opportunity to serve 
Catholic Charities USA as its pro bono lawyer for over a 
decade, helping them carry out their values of Catholic social 
teaching.
    I also have a deep respect for and understanding of 
religious practice and a deep-seated tolerance for religious 
difference. I do not think it is possible to grow up as a 
daughter of a Holocaust survivor and not be committed to 
principles of pluralism and tolerance.
    I have found throughout my professional career that 
adhering to one's values is not inconsistent with finding 
common ground. It requires a belief in the importance of 
bringing all players to the table, of listening and hearing 
various sides of an issue, and finding those commonalities that 
may exist.
    Indeed, closing, in my most recent project, Workplace 
Flexibility 2010, I have again tried to bring employers and 
employees together to see if we can find common ground on 
workplace issues. Through that project, I had the good fortune 
to work with Vicki Lipnic, my colleague here on this panel, 
while she was at the Department of Labor under the previous 
Administration. I hope I am given the opportunity to work with 
her again as a fellow Commissioner on the EEOC.
    Thank you for the opportunity to offer these opening 
remarks, and I welcome your questions.
    [The prepared statement of Ms. Feldblum follows:]
                Preparfed Statement of Chai R. Feldblum
    Thank you, Chairman Harkin, Senator Enzi, and members of the 
committee. It is an honor to appear before you today as you consider my 
nomination to be a Commissioner of the Equal Employment Opportunity 
Commission.
    I am happy to be joined here today by my partner, Nan Hunter, and 
by my nephew Ephraim Feldblum.
    My parents are, unfortunately, no longer alive. But it is from 
them--and from their journeys in life--that I learned the passion and 
the commitment that, if confirmed, I will bring to the EEOC.
    My mother, Esther Yolles Feldblum z'l, was brought up in a strictly 
Hasidic Jewish family in Philadelphia. Unlike most of her friends, she 
went to college and ultimately received her Ph.D. in Jewish history. 
She died at the early age of 41, but she had already embarked on a 
career focused on Jewish-Catholic relations. From my mother, I learned 
the importance of connecting to people and of treating people who are 
different from ourselves with true respect and dignity.
    My father, Meyer Simcha Feldblum z'l, was born in a small town in 
Lithuania--a town whose entire Jewish community, save my father and one 
other young girl, was killed during the war. My father survived by 
hiding in the forests in Poland, and was lucky enough to come to the 
United States after the war. He was ordained as a Rabbi and received 
his Ph.D. in Talmudic studies. From my father, who died just a few 
years ago, I inherited my love for legal text (he studied Talmud; I 
study the U.S. code), as well as a driving commitment to justice.
    My entire professional life has been focused on civil rights and 
social welfare rights. The clients I have represented at Georgetown's 
Federal Legislation Clinic over the past 18 years--from Catholic 
Charities USA, to the David Bazelon Center for Mental Health Law and 
Epilepsy Foundation, to Workplace Flexibility 2010--have all been 
committed to making this world a better place--for poor people, for 
people with disabilities, and for workers and their families. And in my 
other legal work and in my scholarship, I have sought to advance the 
civil rights of all Americans, no matter their race, creed, gender, 
sexual orientation or gender identity.
    If confirmed, my approach as Commissioner of the EEOC will be 
marked by the commitments I inherited from my mother. I have a strong 
commitment to hearing different points of view and to truly 
understanding where other people are coming from. And I have an abiding 
faith in the goodness of trying to seek common ground and honorable 
compromise.
    That was the role I played from 1987 to 1990, while serving as a 
lawyer to the disability community as Congress enacted the Americans 
with Disabilities Act. During that time, I was privileged to work both 
with heroes of the disability community and with giants of the 
legislative process, including now Majority Leader Steny Hoyer and, 
here in the Senate, with you Senator Harkin, and with Senators Ted 
Kennedy, Orrin Hatch and Bob Dole.
    During enactment of the ADA, both the business and disability 
community were able to have a serious and open dialogue about what 
would make the law work well--and I feel proud that I was a part of 
making that dialogue happen. Indeed, the trust and bi-partisan effort 
of the original ADA enabled many of those same players to come together 
again last year and enact the ADA Amendments Act--again, with open and 
thoughtful dialogue.
    My effort to seek common ground and compromise does not mean that I 
lose sight of my core values. Those are strongly-held values about 
equal opportunity and justice. For that reason, I am grateful to have 
served Catholic Charities USA as its pro bono lawyer for over a 
decade--helping them carry out their values of Catholic social 
teaching.
    I also have a deep respect for and understanding of religious 
practice and a deep-seated tolerance for religious difference. I do not 
think it is possible to grow up as the daughter of a Holocaust survivor 
and not be committed to principles of pluralism and tolerance.
    I have found throughout my professional career that adhering to 
one's values is not inconsistent with finding common ground. It 
requires a belief in the importance of bringing all players to the 
table, of listening and hearing various sides of an issue, and finding 
those commonalities that may exist.
    Indeed, in my most recent project, Workplace Flexibility 2010, I 
have again tried to bring employers and employees together to see if we 
can find common ground on workplace issues. Through that project, I had 
the good fortune to work with Vicki Lipnic, my colleague here on this 
panel, while she was at the Department of Labor under the previous 
Administration. I hope I am given the opportunity to work with her 
again as a fellow Commissioner on the EEOC.
    Thank you for the opportunity to offer these opening remarks and I 
welcome your questions.

    The Chairman. Thank you very much, Ms. Feldblum, for again 
an excellent statement.
    And now we turn to Ms. Lipnic. Welcome again, Ms. Lipnic, 
and please proceed.

 STATEMENT OF VICTORIA A. LIPNIC, COUNSEL, SEYFARTH SHAW, LLP, 
                         WASHINGTON, DC

    Ms. Lipnic. Thank you, Chairman Harkin, Ranking Member 
Enzi, distinguished members of the committee.
    It is my honor to appear before you today as you consider 
my nomination to serve as a commissioner on the Equal 
Employment Opportunity Commission. This is the second time in 
my career that I have been considered by the U.S. Senate for 
confirmation.
    I recognize the special obligations carried by the Senate 
in considering nominees, and I am deeply honored by President 
Obama's nomination of me. I am humbled and grateful for this 
additional opportunity for public service.
    I would like to take a moment at the outset to thank my 
family, wonderful friends, and colleagues whose encouragement, 
love, support, and confidence in me over the years has brought 
me here today.
    My thanks especially to Senator McConnell for recommending 
me for this position.
    I would also like to acknowledge the members of the House 
of Representatives from the Education and Labor Committee who 
gave me an opportunity to work on issues of importance to all 
working Americans, including, as Senator Isakson mentioned, 
Minority Leader Boehner, former Congressman Cass Ballenger, 
and, God rest his soul, Charlie Norwood.
    I also want to acknowledge and will be forever grateful to 
former Secretary of Labor Elaine Chao for making me a part of 
her team at the Department of Labor.
    I want to recognize my fellow nominees to the Commission 
today. They bring a wealth of experience and commitment to 
civil rights for all Americans, and it is a privilege to be 
considered with them here.
    My appreciation also extends to the current serving 
Commissioners--Stuart Ishimaru, Connie Barker, and Christine 
Griffin--for their dedication and service to the work of the 
EEOC.
    I learned a long time ago, but especially from my tenure 
working in the House of Representatives and at the Department 
of Labor, that you are really only ever as good as the people 
you work with. My special thanks to the men and women of the 
Department of Labor, who dedicate their careers to public 
service, and to my former colleagues from the House Labor 
Committee, who work tirelessly on both sides of the aisle in 
support of creating fairness and opportunity in workplaces 
across our country.
    I am deeply grateful to my colleagues at Seyfarth Shaw for 
their encouragement and support and the work they do every day 
to make many workplaces better for all. I want to thank my 
colleague Camille Olson for being here today, who, Senator 
Harkin, I know has testified in front of this committee many 
times. And a finer group of attorneys I could not know.
    And most of all, my thanks to my parents--Janet and Ed 
Lipnic--for everything they ever taught me, but especially for 
the great gifts of a deep and abiding love of our country and 
belief in the dignity of public service. My mother, who is 
watching from home in Carrolltown, PA, and my father, like 
Jackie's father, a decorated World War II veteran and long-time 
mayor of my hometown, who is watching from above.
    As I ended my tenure at the Department of Labor and was 
about to embark on a new phase in my career, I was asked by 
many not only what I was interested in, but what I was 
passionate about. My response was almost instinctual. I care 
deeply about people's working lives.
    I believe mightily in the dignity of work and the 
transformational power of it. And that is why I believe equal 
opportunity in work is critical to all Americans and to who we 
are and how we define ourselves as a nation. I am especially 
mindful of this as the country is going through a wrenching 
period of unemployment, when the reality of being without work 
is facing so many Americans.
    The EEOC faces many challenges and unique opportunities as 
a guardian of civil rights in the 21st century. Indeed, we are 
a far different, more open, and tolerant country than in 1964. 
Yet, one need only peruse the case law to know that 
discrimination exists and persists in many forms and in many 
venues.
    When you look at all of the laws the EEOC enforces, they 
are as relevant today as when they were first enacted. 
Certainly, our changing demographics, increasingly pluralistic 
society, aging workforce, and greater labor force participation 
by women have changed the circumstances and attitudes under 
which we all share the workplace today, but they present a 
different, if no less important, set of challenges to the 
mission of the EEOC as when the agency began.
    You have my commitment to work with my fellow nominees and 
especially men and women who make up the Commission throughout 
the country as the career staff to be about its mission every 
day. I learned from my experience as Assistant Secretary of 
Labor that when you are privileged to serve in a position like 
that, or the one for which I am now nominated, you stand on the 
shoulders of all who came before you not just in your 
particular position, but more than that, of the legislators, 
activists, thought leaders, and ordinary working men and women 
who, at some point, took a stand against intolerance and helped 
us become a more generous Nation.
    Mr. Chairman, should I be confirmed for this position, I 
can only hope that I will carry out my responsibilities in a 
manner that will do honor to all who have advanced the cause of 
civil rights in our country, with understanding and respect 
toward all.
    Thank you, Mr. Chairman, Senator Enzi. I would be happy to 
take your questions.
    [The prepared statement of Ms. Lipnic follows:]
    The Chairman. Thank you again, Ms. Lipnic, and for your 
excellent statement.
    And now we turn to Mr. David Lopez, nominee for general 
counsel. Welcome, Mr. Lopez.

STATEMENT OF P. DAVID LOPEZ, SUPERVISORY TRIAL ATTORNEY, EQUAL 
  EMPLOYMENT OPPORTUNITY COMMISSION, PHOENIX DISTRICT OFFICE, 
                          PHOENIX, AZ

    Mr. Lopez. Thank you, Chairman Harkin, Senator Enzi, and 
members of the committee. It is an honor to appear before you 
today as you consider my nomination to be general counsel of 
the U.S. Equal Employment Opportunity Commission.
    I am here alone in body, but my heart is more than 3,000 
miles away in the American Southwest--Phoenix, AZ--that is home 
to my wife for 19 years and my cornerstone. We have been 
blessed with three rambunctious and opinionated boys--Javier, 
14; Julian Diego, 11; and Luis Andres, who is 9. All three 
attend St. Gregory's Catholic School in central Phoenix.
    My parents, Ernesto and Faith Lopez, are both from families 
that go back several hundred years and many generations in 
northern New Mexico. My father is a retired eighth grade 
schoolteacher. My mother, who is also retired, owned a small 
shoe store.
    When I was growing up, I witnessed both my parents, guided 
by their faith, demonstrate the importance of service to the 
poor and disenfranchised. My parents worked with Cesar Chavez 
and the migrant farm worker community and instilled in us an 
awareness that we had obligations to society greater than 
ourselves.
    When I was 14, my parents divorced, and we moved to 
Woodburn, OR, in the Willamette Valley. My mother worked full 
time, and I had obligations for my younger siblings.
    When I was 16, I left high school. True, I was bored, but I 
had every intention of continuing with my education. I worked 
as a dishwasher. I listened to music. But most of all, I read, 
everything I could put my hands on.
    Soon after dropping out of school, I started taking classes 
at a local community college, and when I was 17, I returned to 
Arizona and enrolled in Arizona State University. When I 
graduated, I was admitted to Harvard Law School. And at the age 
of 21, I went back east for the first time, without a jacket or 
galoshes, a child of the southwest in the New England snow, but 
with a plan to return to Phoenix and practice law.
    Then I met Maria, Boston-born and raised, and I deferred my 
plans of returning home. I began my career at Spiegel & 
McDiarmid, and practiced energy and anti-trust law. But when 
they let me work on a pro bono employment discrimination case, 
I was reminded of my calling, and I left. I moved over to the 
Justice Department Civil Rights Division, Employment Litigation 
Section, where I was honored and had the privilege to practice 
in civil and Federal courts throughout this country.
    In 1994, Gilbert Casellas, who had just been sworn in as 
the chairman of the EEOC, hired me to be one of his special 
assistants. This was a very exciting time at the Commission, a 
renaissance of ideas and activities.
    Chairman Casellas and the other Commissioners brought 
dramatic change, streamlined the charge processing system, and 
developed a strategic approach to litigation. When Chairman 
Casellas resigned, I returned to Phoenix to work as an EEOC 
trial attorney. After 13 years on the east coast, I, at last, 
realized my dream of practicing civil rights law in my 
hometown.
    As my wife and children will tell you, it has been 
challenging and rewarding. During these 11 years in the EEOC 
Phoenix legal unit, I have been reminded every day that 
discrimination can disrupt lives.
    It has been a profound privilege to advocate for several 
individuals who have had the courage to stand up for themselves 
in the face of discrimination. It is for these heroes that I go 
to work every day. I want to tell you about a couple of them.
    One hero is Chad Farr, a remarkable young man from a tiny 
Arizona town of Cottonwood. At the age of 9, Chad was diagnosed 
with retinitis pigmentosa, severe tunnel vision that is akin to 
looking at the world through a straw.
    Chad was ambitious and worked twice as hard as everybody 
else. When he asked for an accommodation to bring his service 
dog, Harley, to work, he was given the runaround for more than 
a year and effectively terminated. As a result of our suit, 
AutoZone altered its accommodation policies and agreed to pay 
Chad damages. Chad used this award to start a small trucking 
business, which today is thriving.
    Another hero I will mention is Paul Franks, a 40-year-old 
African-American who worked in an electronics warehouse. Soon 
after he was hired, a co-worker referred to him several times 
as ``boy'' and asked whether he could call him the ``N'' word. 
Mr. Franks said, ``No. Please call me Paul.''
    When he complained to his boss about the comments, he was 
fired for being a troublemaker. He suffered enormous hardship 
and ended up living in his car. We resolved this case with a 
consent decree and damages.
    Senators, I am honored and humbled by President Obama's 
nomination of me to be general counsel of the EEOC. It is an 
honor for me and my family, and it is also a great affirmation 
of support for the EEOC staff in the field who work to preserve 
the promise of this great country. Out in the trenches, in 
Federal courts throughout this country, hundreds of committed 
lawyers and support staff fight every day for workers to be 
assessed on their individual merit and not on stereotypes.
    I certainly acknowledge Jim Lee, acting general counsel, 
and Ron Cooper and Eric Dreiband, the two previous EEOC general 
counsels. We must continue to build on the efforts of these 
gentlemen to build an infrastructure that supports litigation 
and to approach litigation strategically.
    Senators, we all benefit from a strong and effective EEOC. 
I want to close by reading a letter I received from an eighth 
grade girl, Stephanie, who I met during a career day at Isaac 
Middle School in West Phoenix. I have posted Stephanie's letter 
in my office as a daily reminder of why I practice law.

          ``Dear Mr. David Lopez, thank you for giving up your 
        time to come and talk to us. I liked it when you told 
        us about the girl and the manager touching them because 
        when I start to work in the summer, I want to be aware 
        of what might happen to me.
          ``When I asked you if lawyers were devils, it was 
        only because when I was little and wanted to be a 
        lawyer, my mom said lawyers were devils and God was 
        going to get them. But I don't believe that anymore.''

    [Laughter.]
    Senators, thank you for your time, and I look forward to 
answering any questions you might have.
    [The prepared statement of Mr. Lopez follows:]
                  Prepared Statement of P. David Lopez
    Thank you, Chairman Harkin, Senator Enzi, and members of the 
committee. It is an honor to appear before you today as you consider my 
nomination to be the General Counsel of the U.S. Equal Employment 
Opportunity Commission.
    I am here alone in body, but my heart is more than 3,000 miles away 
in Phoenix, in the American Southwest. That's home to my life partner 
and wife for 19 years and my cornerstone, Maria Leyva. We have been 
blessed with three rambunctious, opinionated boys: Javier 14, Julian 
Diego 11, and Luis Andres, who is 9. All three attend St. Gregory's 
School in Central Phoenix.
    I am the second of four children. My parents, Ernesto and Faith 
Lopez, are both from families that go back several hundred years and 
many generations in northern New Mexico. My father is a retired 8th 
grade teacher; my mother, who is also retired, owned a small shoe 
store. When I was growing up, I witnessed both my parents, guided by 
their faith, demonstrate the importance of service to the poor and 
disenfranchised. My parents worked with Cesar Chavez and the migrant 
farm worker community and instilled in us the awareness that we had 
obligations to society greater than ourselves.
    When I was 14, my parents divorced and my mother, two brothers and 
I moved from Tucson to Woodburn, OR, a small farming community. My 
mother worked full-time and I had significant obligations for my 
younger brothers. When I was 16 I left high school, one of several 
schools I had attended in Oregon's Willamette Valley, and got a job as 
a dishwasher. I was a bit bored, but had every intention of continuing 
my education. I washed dishes, I listened to music, but most of all, I 
read. I read everything I could put my hands on.
    Soon after dropping out of school, I started taking classes at a 
local community college and, when I was 17, I returned to Arizona and 
enrolled at Arizona State University to pursue a degree in political 
science. I worked through college. When I graduated, I was admitted to 
Harvard Law School and, at the age of 21, I went back East, for the 
first time, without a jacket or galoshes, a child of the Southwest in 
the New England snow. My plan was to return to Phoenix and practice 
civil rights law.
    Then I met Maria, Boston born and raised, and I deferred my plans 
of returning home. I began my career with Spiegel and McDiarmid, a mid-
sized Washington, DC law firm. I practiced energy law and anti-trust 
law. I loved the firm but when they permitted me to take an employment 
discrimination case pro bono, I was reminded of my calling. In 
response, I moved to the Department of Justice Civil Rights Division, 
Employment Litigation Section, where I had the opportunity to practice 
law on behalf of the United States in Federal courts all over the 
country.
    In 1994, I received a call from Gilbert Casellas, who had just been 
sworn in as the Chairman of the EEOC. He was looking for an attorney 
advisor. I interviewed and eagerly accepted his job offer. This was a 
very exciting time at the Commission; a true renaissance in ideas and 
activity. During this period, Chairman Casellas and the other 
Commissioners brought dramatic change and efficiency to the agency. 
Under Chairman Casellas's leadership, the EEOC streamlined the charge 
processing system, developed a strategic approach to litigation and 
enforcement, and developed a fabulous and innovative mediation program. 
The Commission started again to think in earnest about the model of a 
national law firm.
    When Chairman Casellas resigned, I returned to Phoenix to work as 
an EEOC trial attorney, and, after 13 years on the East coast, realized 
my dream of practicing civil rights law in my hometown. As my wife and 
children will tell you: It has been challenging and rewarding.
    During these past 11 years in the EEOC Phoenix legal unit, much of 
it under the wonderful leadership of Regional Attorney Mary Jo O'Neill, 
I have been reminded every day that discrimination is something that 
can disrupt lives and can happen to anyone. It has been a profound 
privilege to advocate for several individuals who have had the courage 
to stand up for themselves in the face of discrimination. It is for 
these heroes that I go to work every day. Let me tell you about a few 
of my heroes:

     One hero is Chad Farr, a remarkable young man who lives in 
Cottonwood, AZ. At the age of 9, Chad was diagnosed with retinitis 
pigmentosa. This permanent and degenerative condition caused severe 
tunnel vision, akin to looking at the world through a straw. Chad was 
ambitious and worked twice as hard as everyone else. When he asked for 
an accommodation to bring his service animal, Harley, with him to work 
as a customer service representative at a local AutoZone store, he was 
given the runaround for more than a year and effectively terminated. As 
a result of our suit, AutoZone altered its accommodation polices and 
agreed to pay Chad damages. Chad used this award to start his own small 
trucking business, which is thriving.
     Another one of my heroes is Paul Franks, a 40-year-old 
African-American, who worked in an electronics warehouse. Soon after he 
was hired, a co-worker referred to him as ``boy'' and asked whether he 
could call him the ``n'' word. Mr. Franks said, ``No. Please call me 
`Paul.' '' When he complained to his boss about the comments, he was 
fired for being a ``troublemaker.'' After losing his job, he suffered 
enormous hardship and ended up living in his car. We resolved the case 
with a consent decree and damages. This case reminds us of the need to 
remain forever vigilant in preventing and prosecuting race 
discrimination, which is the foundation of the Federal anti-
discrimination laws that protect us all.
     Eight of my other heroes are people whose names I do not 
know, the members of a jury in Arizona, who, in June 2008, acting as 
the conscience of the community, stood up against religious intolerance 
and bigotry, and rendered a verdict, including punitive damages, to 
Bilan Nur. Bilan came to this country as a refugee from war-torn 
Somalia. Bilan had an American dream. She learned English and attended 
college. Bilan found a job with Alamo Rental Car as a sales agent. She 
asked her boss for the simple accommodation of being permitted to keep 
her head covered in observation of Ramadan. She was permitted to do so 
in 2000, but, when she attempted to do so in November 2001, right after 
September 11, she was fired and told ``her religion would understand 
the need to remove her scarf to keep her job.'' The heroes on the jury 
reminded us of the best principles for which our Nation stands.
     The final hero I will mention is Stacey Wing, a young 
woman with dreams of earning a paralegal license, who found herself 
down on her luck. She found work at an auto retailer because it was on 
her bus route. Immediately, her boss subjected her to the most 
repulsive and violative sexual harassment imaginable. When she 
complained to her company, her pleas for help were ignored for several 
months until a security camera caught her boss subjecting her to one of 
these acts. Last June, an Arizona jury listened to her, found the 
company liable for sexual harassment, and imposed damages, including 
punitive damages. The Court recently required additional injunctive 
relief, as well.

    Senators, I am honored and humbled by President Obama's nomination 
of me to be General Counsel of the EEOC. It is an honor for me and my 
family but it is also an affirmation of support for the EEOC staff, in 
the field fighting every day, often with meager resources, to vindicate 
civil rights and preserve the promise of this great country. Out in the 
trenches, in Federal courts throughout this country, hundreds of 
committed lawyers and support staff fight every day for workers to be 
assessed on their individual merit and not on the basis of outdated and 
ugly stereotypes.
    Among these public servants, special acknowledgement should be made 
to Jim Lee, Acting General Counsel, as well as Ron Cooper and Eric 
Dreiband, the two previous EEOC General Counsels. All three of these 
gentlemen have worked hard to implement the model of a national law 
firm and to effectively enforce civil rights, often on a tight budget. 
They have also demanded the highest standards of professionalism from 
the EEOC staff.
    If confirmed as General Counsel, I will build on the efforts by 
these gentlemen to create a national law firm that is able to 
effectively and efficiently muster its resources to combat 
discrimination and ensure equal opportunity throughout this Nation.
    First, we must continue to build our infrastructure and eliminate 
the often mundane but practical impediments to effective law 
enforcement. This includes ensuring adequate support staff for the 
field. It also includes implementing advances in technology to increase 
the EEOC's ability to maximize its effectiveness on a limited budget.
    Second, given the budget realities, the EEOC's litigation program 
should make every effort to operate efficiently and as an integrated 
team. We must nurture a culture of collaboration within the agency. We 
need to cross-pollinate ideas and strategies among districts and 
between headquarters and the field so we can operate not as individual 
offices, but as an integrated team. We have considerable expertise 
within the agency, and we need to ensure that a person with particular 
expertise is able to share it with colleagues.
    Third, again given the budget realities, the EEOC litigation 
program should operate strategically. We need to identify emerging 
areas of the law, such as the coverage of people with diabetes or 
epilepsy under the recently enacted ADA amendments, and develop small 
work groups to prosecute these cases strategically. A component of a 
strategic litigation program involves the continued development of our 
systemic litigation program. In 2005, Chair Dominguez established a 
Systemic Task Force under the leadership of Commissioner Leslie 
Silverman. This task force made several recommendations to further the 
creation of an effective program to attack systemic discrimination. 
Many of these recommendations have been implemented. Still, the EEOC 
must continue its efforts to create a culture of collaboration to 
support these systemic cases. Again, we need to make sure that EEOC 
resources and expertise are shared, so we can replicate the effective 
systemic enforcement of certain districts throughout the agency.
    Senators, we all benefit from a strong and effective EEOC. Let me 
close by reading a letter I received from an eighth-grade girl, 
Stephanie, who I met during a career day at Isaac Middle School in West 
Phoenix. I have posted Stephanie's letter in my office to remind me 
every day why I practice law:

          Dear Mr. David Lopez,

          Thank you for giving up your time to come and talk to us. I 
        liked it when you told us about the girl and the manager 
        touching them because when I start to work in the summer I want 
        to be aware of what might happen to me. When I asked you if 
        lawyers were devils, it was only cause when I was little and 
        wanted to be a lawyer, my mom said lawyers were devils and God 
        was going to get them but I don't believe in that anymore.

    Thank you for your time. I look forward to any questions that you 
may have.

    The Chairman. And a little bit of humor, thank you very 
much.
    I will start a 5-minute round, and we will just do 5-minute 
rounds for questions here.
    My first question, Ms. Berrien, again, just to reiterate, 
EEOC has a backlog of 85,000 claims. The number of annual 
claims has increased in recent years to over 95,000. It takes 
an average of 294 days to process a discrimination claim. As I 
said in my statement, this is unacceptable.
    As chair of the Commission, what steps do you intend to 
take to bring better management to the agency and decrease the 
backlog, and what recommendations or requests will you be 
making of Congress?
    Ms. Berrien. Well, first of all, Senator, I recognize that 
behind the term ``backlog'' are many people who are waiting for 
some investigation, resolution, and assistance with a claim. So 
it is not a term that I take lightly.
    I also understand that there are employers who are waiting 
for resolution of claims as well. I take it, first of all, very 
seriously when you speak and when other members of this body 
speak about the backlog that the agency faces.
    As a nominee, as you know, there is a great deal of 
information that is within the jurisdiction of the EEOC and its 
employees, and I am not privy to that, of course. I am, 
however, already looking very carefully at the publicly 
available information. Information like the performance reports 
to this Congress, information like the budget justification 
that the agency has submitted, and information from hearings 
before this Congress to try to better understand some of the 
things that may be responsible for the backlog, to try to 
understand what measures have been taken in the past, such as 
the priority charge handling procedures that were put in place 
by Commissioner Casellas--sorry, Chair Casellas in 1995.
    I am certainly looking forward to working closely with 
Acting Chair Ishimaru, with the other Commissioners, and staff 
of the agency to get a better understanding, both of the causes 
for that backlog and the resources available within the agency 
currently to address the problem.
    There is no question that it is a very, very enormous 
challenge facing the agency and that the things that have 
created it are complex, as you have noted. Resources declined, 
according to the GAO, approximately 25 percent in the years 
2000 to 2008, at the same time that charges have increased. 
There are some very, very dramatic challenges.
    However, one thing that I would do is--again, looking to 
the GAO and its assessment of the situation at the EEOC, I 
think it is critically important that we identify the best 
practices within the agency. But I wouldn't stop there. I am 
someone who firmly believes that you shouldn't re-invent the 
wheel, and if there are best practices to be gleaned and 
determined in other places, we should draw upon those as well, 
as the GAO recommended.
    I am also--as I shared before, I can share with you an 
approach. I am willing to work hard. I have the high 
expectations, and I am also willing to listen and listen 
carefully to a full spectrum of stakeholders not only about the 
seriousness of the problem, but about some ways we might 
address it.
    The Chairman. Thank you very much, Ms. Berrien.
    Ms. Feldblum, now I have worked with you off and on, as I 
said, for 21 years. Something has come to our attention here. 
It is a petition that says ``Beyond Same-Sex Marriage: A New 
Strategic Vision for All Our Families and Relationships.'' It 
is dated July 26, 2006, some 27 pages long. You signed onto 
this petition at some point in time. I don't know exactly when.
    As I was looking through it, one of the things that it says 
is that--let me read it here. It says that they support, this 
petition would support committed, loving ``households in which 
there is more than one conjugal partner.'' Well, that says 
polygamy to me. In all these years I worked with you, I didn't 
know you supported polygamy, Ms. Feldblum. But then again, I 
guess we never discussed that.
    Can you please enlighten us as to whether you support 
polygamy or not?
    Ms. Feldblum. Thank you, Senator, for asking me that 
question.
    I do not support polygamy. I am sorry I signed that 
document, and I have asked for my name to be removed. I agreed 
with the general thrust of the statement that we ought to 
support care-
giving relationships. But the statement goes beyond what I 
would have said to communicate that point. It was, therefore, a 
mistake to sign that document.
    The Chairman. A lot of us get petitions to sign. Someone 
says, ``Would you sign this? Would you sign that?'' And 
sometimes, especially if someone that we know as a friend, 
someone puts something there, and you kind of glance at it, and 
you would say, ``What is this for? OK. Oh, fine. I'm in a 
hurry.'' Sign it.
    I am just wondering how much of this you had read and gave 
thought to before you signed it, or was that just one of those 
things where you just sort of--a friend puts it out there, and 
you signed it. I would just like to know the genesis of that.
    Ms. Feldblum. Sure. And it was, in fact, another academic, 
a law professor from Columbia University who had sent it to me. 
I think probably most of those 27 pages is a list of some 300 
or so academics and other activists who had signed.
    And as I said, I agreed with the general thrust of the 
statement, which I did read through, which was designed to 
support the range of care-giving relationships. I think this 
was in 2006. I was very active doing my work in Workplace 
Flexibility 2010. It was very clear to me the range of 
different care-giving relationships that exist that we need to 
support.
    However, as I just noted, the statement goes beyond what I 
would have said to make that statement of care-giving 
relationships, and that is why it was a mistake to sign it, and 
that is why I have asked for my name to be removed.
    The Chairman. Thank you very much, Ms. Feldblum.
    Senator Enzi.
    Senator Enzi. Thank you, Mr. Chairman.
    And again, I want to thank all of you for your willingness 
to subject yourselves to this and public service, and I 
appreciate that you are willing to do that. And we do have a 
limited time for questions. I will provide written questions to 
you as well.
    I will begin with Ms. Berrien. As nominee for EEOC 
chairman, I appreciate in your statement the way you covered 
your work experience, your history, goals, and the duties of 
the position. I think you did that very precisely.
    Do you believe that the EEOC receives adequate 
appropriations and has adequate staffing levels to accomplish 
the missions you outlined?
    Ms. Berrien. Well, thank you very much for that question, 
Senator.
    First of all, I note that the last appropriation to the 
agency was increased, and that was important, given the size of 
the backlog, given the growth of enforcement responsibility for 
the agency. As you know, when the agency was founded, its 
responsibility was to enforce Title VII of the Civil Rights Act 
of 1964. Since then, its charge has broadened considerably so 
that more and more forms of discrimination in the workforce are 
addressed. So its responsibilities have grown.
    I can't say at this point with the information that I have 
available a precise amount of growth, if it were possible, that 
might help the agency to achieve its goals and particularly to 
address the concerns with operations and performance you have 
mentioned. But I certainly look forward to working with you, 
with this Congress, after I have an opportunity to review with 
the agency both the resources and how they are being used, do 
all we can to maximize efficient use of the resources, and then 
return to this Congress with a very specific and better-
informed recommendation about how additional resources could be 
used to advance the mission of the agency and to better serve 
the public.
    Senator Enzi. Thank you. Thank you.
    Ms. Feldblum, as we expand the number of protected classes, 
it is perhaps inevitable that some of them begin to clash. And 
I noted in your statement the work that you have done with 
Catholic Charities. But while religious liberty is a 
cornerstone of this country, when the religious practitioner 
becomes an employer and the party to Government contracts, the 
scope of the religious freedom they may exercise has been 
called into question in some quarters.
    How broadly do you view the religious exemption under the 
title VII, and if confirmed as an EEOC Commissioner, would you 
take actions to support the exemption?
    Ms. Feldblum. Thank you, Senator, for raising the issue of 
religious liberty.
    As you saw from my opening statement, it is something I am 
deeply steeped in, in terms of going to Orthodox Jewish 
elementary schools and high schools, and that was my life. It 
was living in a religious way.
    So as a personal matter, I feel about it very strongly. And 
as a legal matter, I think it is very important that the 
protections we have in place for religious liberty are 
effectively enforced. For example, there is a broad religious 
exemption for religious organizations in title VII, where you 
can hire people of your own religion. That is a very important 
exemption for religious organizations. I feel very confident, 
if confirmed as a commissioner to the EEOC, strongly supporting 
that exemption.
    In addition, there is an exemption in the Employment Non-
Discrimination Act that is pending before you now that is 
actually going to cite a broader exemption allowing 
discrimination on the basis of sexual orientation and gender 
identity. I am comfortable with that exemption. I think it is 
appropriate, would have no problem at all as a commissioner of 
the EEOC enforcing that exemption.
    Senator Enzi. Thank you.
    Another question similar to what you were just talking 
about there, do you believe that victims of employment 
discrimination based upon sexual orientation or identity should 
be able to bring disparate impact claims based on employment 
rule or policy and why or why not?
    Ms. Feldblum. As I understand it--I haven't looked at the 
ENDA bill recently, though I doubt that this was changed. But 
very early on in the early years of drafting that legislation, 
there was a provision that was put in that said that there 
would not be an allowance for there to be disparate impact on 
the basis of sexual orientation and gender identity. And I was 
comfortable with that at the time. I would be comfortable with 
it now.
    Senator Enzi. Thank you.
    And I see that time has expired, but I really need to 
comment that I am sure Mr. Lopez has some outstanding 
background if his mother owned a shoe store.
    [Laughter.]
    That is also some of my background, and our kids feel that 
they got some benefit from that as well.
    I will submit questions to all of you. I have quite a few 
more questions just to be sure we are doing our job.
    Thank you.
    The Chairman. Thank you, Senator Enzi.
    Senator Alexander.

                     Statement of Senator Alexander

    Senator Alexander. Thanks, Mr. Chairman.
    Thanks to each of you for your willingness to serve. A few 
years ago, when Senator Harkin was even a member of the 
committee, I had the privilege of sitting down there and being 
in a confirmation hearing. And I always thought it was a trick 
because they make the witnesses sit way down low, and we sit 
way up high.
    [Laughter.]
    But thank you for being here.
    I just have one area I would like to explore. Ms. Berrien, 
let me start with you. It has to do with our common language, 
the English language. You are aware, I assume, that since 1906 
new Americans have been required to learn English?
    Ms. Berrien. Yes, I am.
    Senator Alexander. And you are aware that children in our 
public schools are required to be tested in English, and if 
they don't know it, that they learn it as soon as they can?
    Ms. Berrien. Yes.
    Senator Alexander. And were you aware that the U.S. Senate 
in June 2007 by a bipartisan majority of about 2 to 1, 64 to 
33, adopted English as our national language?
    Ms. Berrien. I don't know the specific language of that, 
but I certainly will look at it.
    Senator Alexander. Well, in light of that, do you think it 
is a wise policy for the EEOC to sue an employer who has 
required the employer's employees to speak English on the job?
    Ms. Berrien. Senator, I am not familiar with the entire 
docket at this time, certainly not those charges that may be 
pending because, of course, those are confidential. But I do 
know that title VII prohibits discrimination on the basis of 
national origin. And my understanding of the EEOC's application 
and interpretation of certain employer policies related to 
language usage is that they have pursued cases based on concern 
that a violation of title VII has occurred and that the 
national origin of employees was the actual cause.
    Now, obviously, in any particular case, the EEOC is 
required to investigate and only apply the law as it has been 
decided--
    Senator Alexander. Let me--but that is my point. I mean, I 
think that is an unwarranted policy of the EEOC, and the new 
Americans have to learn it. Children have to be tested in it. 
The Senate said it is our national language. And there is 
nothing in title VII by its terms that says speaking our common 
language is discrimination.
    In fact, my own view and I think the view of every time it 
has come up in the Senate or in the House, it has been the view 
of the majority that we should be encouraging and helping 
people to speak our common language, not imposing on employers 
the burden of having to hire a lawyer to decide in that case, 
the case of the Salvation Army, which had in Boston a 
requirement that its employees speak English, gave them a 
period of time in which to learn it. They didn't, and so they 
said they couldn't work there anymore.
    That brought a lawsuit, and it makes it look like to 
thousands of businesses across the country that you have to 
hire a lawyer to see whether there is a business purpose that 
justifies you requiring your employees to speak the language 
that is our common language. I think, in my view, the EEOC is 
way off base on a legal matter.
    Now I am going to ask you another way. You were just 
talking about how big is the backlog of cases at the EEOC of 
important matters that need to be resolved?
    Ms. Berrien. Well, as Senator Harkin observed in his 
comments, the current backlog is roughly 85,000 charges. The 
docket of litigation is substantially smaller, but it is still 
sizable.
    Senator Alexander. Well, wouldn't you think there would be 
more urgent cases for the EEOC to pursue than to sue an 
employer for requiring an employee to speak English on the job 
when English is our common language, and we are doing all we 
can to help our children learn it and to help new Americans 
learn it?
    Ms. Berrien. Senator, I completely agree that English is 
the language of opportunity and that English and learning 
English is a priority for the many people who immigrate to the 
United States from across the world. It is today, as it has 
been for the many years that this Nation has been a refuge for 
people from across the globe.
    Senator Alexander. Yes, but what about suing? But my 
problem is why should a shoe shop owner be sued or have to hire 
a lawyer in order to justify a common purpose if he wants the 
employee to speak English on the job? That is my--and I intend 
to monitor that carefully as time goes on and perhaps to 
reintroduce my legislation.
    Ms. Berrien. I appreciate that, and I don't want to leave 
you with the impression that, first of all, that I have either 
prejudged the issue or that I am not completely willing and 
expecting as the chair to take this and all concerns of this 
Congress very seriously and to be, in consultation with the 
staff and leadership of the EEOC, not just knowledgeable, but, 
where necessary, responsive to concerns that are raised.
    Please understand that I am both mindful of the issues that 
you have raised, but ultimately, as everyone within the EEOC 
is, we are responsible with enforcing the law in the ways that 
the courts have interpreted them. And that would be ultimately, 
I believe, the guiding principle for the agency.
    Senator Alexander. Thank you, Mr. Chairman.
    The Chairman. Thank you.
    Oh, I am sorry.
    Senator Hagan.

                       Statement of Senator Hagan

    Senator Hagan. Thank you, Mr. Chairman.
     I just wanted to thank all of you for being here. I have 
had a chance to meet with a couple of you individually, and I 
am very impressed by all of your qualifications and your 
thoughtful views on what you would do in these positions that 
you have been nominated for.
    In North Carolina, I have heard from people who think the 
EEOC is incorrectly perceived as an enemy, and they would like 
to think of the EEOC as more of a partner. What do you think we 
can do to change that conversation so people see the EEOC more 
as an ally in the fight against discrimination?
    Ms. Berrien, do you want to start with that?
    Ms. Berrien. Certainly, Senator.
    As I mentioned in my statement, I consider it an absolute 
priority to do and to direct resources of the EEOC in ways that 
will prevent violation in the first place. Personally, as a 
lawyer and even in my own life experience, I have seen that 
where the law is and can be well known and respected, long 
before it reaches a point of going into court or filing a 
charge of discrimination, that is optimal.
    I witnessed it personally. My father, when he finished 
pharmacy school here in DC, could not get a job in a chain 
drugstore. They didn't hire black pharmacists at the time.
    Years later, and now I realize within a year of the passage 
and effective date of title VII, he was hired. Employers and 
workforces changed in part because of knowledge of what the law 
required, and where that was not sufficient, then the EEOC and 
private lawyers and others stepped in and pursued enforcement 
actions.
    The EEOC is also responsible for using conciliation methods 
wherever possible so that court is not the first resort. By the 
statute and by practice, court comes only after other efforts 
to resolve litigation or resolve charges of discrimination 
fail. That is the policy, and my expectation is that that would 
be enforced as well.
    And then, finally, we have available an incredible array of 
resources, some of which weren't known or imagined at the time 
title VII was passed and the EEOC opened its doors. The 
Internet, online possibilities, the various social networking 
media, things that make it possible to communicate with large 
numbers of people at relatively low cost, and I think we can 
and should make maximum use of those as well.
    I look forward to working with our communications office 
and staff and others to try to do that. Those are a few of the 
ways I think that we can move less--out of the adversarial 
realm as much as possible and still be effective in enforcing 
the law.
    Senator Hagan. Thank you.
    Does anybody else want to comment on that question?
    Ms. Feldblum. A quick statement that that is an issue very 
near and dear to my heart, actually, about how to have the 
Government and employees and employers figure out a way to work 
together to create a discrimination-free workplace, because a 
discrimination-free workplace is an effective workplace. It is 
a happy workplace. It is a more productive workplace.
    I think about Senator Enzi talking about when you were a 
small business owner and running things. You don't want one of 
your supervisors sexually harassing someone that then is going 
to cause difficulties. You know, you don't want someone saying, 
``Can I call you `boy'?'' You don't want that.
    How do we bring all of these actors together, all of which 
have a common interest in the ultimate goal of a 
discrimination-free workplace, which is an effective workplace?
    Senator Hagan. Thank you.
    Recently, we passed legislation that was called the Lilly 
Ledbetter Fair Pay Act, primarily to ensure that someone who 
had suffered wage discrimination would have a chance to right 
the wrong within a reasonable time after each instance of 
discrimination. What steps do you think the EEOC should take to 
enforce this important law? And additionally, what else do you 
think the EEOC can do to target sex or gender discrimination 
such as, as you just mentioned, sexual harassment or pregnancy?
    Ms. Berrien. Well, as you may know, Senator, in the latest 
statistics concerning the litigation docket of the EEOC, 
charges that allege sex discrimination and sex harassment are 
actually the largest number of charges filed in part of the 
docket, I should say, that is litigated right now.
    There is no question that sex discrimination exists and 
persists, if I may use or borrow the phrase from my fellow 
nominee, Ms. Lipnic, and that the EEOC has and must continue to 
work vigorously to address serious instances of sex 
discrimination and sex harassment.
    One of the things that I have done in my career is work 
with the Women's Rights Project of the ACLU. I have a 
tremendous interest in and some background of both what the law 
requires in that area, but also great concern. The Ledbetter 
Act is now, as you know, taking effect, and it has raised 
consciousness and awareness about the continuing problem of 
women who are paid less for doing identical work.
    And I was quite touched to see that Ms. Ledbetter visited 
the Birmingham EEOC office in March, and among other things, 
she acknowledged that the EEOC employees there were very 
responsible, very much responsible for the fact that she not 
only brought her case, but that she went to the U.S. Supreme 
Court and ultimately became the namesake of an act that could 
change the future work life and experience for many women in 
this country.
    It will be an honor to be able to work with you and with 
the staff of the EEOC and others to ensure that the act is 
fully and effectively enforced.
    Senator Hagan. Ms. Lipnic.
    Ms. Lipnic. Senator Hagan, if I could answer that question 
by going back to your first question about how the EEOC is 
perceived and whether it is by employees who are seeking 
redress or by employers who are subject to an investigation, 
and I have a lot of experience having been the head of a 
regulatory enforcement agency, a couple of them at the Labor 
Department. I think you first have to keep in mind, and this is 
not something that is particularly welcomed by employers, but 
it is a regulatory enforcement agency, and the charge of the 
agency is to enforce the law.
    Having said that, both for employees and employers, justice 
delayed is justice denied. And I think enforcement agencies 
have to be very conscious of the authority that they bring to 
bear on an employee's behalf, but at that workplace and how it 
can in pursuit of the investigation be very disruptive in terms 
of the discovery process, and that should be taken into 
consideration and the amount of time it takes to bring 
something to resolution.
    And in addition to what Jackie said earlier, I think the 
conciliation process is something that I would certainly want 
to give a lot of attention to and make sure that that is a 
vigorous process at the EEOC as it fulfills its statutory 
obligations. And that would apply in the context also of the 
enforcement of the Ledbetter Act.
    Senator Hagan. Thank you.
    I see that I am over my time. I did want to just agree with 
the other Senators about the backlog of cases. I think it is 
critical that we obviously begin addressing those as quickly as 
possible, and I thank you for your comments on that.
    Thank you. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Hagan.
    Well, again, if there are no further questions--do you have 
any follow-ups or anything?
    Well, we thank you all very much for being here. It is very 
clear that each of you is extremely well qualified for the 
positions for which you have been nominated. I might add, I 
have always had a high esteem for dedicated public servants. 
And I think each of you is a great example of dedicated public 
servants and giving your best to our country.
    And so, I thank you all very much for all you have done in 
the past. I thank you for your willingness to serve in this 
capacity. We will do all we can to move this forward as 
expeditiously as possible.
    The record of this hearing remains open for 10 days. 
Members may submit questions in writing to the nominees.
    And if there is no further business, the committee will 
stand adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

   Response to Questions of the HELP Committee by Jacqueline Berrien
    Question 1. In Part I, page 5, question 4, under the Potential 
Conflicts of Interest section of the committee application, you 
indicate that you participated in legislative activities related to the 
passage of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King 
Voting Rights Act Reauthorization and Amendments Act of 2006, in 
addition to nominations to the Supreme Court. Could you please describe 
these activities in more detail to the committee?
    Answer 1. My current employer, the NAACP Legal Defense and 
Educational Fund, Inc. (LDF) issued public reports in 2005 concerning 
the Supreme Court nominations of Chief Justice Roberts and Justice 
Alito. As LDF's Associate Director-Counsel, I performed supervisory 
functions in connection with the production of those reports 
(principally reviewing drafts). Members of LDF's staff advocated for 
reauthorization of the Voting Rights Act, and again, I performed 
supervisory functions in connection with that work. I also made public 
statements concerning LDF's work on these issues.

    Question 2. In Part I, page 5, question 5 of the committee 
application, under the Potential Conflicts of Interest section, you 
stated that should a conflict arise you would resolve the matter in 
accordance with the terms of an ethics agreement in which you entered 
with the EEOC's designated ethics official. Could you please clarify to 
the committee what steps exactly would you take to resolve a potential 
conflict of interest?
    Answer 2. As I stated in the attachment to Part I of the 
questionnaire that I submitted to the Health, Education, Labor, and 
Pensions Committee in July, as well as in the ethics agreement 
developed in consultation with the EEOC's designated agency ethics 
officials, if confirmed by the Senate, I would take the following steps 
to resolve potential conflicts of interest:

     Upon confirmation, I will resign my positions as Associate 
Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc., 
Trustee of Oberlin College, Oberlin, OH, Advisory Board member of the 
Philanthropic Initiative on Racial Equity (a project of the Tides 
Foundation) Washington, DC and Adjunct Professor of Law at New York Law 
School. Pursuant to 5 CFR 2635.502, I will not participate personally 
and substantially in any particular matter involving specific parties 
in which any of these entities is a party or represents a party for a 
period of 1 year after my resignation from each of those organizations 
unless I am authorized to participate, pursuant to 5 CFR 2635.502(d).
     I will not participate personally and substantially in any 
particular matter involving specific parties in which a former client 
of mine is a party or represents a party, for a period of 1 year after 
I last provided service to that client, unless I am first authorized to 
participate, pursuant to 5 CFR  2635.502(d).
     I will continue to participate in the defined benefit 
pension plans of the Ford Foundation and the NAACP Legal Defense and 
Educational Fund, Inc. and, consequently, for as long as I continue to 
participate in those plans, I will not participate personally and 
substantially in any particular matter that has a direct and 
predictable effect on the ability or willingness of the Ford Foundation 
or the NAACP Legal Defense and Educational Fund, Inc. to provide this 
contractual benefit, unless I first obtain a written waiver, pursuant 
to 18 U.S.C. 208(b)(1), or qualify for a regulatory exemption, pursuant 
to 18 U.S.C. 208(b)(2).
     My spouse is President and CEO of MBD Housing Corporation. 
I will not participate personally and substantially in any particular 
matter involving particular parties in which MBD Housing Corporation is 
a party or represents a party, unless I am first authorized to 
participate, pursuant to 5 CFR 2635.502(d).
     I understand that as an appointee I am required to sign 
the Ethics Pledge (Exec. Order No. 13490) and that I will be bound by 
the requirements and restrictions therein. Accordingly, I will not for 
a period of 2 years from the date of my appointment participate in any 
particular matter involving specific parties that is directly and 
substantially related to my former employer or former clients, 
including regulations and contracts.

    If confirmed, I will work with the EEOC designated agency ethics 
official to implement the restrictions outlined in my ethics agreement 
and the Ethics Pledge. Should any other questions arise, I will seek 
advice with the EEOC's ethics official.

    Question 3. In Part II, page 1, under the Financial Statement 
section of the committee application, you indicate under accounts and 
bills due a total of $9,072.25. Could you please clarify the nature of 
this liability?
    Answer 3. At the time I submitted the committee application, 
$9,072.25 was the total outstanding balance for three credit cards 
issued in my name.

    Question 4. In Part II, page 1, under the Financial Statement 
section of the committee application, you indicate you and your husband 
owning a Mutual of America Mid Cap Equity Index Fund; Calvert Social 
Balanced Fund; Vanguard VIF International Fund; Fidelity VIP Equity-Inc 
Port-Init; and ING Legg Mason PRTNS Aggr Gr-Init; however, these 
entities are not listed in your completed SF-278 filed with the Office 
of Government Ethics. Can you please clarify this discrepancy?
    Answer 4. I included these assets on my committee application 
because the application requires all retirement plan accounts and 
investments to be reported, regardless of the amount. However, I did 
not include the five items listed in Question 4 in my SF-278 because 
they fell below the reporting threshold for Schedule A of SF-278. When 
my SF-278 was completed, my husband's investments in these funds did 
not have ``a fair market value exceeding $1,000'' nor did they 
``generate[ ] more than $200 in income.'' The EEOC's ethics officer, 
whom I consulted before submitting the SF-278, confirmed that these 
items should be omitted from my SF-278.

    Question 5. In your letter to the Designated Ethics Officer, you 
state that you will not participate personally and substantially in any 
particular matter involving specific parties in which your former 
employer is a party or represents a party and certain other 
organizations and entities you were affiliated with for a 1-year period 
unless you first receive a written waiver pursuant to Federal 
regulations. On January 21, 2009, President Obama signed Executive 
Order 13490, ``Ethics Commitments by Executive Branch Personnel'' that 
requires a separate 2-year recusal for any ``particular matter 
involving specific parties that is directly and substantially related 
to my former employer or former clients, including regulations and 
contracts.'' Please explain the process you will implement for ensuring 
both recusals are effective. Please also explain any impact that these 
requirements may have on your ability to fulfill duties, including 
whether any recusals involve entities that could appear before you in 
the position you are nominated for and/or if the entities have existing 
or potential involvement with the agency you are nominated to.
    Answer 5. The Equal Employment Opportunity Commission's designated 
agency ethics official has reviewed my affiliations with my employer, 
and clients, and determined that any potential conflict of interest 
would be adequately addressed by the terms of my ethics agreement.
    As I stated in the attachment to Part I of the questionnaire that I 
submitted to the Health, Education, Labor, and Pensions Committee in 
July, as well as in the ethics agreement developed in consultation with 
the EEOC's designated agency ethics officials, if confirmed by the 
Senate, I would take the following steps to resolve potential conflicts 
of interest:

     Upon confirmation, I will resign my positions as Associate 
Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc., 
Trustee of Oberlin College, Oberlin, OH, Advisory Board member of the 
Philanthropic Initiative on Racial Equity (a project of the Tides 
Foundation) Washington, DC and Adjunct Professor of Law at New York Law 
School. Pursuant to 5 CFR 2635.502, I will not participate personally 
and substantially in any particular matter involving specific parties 
in which any of these entities is a party or represents a party for a 
period of 1 year after my resignation from each of those organizations 
unless I am authorized to participate, pursuant to 5 CFR 2635.502(d).
     I will not participate personally and substantially in any 
particular matter involving specific parties in which a former client 
of mine is a party or represents a party, for a period of 1 year after 
I last provided service to that client, unless I am first authorized to 
participate, pursuant to 5 CFR  2635.502(d).
     I will continue to participate in the defined benefit 
pension plans of the Ford Foundation and the NAACP Legal Defense and 
Educational Fund, Inc. and, consequently, for as long as I continue to 
participate in those plans, I will not participate personally and 
substantially in any particular matter that has a direct and 
predictable effect on the ability or willingness of the Ford Foundation 
or the NAACP Legal Defense and Educational Fund, Inc. to provide this 
contractual benefit, unless I first obtain a written waiver, pursuant 
to 18 U.S.C. 208(b)(1), or qualify for a regulatory exemption, pursuant 
to 18 U.S.C. 208(b)(2).
     My spouse is President and CEO of MBD Housing Corporation. 
I will not participate personally and substantially in any particular 
matter involving particular parties in which MBD Housing Corporation is 
a party or represents a party, unless I am first authorized to 
participate, pursuant to 5 CFR 2635.502(d).
     I understand that as an appointee I am required to sign 
the Ethics Pledge (Exec. Order No. 13490) and that I will be bound by 
the requirements and restrictions therein. Accordingly, I will not for 
a period of 2 years from the date of my appointment participate in any 
particular matter involving specific parties that is directly and 
substantially related to my former employer or former clients, 
including regulations and contracts.

    If confirmed, I will work with the EEOC designated agency ethics 
official to implement the restrictions outlined in my ethics agreement 
and the Ethics Pledge. Should any other questions arise, I will seek 
advice with the EEOC's ethics official.

    Question 6. Do you understand that it is your continuing 
responsibility to supplement these and all other responses if you 
subsequently determine that they are not complete?
    Answer 6. Yes.

    Question 7. One reason we pass a considerable amount of legislation 
through this committee by unanimous consent is because of the good 
working relationship between the majority and minority, both Senators 
and our staff. If confirmed, will you pledge to cooperate in this type 
of a working relationship with all Senators on this committee--Democrat 
or Republican--by promptly responding to any written or phone 
inquiries, sharing information as soon as it becomes available and 
directing your staff to do the same?
    Answer 7. Yes.

    Question 8. Have taxes always been paid on time, including Federal, 
State and local taxes, property taxes, business taxes and/or sales and 
use taxes, as well as taxes paid on behalf of any employees?
    Answer 8. Yes, with the following exception. As explained in Part 
II of my committee application, after graduating from law school in 
1986, my husband and I were beneficiaries of Harvard Law School's ``Low 
Income Protection Plan'' because I was working in public interest law. 
As part of this plan, we received taxable income from Harvard. We 
regularly paid New York State tax on this income under an installment 
plan. In 1992 and 1993, we were unable to keep up with the installment 
plan and fell behind. As a result, New York imposed three tax liens 
totaling approximately $6,000. Each lien was satisfied in 6 months or 
less, and the last one was paid off in June 1993.
      Response to Questions of Senator Enzi by Jacqueline Berrien
    Question 1. At present, Commissioners may be given as few as 3 days 
to review and determine whether briefs should be filed on behalf of the 
EEOC in cases before the Supreme Court and other appellate courts. 
Would you be willing to expand the 3-day review period so that 
Commissioners, particularly minority party Commissioners, would have 
sufficient time to review and study the briefs and legal issues before 
deciding whether the EEOC should take an official position? Are there 
other steps that can be taken to ensure full and fair participation by 
minority party Commissioners?
    Answer 1. I recognize that the EEOC has been a bipartisan body 
since its creation, and if confirmed as Chair I would strive to foster 
a collegial, respectful working environment for every member of the 
Commission, without regard to party affiliation. I am not privy to the 
Commission's current practices concerning the number of days allotted 
for review and approval of draft appellate briefs. If confirmed, I will 
review the existing practices and procedures for Commission review and 
approval of appellate filings, solicit input from the other 
Commissioners and the General Counsel of the EEOC, and consider 
proposals to modify existing procedures to facilitate full and fair 
participation by all Commissioners, including those representing the 
minority party.

    Question 2. What is your view of the EEOC field restructuring plan 
which was undertaken in 2006? Will you maintain the new offices which 
opened? Do you have any plans to reopen offices which were closed?
    Answer 2. If confirmed as Chair, I will be very attentive to the 
concerns of the members of this committee and give serious 
consideration to all matters that touch on the quality of service 
provided by the EEOC and the ability of members of the public to take 
advantage of the EEOC's resources and programs. In light of the limited 
information available to me as a nominee concerning the impact of the 
2006 field restructuring plan, I am not yet able to fully assess its 
impact on EEOC services and therefore, I am unable to determine the 
potential need to change the status of any existing EEOC office. 
However, I have been advised by current EEOC staff members that while 
eight offices were downgraded, no offices were closed as a result of 
the 2006 restructuring.

    Question 3. The EEOC has struggled with significant backlogs at 
various times throughout its history. According to some reports, over 
12 percent of charges have been pending for 540 days or longer. What 
structural changes can be made to resolve this recurring issue 
permanently?
    Answer 3. As I testified during the November 19, 2009, hearing of 
the Senate Committee on Health, Education, Labor, and Pensions 
concerning my nomination, I understand that members of the public 
seeking assistance from the EEOC are impacted by charge processing 
backlogs. Therefore, if confirmed by the Senate, I would give this 
issue focused attention early in my tenure. Unfortunately, though, as 
the members of this committee are aware, this problem is not 
unprecedented in the EEOC's history. The Government Accountability 
Office, and its predecessor, the Government Accounting Office, have 
studied this issue repeatedly. See, for example, Statement of Linda G. 
Morra, Director, Education and Employment Issues, Health, Education, 
and Human Services Division of the U.S. General Accounting Office. 
``EEOC Burgeoning Workload Calls for New Approaches,'' Testimony before 
the U.S. Senate Committee on Labor and Human Resources (May 23, 1995); 
Statement of Michael Brostek, Associate Director, Federal Management 
and Workforce Issues, General Government Division of the U.S. General 
Accounting Office, ``Equal Employment Opportunity: Discrimination 
Complaint Caseloads and Underlying Causes Require EEOC's Sustained 
Attention,'' Testimony before the Subcommittee on Civil Service of the 
U.S. House of Representatives Committee on Government Reform (March 29, 
2000); U.S. Government Accountability Office, ``Equal Employment 
Opportunity Commission: Sharing Promising Practices and Fully 
Implementing Strategic Human Capital Planning Can Improve Management of 
Growing Workload,'' Report to the Chairman, Subcommittee on Commerce, 
Justice, Science and Related Agencies, Committee on Appropriations, 
U.S. Senate, Report No. GAO-08-589 (June 2008).
    If confirmed, I will review all GAO reports and congressional 
hearing records concerning the causes of, and potential responses to 
charge processing backlogs at the EEOC. It will also be critical to 
thoroughly analyze the relationship between staffing levels and the 
backlog, especially with the recent (and continuing) increase in the 
number of new charges of employment discrimination filed in the United 
States. In order to determine optimal staffing levels and charge 
processing times, it would be helpful to better understand the 
relationship between the dramatic decline in the number of full-time-
equivalent staff between 2000 and 2007 (approximately one-quarter of 
the workforce) and the growing number of charges filed with the EEOC.
    In conjunction with staff I would also explore whether State and 
local fair employment practice agencies (FEPAs) are being utilized to 
the maximum extent possible to reduce the backlog. Finally, as I 
testified on November 19, and consistent with the recommendation of the 
U.S. Government Accountability Office, I would work to strengthen 
systems for identifying ``best practices'' among EEOC offices. As the 
GAO recommended in its June 12, 2008, Briefing to Congressional Staff, 
the EEOC could benefit from ``identifying offices that ensure quality 
outcomes in a timely manner and evaluat[ing] and shar[ing] promising 
practices across the agency.'' Report to the Chairman, Subcommittee on 
Commerce, Justice, Science and Related Agencies, Committee on 
Appropriations, U.S. Senate, GAO-08-589 at 45.

    Question 4. Do you support the use of ``testers''--individuals paid 
by the EEOC to pretend to seek employment in the hopes of catching 
employers in an act of discrimination--to develop allegations of 
discrimination against employers? Given the sizeable backlog that EEOC 
currently has, is it appropriate to manufacture allegations when EEOC 
cannot process the claims of employees with actual grievances in a 
timely manner?
    Answer 4. I have been informed that the EEOC does not currently 
have any ``testers'' on its payroll, but that a State fair employment 
practice agency that contracts with the EEOC sponsors a small pilot 
project that employs testers. Before either ending or expanding the 
practice, I would thoroughly consider the views of Congress, study the 
EEOC's past practice concerning this issue, and solicit input from all 
Commissioners, the General Counsel, and external interested parties.

    Question 5. A Government Accountability Office Report (GAO) 
published this summer outlined a number of concerns about the fairness, 
promptness and impartiality of the EEO complaint process (GAO-09-712). 
Assuming you are familiar with this report in anticipation of your 
service, what is your evaluation of its findings and recommendations?
    Answer 5. I reviewed GAO Report 09-712 in preparation for the 
November 19, 2009 hearing. As you know, the report outlines some 
problems associated with, and potential improvements in, the system for 
processing discrimination charges filed by Federal Government employees 
(``Federal sector charges''). Publicly available information, such as 
GAO Report 09-712, is a very important part of the background 
information that I would consider before recommending or implementing 
major changes to existing EEOC charge processing systems. However, as a 
nominee, I am sensitive to the fact that there may be information 
available exclusively within the agency that could help me better 
understand current difficulties in the Federal sector charge processing 
system and potential avenues for reform of the system.

    Question 6. The Government Accountability Office's recent report 
(GAO-09-712) and others have questioned whether EEOC staff members 
receive enough training to gain the knowledge and skills necessary to 
perform their job effectively. What is your view of this issue? Do you 
have any plans to enhance or alter training of EEOC staff?
    Answer 6. I believe that the EEOC must have a well-trained, highly 
skilled staff in order to successfully execute its mission and meet 
high performance standards. To ensure that scarce agency resources are 
used effectively, the content and design of training programs should be 
closely tailored to reinforce or develop the skills that employees need 
in order to meet applicable performance standards. Therefore, I would 
first review available evaluations concerning the joint training 
conference for EEOC Administrative Judges and appellate attorneys 
conducted last July, to determine whether additional training (either 
for the participants in the July 2009 program or another group of EEOC 
employees, such as investigators) would be useful.

    Question 7. One solution proposed in the GAO report was to 
establish performance-based accountability measures to enhance 
timeliness and quality of investigations by agency staff. Would you 
support enhancing EEOC services in this manner? Are there any obstacles 
to implementing such a plan?
    Answer 7. I will give thorough consideration to policy or 
procedural changes suggested by Congress to improve the efficiency and 
effectiveness of the EEOC's operations. I understand that the current 
civil service compensation and evaluation systems incorporate some 
performance-based accountability measures, such as allowing award of 
incentive pay and other forms of recognition to high-performing 
employees. If confirmed, I look forward to working with staff to 
identify ways to maximize the contribution to mission and improve the 
performance of individual employees, with the ultimate goal of 
strengthening agency performance overall. Finally, as I testified to 
this committee, if confirmed I intend to be very attentive to the 
concerns of Congress and give special consideration to matters that 
touch on the quality of service provided by the EEOC.

    Question 8. Some equal employment opportunity (EEO) practitioners 
involved with the Federal EEO complaint process have proposed 
transferring the investigation responsibility to EEOC rather than the 
Federal agencies from which the complaint arises. Do you favor this 
proposal and would you implement it?
    Answer 8. Published reports concerning the processing of 
discrimination charges filed by Federal Government employees have 
suggested a transfer of responsibility from agency EEO offices to the 
EEOC for two primary reasons: (1) to avoid the potential conflict of 
interest when a discrimination complaint is investigated by an employee 
who interacts with, and perhaps reports to, persons responsible for 
defending the agency against the discrimination claim; and (2) to 
expedite charge processing. I understand that the EEOC has been 
examining the issue of inappropriate interaction between agency defense 
counsel and the agency EEO officer investigating a charge of 
discrimination, and, if confirmed, I would work to ensure that any 
policy changes adequately resolve the conflict of interest issues 
identified by many observers and stakeholders. If Congress determined 
that this change would improve enforcement of existing Federal laws 
prohibiting employment discrimination, as Chair I would of course be 
responsible for implementing the new law. However, in light of the 
existing (and recurring) backlog of private sector charges, I believe 
that the EEOC's ability to shorten the amount of time required for 
resolution of Federal sector charges would depend upon increased 
funding to ensure that there are adequate resources to carry out this 
substantial, new responsibility.

    Question 9. All too often Federal agencies have found that their 
actions have unintended consequences on U.S. industries and workers 
that could have been discovered had the action been more completely 
vetted. The Administrative Procedures Act is intended to address this, 
but it does not cover all agency action. Will you commit to consult 
with all stakeholders for each particular issue when the Commission is 
considering regulatory or other action?
    Answer 9. Yes, if confirmed, I will work in conjunction with the 
other Commissioners, General Counsel and agency staff to ensure that 
the Administrative Procedure Act's requirement of notice and 
opportunity for public comment is complied with fully before specified 
regulatory actions are taken. More broadly, as I testified on November 
19, I believe that efforts to prevent discrimination before it occurs 
are an important component of the EEOC's work. In my view, regular and 
open communication with stakeholders heightens public awareness of the 
requirements of the law and helps to ensure that the business 
community, workers, advocacy groups, labor organizations, and other 
interested parties have a common understanding of the law's 
requirements and measures that can be taken to prevent violation of the 
law in the first instance.

    Question 10. As a former small businessman, I know how difficult it 
can be to navigate the bureaucratic maze of Federal agencies and 
regulations. Small businesses create 80 percent of our Nation's net new 
jobs and, in turbulent economic times such as these, I believe we 
should be doing everything in our power to make sure they can stay in 
business. Please outline what EEOC practices and policies you plan to 
maintain, enhance or create to assist small businesses?
    Answer 10. If confirmed, I look forward to working with you and 
other members of the committee to ensure that the EEOC provides 
effective service to all stakeholders, including small business owners 
across the United States. I welcome your suggestions concerning 
improvements in the EEOC's outreach to small business owners and look 
forward to working with you, representatives of the business community 
and other interested parties to address the concerns that you have 
raised here and during the November 19 hearing.
    I understand that the EEOC has already taken several steps to 
address the very important issue of outreach and assistance to small 
business owners. First, the EEOC launched a Small Business Initiative 
in 1999 in an effort to ``improve relations between EEOC and small 
business.'' Every EEOC district office has a Small Business Liaison, 
and their names, telephone numbers and e-mail addresses are published 
in the agency's Web site (www.eeoc.gov). In addition, the ``Small 
Business Information'' page of the EEOC's Web site states that every 
EEOC field office has developed a regional small business outreach 
plan. Second, the EEOC was cited favorably in the latest Report to 
Congress by the National Ombudsman of the U.S. Small Business 
Administration (SBA), who is charged with ``ensur[ing] a fair and 
effective regulatory environment that works for both small businesses 
and Federal agencies.'' National Ombudsman's 2008 Report to Congress at 
xi. The EEOC received an ``A'' grade on every performance measure 
included in the SBA report. Id. at 17. The report also noted the EEOC's 
outreach efforts, specifically agency employees' participation in 
events sponsored by the Office of the National Ombudsman, which 
facilitated face-to-face contact with small business owners and 
provided an important forum for education about the EEOC and the laws 
that it enforces. Id. at 14.

    Question 11. What is your view of the responsibility of the EEOC 
District offices in the conciliation process? Are the appropriate 
parties being consistently involved in the process? Does EEOC 
management at all levels provide enough support to the conciliation 
process?
    Answer 11. As a nominee, I do not have access to the information 
necessary to respond fully to this question. However, if confirmed, I 
commit to carefully examine the efficacy and quality of the EEOC's 
conciliation efforts across the country, and to work with you and your 
staff to identify areas which may require additional attention or 
support.

    Question 12. Will you pledge that you will work to ensure that EEOC 
will vigorously support resolving charges through mediation, settlement 
and conciliation?
    Answer 12. The Federal employment discrimination laws enacted by 
Congress and the enforcement system prescribed by the statutes which 
the EEOC is charged with enforcing all to encourage voluntary 
resolution of meritorious discrimination claims wherever possible. 
Consequently, mediation, conciliation, and other out-of-court 
settlement efforts are all authorized by existing law and agency 
procedures and are appropriately recognized as consistent with the 
legislative preference for voluntary compliance with the law. 
Consistent with controlling judicial decisions and the express intent 
of Congress, I will support efforts to resolve charges through 
conciliation and other mutually agreeable means that protect the rights 
of all parties and fulfill statutory purposes.

    Question 13. The EEOC was charged with finalizing regulations under 
the Genetic Information Non-Discrimination Act (GINA) by May of this 
year, 1 year after enactment, but has missed this deadline. The law's 
mandatory compliance date is 18 months after enactment, which also 
happens to be the same week the HELP Committee held your confirmation 
hearing. Do you believe it is fair to require employers to comply with 
this statute when EEOC has not yet provided final regulatory guidance? 
What sort of standards should employers be held to in the absence of 
regulatory guidance?
    Answer 13. I understand that the proposed rule to implement the 
Genetic Information Non-Discrimination Act (GINA) is pending with the 
Office of Management and Budget and was submitted within the period 
authorized by the statute. However, I share your overall concern that 
employers and other interested parties receive sufficient notice 
concerning the impact of anti-discrimination laws passed by Congress, 
and if confirmed, will work with you to ensure that necessary 
implementing regulations are in place as soon as possible.

    Question 14. Do you believe that an employer's use of credit or 
criminal background checks in hiring is or can be discriminatory? 
Please explain why or why not.
    Answer 14. Title VII of the Civil Rights Act of 1964 prohibits a 
facially neutral employment practice that has a racially disparate 
adverse impact and is not demonstrably job-related and necessary for 
the conduct of the business at issue. The law does not specifically 
exclude the practices described above from title VII. However, several 
Federal courts have decided that the ``disparate impact'' standard of 
title VII should be used to evaluate employer policies concerning the 
use of criminal record checks in the hiring process. See, for example, 
El v. SEPTA, 479 F. 3d 232 (3d Cir. 2006). The EEOC has reached a 
similar conclusion on two prior occasions, as outlined in its ``Policy 
Statement on the Use of Statistics in Charges Involving the Exclusion 
of Individuals with Conviction Records from Employment,'' dated July 
29, 1987, and its ``Policy Guidance on the Consideration of Arrest 
Records in Employment Decisions under Title VII of the Civil Rights Act 
of 1964,'' dated September 7, 1990. I understand that the Commission 
conducted a meeting on November 20, 2008, concerning ``Employment 
Discrimination Faced by Individuals with Arrest and Conviction 
Records,'' which began its reconsideration of the earlier Commission 
policies concerning employers' use of criminal background checks in 
hiring. If confirmed, I welcome the opportunity to consider these 
issues more thoroughly and solicit input from a broad cross-section of 
stakeholders concerning these practices and the application of existing 
law to them.

    Question 15. I have been told that funding for EEOC's outside 
mediators has been decreased over the last several years and that this 
has been a particularly acute problem in more rural/suburban areas. As 
a Senator representing one of many more rural States, this concerns me. 
Do you agree EEOC has a duty to ensure its services are available 
nationally?
    Answer 15. Yes, and if confirmed, I look forward to learning more 
about these issues from you and working with you to ensure that your 
constituents and residents of the entire country are served effectively 
by the EEOC.
    Response to Questions of Senator Alexander by Jacqueline Berrien
    Question 1. In the 110th Congress I introduced language that would 
bar the EEOC from filing lawsuits against employers that require their 
employees to speak English while engaged in work. This language gained 
bipartisan support in the U.S. Senate, as well as the U.S. House of 
Representatives. My interest stemmed from a March 2007 case in which 
the EEOC sued the Salvation Army for allegedly discriminating against 
two of the Army's employees in a Boston-area thrift store by requiring 
them to speak English on the job. This case was ultimately settled. 
Given the current backlog of more egregious cases at the EEOC, what 
priority would you provide to these cases?
    Answer 1. I recognize and share the concern expressed by members of 
this committee that the EEOC's charge processing backlog may negatively 
impact people who have been discriminated against on the basis of race, 
color, national origin, religion, sex, pregnancy, age, disability, 
illegal use of genetic information and/or in retaliation for exercising 
rights protected by Federal laws prohibiting employment discrimination 
on these grounds. I, therefore, expect to give focused attention to the 
backlog issue early in my tenure if confirmed. I was not involved in 
the litigation against the Salvation Army described in the above 
question, and therefore am not aware of the specific strategies 
employed in that case by the EEOC. However, if confirmed, I would 
evaluate requests to file new cases on the basis of the facts of the 
specific case and application of controlling law to those facts.

    Question 2. Employers argue safety and morale as the rationale for 
requiring English in the work place, do you believe it is appropriate 
for employers to do so? Is it discriminatory for employers to require 
employees to speak English in the workplace?
    Answer 2. ``English only'' policies are not illegal per se. In a 
case alleging disparate treatment of an employee or group of employees 
on any basis prohibited by title VII, existing law would not prohibit 
an employer from requiring employees to speak English in the workplace 
if that policy is adopted for reasons that are not a pretext for 
unlawful discrimination. However, as I testified at my confirmation 
hearing, I am generally aware that some courts have concluded that 
specific workplace rules concerning English usage violated title VII's 
prohibition against discrimination on the basis of national origin.

    Question 3. Under what circumstances would it be appropriate for 
the EEOC to pursue such a suit?
    Answer 3. If confirmed, I would evaluate a request for EEOC 
involvement in a case on the basis of the facts of the specific case 
and application of controlling law to those facts. I cannot determine, 
before a specific case is presented, whether I would support or oppose 
EEOC involvement in that case.
   Responses to Questions of Senator Coburn by Jacqueline A. Berrien
    Question 1. Thank you for listing the three management positions 
you've held as was requested. Please also list the budget amounts and 
number of personnel managed for each position.
    Answer 1. I am currently employed as the Associate Director-Counsel 
of the NAACP Legal Defense and Educational Fund, Inc., a tax-exempt 
charitable organization. I report directly to the President and 
Director-Counsel of the organization, and assist with overall 
management of the organization's legal advocacy and scholarship 
programs. During my tenure in this position, LDF's paid staff has 
ranged from 50 to 74 employees. The Legal Defense Fund's current staff 
size is 69 employees. The total revenue and expenses for the Legal 
Defense Fund (as reported on Form 990) for the fiscal years in which I 
have served as Associate Director-Counsel were:

------------------------------------------------------------------------
                                          Total  Revenue       Total
                  Year                          ($)        Expenses ($)
------------------------------------------------------------------------
2004....................................      12,812,068      11,886,539
2005....................................      12,032,309      12,607,736
2006....................................      10,524,106       9,465,598
2007....................................      12,806,294      11,201,970
------------------------------------------------------------------------

    I was employed by the Ford Foundation from November 2001 through 
August 2004, and administered grants totaling approximately $13 million 
during that period. As a program officer with the Ford Foundation, I 
managed a grant-making team comprised of a grant administrator, a 
program associate, and an administrative assistant.
    As Assistant Counsel and Director of the Voting Rights and 
Political Participation docket for the NAACP Legal Defense and 
Educational Fund, Inc. (September 1994 to November 2001), I supervised 
three attorneys, an administrative assistant, a paralegal, and a 
variable number of legal interns (generally 2-4 per academic term). 
Responsibility for financial management of legal program activities was 
shared by the organization's President and Director-Counsel, Associate 
Director-Counsel, Director of Litigation and Chief Financial Officer.

    Question 2. In your response to my followup question regarding the 
First Amendment's Free Exercise Clause, you said you will follow U.S. 
Supreme Court precedent and controlling Federal circuit law. What 
weight, if any, will you give to the legislative history behind the 
Free Exercise Clause?
    Answer 2. If confirmed, I would adhere to the precedents of the 
U.S. Supreme Court or controlling Federal court of appeals, as 
applicable, concerning the weight to be accorded to legislative 
history, and every other matter concerning interpretation of the Free 
Exercise Clause of the First Amendment.
     Response to Questions of Senator Coburn by Jacqueline Berrien 
                           and Chai Feldblum
                  jacqueline berrien and chai feldblum
    Question 1. In your responses to my previous question regarding 
your policy priorities, you both focused on the enforcement duties of 
EEOC. As you know, the EEOC does more than enforcement, and as Chair 
and Commissioner you will have various opportunities to shape national 
discrimination protection policy. Related to those policy-related 
functions of the Commission, please explain any policy priorities you 
have considered or have interest in developing?
    Answer 1. The EEOC is charged with eliminating unlawful 
discrimination in the workplace. Given the breadth of the EEOC's 
enforcement responsibility and the many competing demands for the 
agency's scarce resources, if confirmed I plan to consult with 
representatives of stakeholder communities, in addition to agency 
staff, before setting priorities for the agency. I recognize, however, 
that there are time-sensitive issues confronting the EEOC. For example, 
the agency must provide timely guidance to the public concerning two 
recently enacted pieces of legislation, the Genetic Information Non-
Discrimination Act and the ADAAA. In addition, the demand for 
assistance from the EEOC has increased in recent years (as reflected in 
the number of new charges filed), and if confirmed, I would carefully 
review data concerning current demand for services, with the goal of 
determining whether enforcement resources are adequate to meet current 
needs or need to be reallocated.
                           jacqueline berrien
    Question 1. In your response to my questions regarding your 
management experience as it relates to the daunting challenges facing 
EEOC, you highlighted various management experiences. Please list the 
top three management positions you have held related to the largest 
budgets you have overseen and the most number of employees you have 
managed.
    Answer 1. The three management positions I have held with the 
largest budgets and highest number of employees have been:

    1. Associate Director-Counsel, NAACP Legal Defense and Educational 
Fund, Inc.
    2. Program Officer, the Ford Foundation
    3. Director of Voting Rights and Political Participation Docket, 
NAACP Legal Defense and Educational Fund, Inc.

    As noted in my earlier response, I also acquired relevant skills 
through management of complex Federal litigation in connection with my 
employment with the NAACP Legal Defense and Educational Fund, the 
Lawyers' Committee for Civil Rights Under Law, and the American Civil 
Liberties Union.

    Question 2. In your response to my question regarding your ideas on 
how to reduce the backlog, you responded by saying you will give 
``focused attention'' to the issue, will ``solicit feedback'' from 
career staff, and are reviewing various public documents related to the 
issue. Other than these measures and your interest in exploring whether 
State/local agencies can be of assistance, please lay-out any tangible 
ideas or plans you have on how to address the backlog while still 
maintaining quality.
    Answer 2. If confirmed, addressing backlogs would be a priority for 
me. As I noted in my hearing testimony and in response to written 
questions from Senator Enzi, there are several steps I plan to take to 
address this issue.
    First, if confirmed, I will review all GAO reports and 
congressional hearing records concerning the causes of, and potential 
responses to charge processing backlogs at the EEOC. It will also be 
critical to thoroughly analyze the relationship between staffing levels 
and the backlog, especially with the recent (and continuing) increase 
in the number of new charges of employment discrimination filed in the 
United States. In order to determine optimal staffing levels and charge 
processing times, it would be helpful to better understand the 
relationship between the dramatic decline in the number of full-time-
equivalent staff between 2000 and 2007 (approximately one-quarter of 
the workforce) and the growing number of charges filed with the EEOC.
    Second, in conjunction with staff I would also explore whether 
State and local fair employment practice agencies (FEPAs) are being 
utilized to the maximum extent possible to reduce the backlog. Finally, 
as I testified on November 19, and consistent with the recommendation 
of the U.S. Government Accountability Office, I would work to 
strengthen systems for identifying ``best practices'' among EEOC 
offices. As the GAO recommended in its June 12, 2008, Briefing to 
Congressional Staff, the EEOC could benefit from ``identifying offices 
that ensure quality outcomes in a timely manner and evaluat[ing] and 
shar[ing] promising practices across the agency.'' Report to the 
Chairman, Subcommittee on Commerce, Justice, Science and Related 
Agencies, Committee on Appropriations, U.S. Senate, GAO-08-589 at 45. I 
am also prepared to look for examples elsewhere in government for 
successful backlog reduction strategies.
    As I testified during the November 19, 2009, hearing, the reasons 
for the current backlog are complex. However, one potential cause is 
that the resources at the EEOC have declined significantly while the 
number of charges has increased.
    Finally, as with every matter related to the quality of service 
rendered to the public by EEOC employees, if confirmed I look forward 
to working with you and the other members of this committee to address 
concerns about the charge processing backlog.

    Question 3. In your response to my question regarding the First 
Amendment's free exercise clause, you stated that you were not aware of 
any court decisions that apply to this set of facts. Bearing that in 
mind, what legal and policy considerations would guide you in analyzing 
how to dispose of this conflict between an employee's First Amendment 
liberty and an employer's employment-related objectives.
    Answer 3. The U.S. Supreme Court interprets provisions of the U.S. 
Constitution, including the First Amendment, and if confirmed, I would 
apply controlling Supreme Court precedents interpreting the Free 
Exercise clause. If confirmed, I will also apply the laws that Congress 
has passed to outlaw discrimination in the workplace, as they have been 
interpreted by the U.S. Supreme Court. If the Supreme Court has not 
addressed the issue presented in the charge, the decisions of the 
geographically relevant Federal Court of Appeals would be controlling.

    Question 4. In the hearing you mentioned sexual harassment/
discrimination claims are the largest part of the docket. Do you have 
any ideas on how to address this growing number of charges and do you 
have any thoughts on whether such claims need special priority in some 
way?
    Answer 4. As I testified at the November 19 hearing, based on the 
latest statistics from the EEOC, sex discrimination and sex harassment 
cases make up the largest part of the litigation docket. Additionally, 
the recent passage of the Lilly Ledbetter Fair Pay Act has raised 
awareness of the problem of women who are paid less than men for doing 
identical work. The EEOC must continue to work vigorously to address 
sex discrimination and sexual harassment. If confirmed, I would work 
with the General Counsel and other headquarters and regional staff to 
determine if the resources devoted to these issues are being used in 
the most effective manner.
      Response to Questions of the HELP Committee by Chai Feldblum
    Question 1. According to your completed Office of Government Ethics 
SF-278, you have been a consultant with Columbia University; however, 
this information is not listed in Part I, page 2 under the Employment 
Record section of the committee application. Are you currently employed 
by Columbia University? If so, do you foresee your employment with the 
Columbia University as an inherent or perceived conflict of interest? 
If so, could you please indicate to the committee exactly which steps 
you would take to resolve any potential or perceived conflicts, 
including recusal?
    Answer 1. I have never been employed by Columbia University. The 
listing on my SF-278 cited above refers to the following: In January 
2009, I reviewed three articles written by Professor Elizabeth Emens of 
Columbia Law School, and I wrote a letter analyzing the merits of those 
articles for purposes of Columbia's tenure review process for Professor 
Emens. In return for that work, I received an honorarium of $500. Law 
professors often perform such work to assist law schools in their 
tenure processes.

    Question 2. In Part I, page 5, question 5 of the committee 
application, under the Potential Conflicts of Interest section, you 
stated that should a conflict arise you would resolve the matter in 
accordance with the terms of an ethics agreement in which you entered 
with the EEOC's designated ethics official. Could you please clarify to 
the committee what steps exactly you would take to resolve a potential 
conflict of interest?
    Answer 2. In accordance with the ethics agreement that I entered 
into with the EEOC's designated ethics official, I will do the 
following:
    As required by 18 U.S.C. 208(a), I will not participate personally 
and substantially in any particular matter that has a direct and 
predictable effect on my financial interests or those of any other 
person whose interests are imputed to me, unless I first obtain a 
written waiver, pursuant to 18 U.S.C. 208(b)(1), or qualify for a 
regulatory exemption, pursuant to 18 U.S.C. 208(b)(2). I understand 
that the financial interests of the following are imputed to me: any 
spouse or minor child of mine; any general partner of a partnership in 
which I am a limited or general partner; any organization in which I 
serve as officer, director, trustee, general partner or employee; and 
any person or organization with which I am negotiating or have an 
arrangement concerning prospective employment.
    Upon confirmation, I will take an unpaid leave of absence from my 
position as Professor of Law at Georgetown University Law Center. I 
will not participate personally and substantially in any particular 
matter that has a direct and predictable effect on the financial 
interests of Georgetown Law Center, unless I first obtain a written 
waiver, pursuant to 18 U.S.C. 208(b)(1), or qualify for either the 
exemption at 5 CFR 2640.203(b) or another regulatory exemption, 
pursuant to 18 U.S.C. 208(b)(2).
    Upon confirmation, I will resign my positions as Director of 
Georgetown University Law Center's Federal Legislation & Administrative 
Clinic, Co-Director of Georgetown University's Workplace Flexibility 
2010 Initiative and Project Director of the Clinic's grant from the 
Alfred P. Sloan Foundation. For a 1-year period after my resignation 
from each of those organizations, I will not participate personally and 
substantially in any particular matter involving specific parties in 
which the Federal Legislation & Administrative Law Clinic, the 
Workplace Flexibility 2010 Initiative or the Alfred P. Sloan Foundation 
is a party or represents a party unless I am authorized to participate, 
pursuant to 5 CFR 2635.502(d).
    In addition, I will not participate personally and substantially in 
any particular matter involving specific parties in which the Epilepsy 
Foundation (client of the Georgetown University Law Center's Federal 
Legislation & Administrative Clinic) is a party or represents a party, 
for a period of 1 year after I, as Director of the Clinic, last 
provided service to that client, unless I am first authorized to 
participate, pursuant to 5 CFR  2635.502(d).
    As co-author of ``Law Making: An Introduction to Statutory and 
Regulatory Interpretation,'' I am entitled to receive royalties from 
Aspen Publications, Inc. I will not participate personally and 
substantially in any particular matter that has a direct and 
predictable effect on the ability or willingness of Aspen Publications, 
Inc. to honor its contractual obligations regarding these royalties, 
unless I first obtain a written waiver, pursuant to 18 U.S.C. 
208(b)(1).
    If confirmed, I will work with EEOC's designated agency ethics 
official to establish an effective screening mechanism to implement 
these commitments.

    Question 3. In Part II, page 1, under the Financial Statement 
schedule 3 for the committee application, you state that you own 
property at 328 Munson Street, Rehoboth Beach, DE 19971, currently 
valued at $578,000, with a mortgage of $417,000; however, this property 
and the mortgage are not disclosed on your Office of Government Ethics 
SF-278. Do you currently own this property? If so, could you please 
clarify this discrepancy between your application and the SF-278 and 
disclose the terms of the mortgage in accord with the requirements of 
the SF-278? Is this property the source of the rental fees generated in 
2007 according to Schedule 8 of Part II of your committee application?
    Answer 3. I currently own property at 328 Munson Street in Rehoboth 
Beach, DE. I have a 30-year mortgage of $416,063 on that house with 
Wells Fargo, with a monthly payment of $2553.62. I live in that house 
over the summer, and I have never rented it. I was advised by the EEOC 
ethics counsel that because the house in Rehoboth is a second home that 
is never rented, I should not list it on the SF-278.

    Question 4. On your SF-278, you list a liability to Wells Fargo 
Home Mortgage in an amount between $500,001 and $1,000,000 for your 
Takoma Park, MD, residence. In Part II, Schedule 5 of the committee 
application, you list a mortgage in the amount of only $175,600 for 
this property. Could you please clarify this discrepancy between your 
application and the SF-278?
    Answer 4. On Schedule C of my SF-278, I mistakenly marked the 
category that corresponded to the full value of my residence in Takoma 
Park (approximately $570,000), rather than the mortgage balance 
($175,600). I have filed a correction to the SF-278.

    Question 5. According to your completed Office of Government Ethics 
SF-278, you list Assets and Income from rental fees from your 
residential property in Takoma Park, MD; however, this information does 
not appear to be listed in part II, page 2, under the Sources of Income 
section of the committee application. Can you please clarify this 
discrepancy to the committee?
    Answer 5. The reporting period for the HELP committee questionnaire 
was 2006, 2007, and 2008. During that period I received rental income, 
as reported on the questionnaire, only in 2006 and 2007. The reporting 
period for the SF-278 was 2008 and 2009. I received rental income in 
2009 that I reported on the SF-278. I did not receive any rental income 
in 2008.

    Question 6. The committee has been unable to locate copies of 
several publications that you listed on your committee application. Can 
you please provide copies of the publications listed in Attachment A?
    Answer 6. I have enclosed copies of all the publications requested.

    Question 7. In Part I of the committee application, you listed two 
forthcoming publications. Are you still working on these publications? 
When do you anticipate those publications will be issued? Are you being 
compensated for these items (outside of the potential royalties 
disclosed in your committee application for the co-
authored book) and if so how? If you are being compensated, do you 
foresee any conflict of interest with your nominated position? Could 
you please also provide the committee with a copy of the abstract or 
other appropriate short description of the Law Review article entitled 
``Gay rights, religion and fear: A call for moral discourse?''
    Answer 7. One of the forthcoming articles, ``Gay Rights, Religion 
and Fear: A Call for Moral Discourse'' has been completed and is 
attached. It is a short essay and is now titled ``Gay Rights, Religion 
and Fear: A Call for Informed Moral Discourse.'' I will receive no 
compensation for that article.
    The second forthcoming piece is a casebook for Aspen Publishing on 
statutory interpretation. Several co-authors are contributing to the 
casebook, and it is not yet complete. If I am confirmed, any remaining 
work on my sections of the casebook will be completed by other co-
authors.

    Question 8. In your letter to the Designated Ethics Officer, you 
state that you will not participate personally and substantially in any 
particular matter involving specific parties in which your former 
employer is a party or represents a party and certain other 
organizations and entities you were affiliated with for a 1-year period 
unless you first receive a written waiver pursuant to Federal 
regulations. On January 21, 2009, President Obama signed Executive 
Order 13490, ``Ethics Commitments by Executive Branch Personnel'' that 
requires a separate 2-year recusal for any ``particular matter 
involving specific parties that is directly and substantially related 
to my former employer or former clients, including regulations and 
contracts.'' Please explain the process you will implement for ensuring 
both recusals are effective. Please also explain any impact that these 
requirements may have on your ability to fulfill duties, including 
whether any recusals involve entities that could appear before you in 
the position you are nominated for and/or if the entities have existing 
or potential involvement with the agency you are nominated to.
    Answer 8. The Equal Employment Opportunity Commission's designated 
agency ethics official has reviewed my affiliations and determined that 
any potential conflict of interest would be adequately addressed by the 
terms of my ethics agreement.
    In accordance with my ethics agreement, upon confirmation, I will 
take an unpaid leave of absence from my position as Professor of Law at 
Georgetown University Law Center. I will not participate personally and 
substantially in any particular matter that has a direct and 
predictable effect on the financial interests of Georgetown Law Center, 
unless I first obtain a written waiver, pursuant to 18 U.S.C. 
208(b)(1), or qualify for either the exemption at 5 CFR 2640.203(b) or 
another regulatory exemption, pursuant to 18 U.S.C. 208(b)(2).
    Upon confirmation, I will resign my positions as Director of 
Georgetown University Law Center's Federal Legislation & Administrative 
Clinic, Co-Director of Georgetown University's Workplace Flexibility 
2010 Initiative and Project Director of the Clinic's grant from the 
Alfred P. Sloan Foundation. For a 1-year period after my resignation 
from each of those organizations, I will not participate personally and 
substantially in any particular matter involving specific parties in 
which the Federal Legislation & Administrative Law Clinic, the 
Workplace Flexibility 2010 Initiative or the Alfred P. Sloan Foundation 
is a party or represents a party unless I am authorized to participate, 
pursuant to 5 CFR 2635.502(d).
    In addition, I will not participate personally and substantially in 
any particular matter involving specific parties in which the Epilepsy 
Foundation (client of the Georgetown University Law Center's Federal 
Legislation & Administrative Clinic) is a party or represents a party, 
for a period of 1 year after I, as Director of the Clinic, last 
provided service to that client, unless I am first authorized to 
participate, pursuant to 5 CFR  2635.502(d).
    As co-author of ``Law Making: An Introduction to Statutory and 
Regulatory Interpretation,'' I am entitled to receive royalties from 
Aspen Publications, Inc. I will not participate personally and 
substantially in any particular matter that has a direct and 
predictable effect on the ability or willingness of Aspen Publications, 
Inc. to honor its contractual obligations regarding these royalties, 
unless I first obtain a written waiver, pursuant to 18 U.S.C. 
208(b)(1).
    I understand that as an appointee I am required to sign the Ethics 
Pledge (Exec. Order No. 13490) and that I will be bound by the 
requirements and restrictions therein. Accordingly, I will not for a 
period of 2 years from the date of my appointment participate in any 
particular matter involving specific parties that is directly and 
substantially related to my former employer or former clients, 
including regulations and contracts.
    If confirmed, I will work with the EEOC designated agency ethics 
official to implement the restrictions outlined in my ethics agreement 
and the Ethics Pledge. Should any other questions arise, I will seek 
advice with the EEOC's ethics official.

    Question 9. Do you understand that it is your continuing 
responsibility to supplement these and all other responses if you 
subsequently determine that they are not complete?
    Answer 9. Yes.

    Question 10. One reason we pass a considerable amount of 
legislation through this committee by unanimous consent is because of 
the good working relationship between the majority and minority, both 
Senators and our staff. If confirmed, will you pledge to cooperate in 
this type of a working relationship with all Senators on this 
committee, Democrat or Republican--by promptly responding to any 
written or phone inquiries, sharing information as soon as it becomes 
available--and directing your staff to do the same?
    Answer 10. Yes.

    Question 11. Have taxes always been paid on time, including 
Federal, State and local taxes, property taxes, business taxes and/or 
sales and use taxes, as well as taxes paid on behalf of any employees?
    Answer 11. I have always filed and paid my taxes on time, with the 
following exception. I filed amended returns for 2006 and 2007, because 
I inadvertently did not report rental income received from friends who 
had stayed at my Takoma Park home. For 2006, I paid an additional 
$1,373 in Federal tax and $460 in State tax. For 2007, I paid an 
additional $588 in Federal tax and $141 in State tax.
                      Attachment A: Publications*
    1. The Moral Values Project: A Call to Moral Action in Politics, in 
G. Babst, E. Gill and J. Pierceson (eds.), Moral Argument, Religion And 
Same Sex-Marriage: Advancing The Public Good, Rowman & Littlefield/
Lexington (2009).
---------------------------------------------------------------------------
    *  Note: The Moral Values Project: Deploying Moral Discourse for 
LGBT Equality, was a monograph prepared for the National Gay and 
Lesbian Task Force Foundation under contract in 2006 for an internal 
meeting. I have not been able to secure permission to release this 
document. The main points from that monograph have, however, been 
incorporated into my chapter, The Moral Values Project: A Call to Moral 
Action in Politics, which is the first publication attached.
---------------------------------------------------------------------------
    2. Policy Challenges and Opportunities for Workplace Flexibility: 
The State of Play in 2008, in A. Booth and A. Crouter (eds.), Work-Life 
Policy, Urban Institute Press (2009).
    3. LawMaking: A Case Study of the Family and Medical Leave Act 
(with Robin Appleberry), in The Work-Family Handbook: Multidisciplinary 
Perspectives, Methods And Approaches, edited Marcie Pitt-Catsouphes, 
Ellen Ernst Kossek and Stephen Sweet, Mahwah NJ: Lawrence Erlbaum 
(2006).
    4. HIV and AIDS Infection, One Nation Indivisible, Report of the 
Citizen's Commission on Civil Rights, April 1989.
    5. The Civil Rights Restoration Act of 1988: Covering AIDS and HIV 
Infection, ACLU AIDS Project, June 1988.
    6. The Fair Housing Amendments Act of 1988, ACLU AIDS Project, 
March 1989.
    7. Case Comment, Lynch v. Donnelly, 98 Harvard Law Review 174 
(1984).
    8. The Limitations of Liberal Neutrality Arguments in Favor of 
Same-Sex Marriage, Legal Recognition Of Same-Sex Partnerships: A Study 
of National, 
European And International Law 55 (Hart Publishing 2002).
    9. The Clinton Administration and the Americans with Disabilities 
Act, The Continuing Struggle: Civil Rights and The Clinton 
Administration, with Sharon Perley, Citizens' Commission on Civil 
Rights (C. Yu & N. Taylor eds. 1997).
    10. The Employment Non-Discrimination Act, New Challenges: The 
Civil Rights Record of The Clinton Administration, with Stephen Curran, 
Citizens' Commission on Civil Rights (C. Yu & W. Taylor eds. 1995).
    11. Antidiscrimination Requirements of the ADA, Implementing The 
Americans With Disabilities Act: Rights and Responsibilities of All 
Americans (L. Gostin & H. Beyer eds, 1992).
    12. Gay Rights, Religion and Fear: A Call for Informed Moral 
Discourse.
         Response to Questions of Senator Enzi by Chai Feldblum
    Question 1. You are well known for your advocacy of a number of 
employment discrimination laws that EEOC is charged or would be charged 
with enforcing. For example, your official biography for this 
nomination identifies your role in drafting the Americans with 
Disabilities Act and the ADA Amendments Act enacted last year, as well 
as drafting and negotiating early versions of the Employment Non-
Discrimination Act (ENDA). Having operated in the role of advocate for 
these laws for many years, how can the committee be sure that you would 
not continue that advocacy as a Commissioner? Would you attempt to 
achieve changes you did not achieve in legislative negotiations through 
rulemaking and other statutory interpretation?
    Answer 1. If confirmed, I would not attempt to achieve changes in 
any legislation through rulemaking and other statutory interpretation 
that were not achieved through legislative negotiations. I am acutely 
aware of the different role to be played by an advocate as compared to 
the responsibilities of a Commissioner of an independent agency. If 
confirmed, I will faithfully implement the laws as enacted by Congress 
and signed by the President.

    Question 2. Since you participated in drafting the Employment Non-
Discrimination Act (ENDA) and would be charged with enforcing it if you 
are confirmed and it is enacted, your views on some of the questions 
the bill has raised are extremely relevant. For example, in the absence 
of a specific employment protection for sexual orientation, some courts 
have interpreted title VII to provide such protection. If ENDA is 
enacted, is it your intention a successful plaintiff filing claims 
under both title VII and ENDA for the same alleged wrongful conduct 
could obtain a dual recovery? If not, why does ENDA contain a provision 
specifically providing that it does not invalidate or limit the rights, 
remedies, or procedures available under any other law or regulation? 
How are we to interpret this provision?
    Answer 2. If ENDA is enacted, I would be guided by the text of the 
law, as enacted by Congress and signed by the President. In addition, I 
would study the legislative history to determine if Congress had a 
specific intent on the issue of coverage under both title VII and ENDA. 
The EEOC would have the responsibility of carrying out that intent, as 
long as it is consistent with the text of the law.

    Question 3. The ENDA bill creates title VII-like employment 
protections for sexual orientation and sexual identity. As an expert 
witness testified in early November at a Health, Education, Labor, and 
Pensions Committee hearing on the bill, individuals protected under 
ENDA would actually have access to greater remedies than those 
protected under title VII by way of their race, color, religion, sex or 
national origin, or under the ADA by way of disability. Namely, ENDA 
claimants could recover attorney and other fees from administrative 
proceedings, including an EEOC determination. EEOC decisions are not 
considered ``final orders'' and so are not subject to appeal. 
Therefore, an employer would not be able to contest any such award and, 
in fact, the EEOC is not even required to provide reasons for its 
decisions. Do you believe that plaintiff 's alleging discrimination 
based on sexual orientation and sexual identity should be entitled to 
greater remedies than title VII and ADA plaintiffs? Why would it be 
appropriate to deprive employers of their due process rights to contest 
attorney's fees awards solely for plaintiff 's alleging discrimination 
based on sexual orientation and sexual identity?
    Answer 3. In general, I do not believe that individuals who 
experience discrimination on the basis of sexual orientation and gender 
identity should be entitled to greater remedies than those who 
experience discrimination on the basis of disability, race, sex, color, 
religion and national origin. Should I be confirmed, I would be bound 
by the laws enacted by Congress and signed by the President, including 
ENDA, if enacted.

    Question 4. In addition to prohibiting discrimination in employment 
on the basis of gender identity, ENDA places affirmative obligations on 
employers with regard to shared shower or dressing facilities in which 
being seen unclothed is unavoidable for individuals who have either 
``undergone'' or who are ``undergoing'' transition to a different 
gender. The bill text currently creates a number of questions about how 
this requirement would work. As one of the bill drafters who would also 
be charged with enforcing this law if you are confirmed, what are your 
views on how this would be implemented? In your view, what should be 
the level of special consideration for gender-transitioning employees--
privacy at work? Specifically, what would constitute ``notification'' 
that private dressing and shower facilities will be required? Would the 
requirement also extend to bathroom facilities? The bill states that no 
new facilities would be required, but does that also mean employers 
would not be required to renovate existing facilities?
    Answer 4. Questions regarding privacy and gender identity are very 
important. If confirmed to the EEOC, I will be guided by the text of 
the law, as enacted by Congress and signed by the President. In 
addition, I would look to the legislative history to see if Congress 
had a specific intent on these questions. As of this point in time, 
there is no committee report from either the House or Senate committees 
with jurisdiction over ENDA. There are several States and localities 
that have passed laws establishing non-discrimination protection based 
on gender identity, however, and the committees may be interested in 
studying those laws in order to provide guidance to the agency.

    Question 5. The EEOC has struggled with significant backlogs at 
various times throughout its history. According to some reports, over 
12 percent of charges have been pending for 540 days or longer. What 
structural changes can be made to resolve this recurring issue 
permanently?
    Answer 5. I agree with the comments made by EEOC Chair nominee 
Jacqueline Berrien at our confirmation hearing last week with regard to 
addressing the backlog situation. In particular, I agree with Ms. 
Berrien that we must always remember that backlogs are not simply 
numbers--they are real people and real employers who are being affected 
by the delays. If confirmed, I look forward to being educated by 
individuals inside the agency about the challenges in the current 
system. And if structural changes are appropriate, based on the data 
regarding the current system, I look forward to working with my fellow 
Commissioners and the Chair in facilitating those changes.

    Question 6. Do you support the use of ``testers''--individuals paid 
by the EEOC to pretend to seek employment in the hopes of catching 
employers in an act of discrimination--to develop allegations of 
discrimination against employers? Given the sizeable backlog that EEOC 
currently has, is it appropriate to manufacture allegations when EEOC 
cannot process the claims of employees with actual grievances in a 
timely manner?
    Answer 6. The issue of testers is complex. As one can imagine, it 
is difficult to determine whether discrimination has occurred in the 
hiring process, because applicants themselves often have no way of 
knowing whether such discrimination has occurred. That is the reason 
the testers concept was developed. However, if confirmed, I would want 
to be briefed by staff at the EEOC regarding the use of testers by the 
agency. In addition, I would want to engage members of the business 
community, to hear their views on the issue.

    Question 7. A Government Accountability Office Report (GAO) 
published this summer outlined a number of concerns about the fairness, 
promptness and impartiality of the EEO complaint process (GAO-09-712). 
Assuming you are familiar with this report in anticipation of your 
service, what is your evaluation of its findings and recommendations?
    Answer 7. Ensuring a fair, prompt, and impartial EEO complaint 
process is very important. I am not familiar with the GAO report cited 
above at this point in time. If confirmed, however, I look forward to 
studying it closely. I have used GAO reports often in my legal work, 
and I have consistently found those reports to be excellent sources of 
objective and useful data and analysis.

    Question 8. The Government Accountability Office's recent report 
(GAO-09-712) and others have questioned whether EEOC staff members 
receive enough training to gain the knowledge and skills necessary to 
perform their job effectively. What is your view of this issue? Do you 
have any plans to enhance or alter training of EEOC staff?
    Answer 8. I am not currently familiar with the training that EEOC 
staff members receive. However, ensuring that individuals who are 
handling sensitive charges have the requisite knowledge and skills to 
perform their jobs effectively and fairly seems to me to be of 
paramount importance. lf confirmed, I am fully committed to working 
closely with the Chair to ensure that EEOC staff has the necessary 
material support to be able to effectively carry out their mission-
related responsibilities.

    Question 9. One solution proposed in the GAO report was to 
establish performance-based accountability measures to enhance 
timeliness and quality of investigations by agency staff. Would you 
support enhancing EEOC services in this manner? Are there any obstacles 
to implementing such a plan?
    Answer 9. I am not sufficiently familiar with all of the challenges 
of the current system to provide an opinion on establishing 
performance-based accountability measures. Nevertheless, as I note 
above, it seems of paramount importance to me that EEOC staff perform 
in an efficient and fair manner. I would imagine that this is exactly 
how most staff would want to perform, given the important 
responsibilities they have in dealing with sensitive charges.

    Question 10. Some equal employment opportunity (EEO) practitioners 
involved with the Federal EEO complaint process have proposed 
transferring the investigation responsibility to EEOC rather than the 
Federal agencies from which the complaint arises. Do you favor this 
proposal and would you implement it?
    Answer 10. I am aware that there is an apparatus for dealing with 
EEO complaints from Federal employees that uses internal agency 
procedures. If confirmed, I would want to be briefed on why that 
approach was initially adopted and the advantages and disadvantages of 
using internal systems at the Federal agencies against whom the charges 
have been lodged.

    Question 11. All too often Federal agencies have found that their 
actions have unintended consequences on U.S. industries and workers 
that could have been discovered had the action been more completely 
vetted. The Administrative Procedures Act is intended to address this, 
but it does not cover all agency action. Will you commit to consult 
with all stakeholders for each particular issue when the Commission is 
considering regulatory or other action?
    Answer 11. I am a very strong believer in consulting with all 
relevant stakeholders before engaging in regulatory or other action. 
From my perspective, this consultation is the best way to make informed 
decisions--by ensuring that one actually is informed.

    Question 12. As a former small businessman, I know how difficult it 
can be to navigate the bureaucratic maze of Federal agencies and 
regulations. Small businesses create 80 percent of our Nation's net new 
jobs and, in turbulent economic times such as these, I believe we 
should be doing everything in our power to make sure they can stay in 
business. Please outline what EEOC practices and policies you plan to 
maintain, enhance or create to assist small businesses?
    Answer 12. As I noted during the confirmation hearing, I am a 
strong believer in the usefulness for both employers and employees of 
having discrimination-free workplaces. Therefore, I would be very 
interested in working with small business to help develop the best 
mechanisms for enabling such businesses to maintain discrimination-free 
workplaces. Before recommending specific practices and policies, I 
would want to speak with agency officials and stakeholders and study 
the practices and policies that the EEOC currently uses to assist small 
businesses in complying with anti-discrimination laws.

    Question 13. What is your view of the responsibility of the EEOC 
District offices in the conciliation process? Are the appropriate 
parties being consistently involved in the process? Does EEOC 
management at all levels provide enough support to the conciliation 
process?
    Answer 13. I believe that the conciliation process is a very 
important one for both employers and employees. However, I am not 
sufficiently informed about the current conciliation process used by 
the EEOC to provide an informed view on this question. If confirmed, I 
would want to be briefed on how the conciliation process is currently 
working and to then work with my fellow Commissioners and the Chair to 
enhance that process.

    Question 14. Will you pledge that you will work to ensure that EEOC 
will vigorously support resolving charges through mediation, settlement 
and conciliation?
    Answer 14. I believe that mediation, settlement and conciliation 
are all very important processes for resolving charges without having 
to resort to expensive litigation. If confirmed, I would work with my 
fellow Commissioners and the Chair to ensure that such processes are 
being used in the most efficient and effective manner for both 
employers and employees.

    Question 15. The EEOC was charged with finalizing regulations under 
the Genetic Information Non-Discrimination Act (GINA) by May of this 
year, 1 year after enactment, but has missed this deadline. The law's 
mandatory compliance date is 18 months after enactment, which also 
happens to be the same week the HELP Committee held your confirmation 
hearing. Do you believe it is fair to require employers to comply with 
this statute when EEOC has not yet provided final regulatory guidance? 
What sort of standards should employers be held to in the absence of 
regulatory guidance?
    Answer 15. In the absence of regulations, employers are bound by 
the text of the law and any relevant legislative history. If confirmed 
to the EEOC, I look forward to helping ensure that the regulations to 
implement GINA are issued as soon as possible.

    Question 16. Do you believe that an employer's use of credit or 
criminal background checks in hiring is or can be discriminatory? 
Please explain why or why not.
    Answer 16. As I understand it, the EEOC has issued several policy 
statements about when employers' exclusion of applicants based on 
conviction or arrest records would amount to unlawful employment 
discrimination. In addition, I am aware that the EEOC has filed a 
lawsuit against one company based on its use of credit history and 
criminal charges and convictions of applicants.
    I am not, however, familiar with the details of either the case or 
the policy statements. If confirmed, I would be interested in learning 
more about the details of both in order to understand the legal 
rationale of both the case and the policy statements.

    Question 17. I have been told that funding for EEOC's outside 
mediators has been decreased over the last several years and that this 
has been a particularly acute problem in more rural/suburban areas. As 
a Senator representing one of many more rural States, this concerns me. 
Do you agree EEOC has a duty to ensure its services are available 
nationally?
    Answer 17. I agree that EEOC has a duty to ensure its services are 
available nationally. We need workplaces that are free of 
discrimination across this country. Such workplaces are critical to the 
productivity and vitality of our Nation's workforce competing in the 
global marketplace. At this time, I am unfamiliar with the agency's 
policy concerning the use of outside mediators in rural and suburban 
areas. However, I am committed to making an evaluation of the agency's 
presence and service capacity and to working with the Chair and with 
Congress to ensure that the full range of agency services are available 
and accessible wherever needed.
        Response to Questions of Senator Coburn by Chai Feldblum
    Question 1. What assurances can you give the Senate that, if 
confirmed, your past advocacy for various groups will not cloud your 
objectivity or judgment in your decisionmaking process?
    Answer 1. I am acutely aware of the different role to be played by 
an advocate as compared to the responsibilities of a Commissioner of an 
independent agency. If confirmed, I will faithfully implement the laws 
as enacted by Congress and signed by the President.

    Question 2. President Obama has been a champion of government 
transparency during his time in the U.S. Senate and campaigned on a 
promise to make the Federal Government more transparent. What is your 
philosophy of transparency, accountability and management?
    Answer 2. I believe it is critical that the processes of the 
Federal Government be transparent, that members of the Federal 
Government be accountable to the people, and that the Federal 
Government be well managed. If confirmed, I look forward to working 
with my fellow Commissioners and the Chair to ensure that our work at 
the EEOC reflects these principles.

    Question 3. President Obama's transition Web site said this about 
how Cabinet agencies will operate:

          Conduct Regulatory Agency Business in Public: Obama will 
        require his appointees who lead the executive branch 
        departments and rulemaking agencies to conduct the significant 
        business of the agency in public, so that any citizen can see 
        these debates in person or watch them on the Internet.

    Please specify how you will implement this transparency mandate in 
your position should you be confirmed.
    Answer 3. I believe the significant business of an agency should be 
conducted in public so that citizens can view these important debates. 
If confirmed, I look forward to learning more about how the EEOC is 
currently implementing any transparency requirements announced by the 
President, and then to working with my fellow Commissioners and the 
Chair to continue such efforts, or to enhance them if necessary.

    Question 4. If confirmed, what will be your policy priorities?
    Answer 4. If confirmed, my policy priorities will be to ensure that 
the anti-
discrimination requirements set forth in our civil rights employment 
laws, as enacted by Congress and signed by the President, are 
faithfully and effectively implemented. This requires engaging with 
entities that have a stake in the effective and faithful implementation 
of such laws (including both employee and employer representatives) and 
to hear from them how the EEOC can best carry out its mandate.

    Question 5. Please explain which provision(s) in the Constitution 
you believe authorized Congress to create the EEOC.
    Answer 5. The Supreme Court ruled in Heart of Atlanta Motel v. 
United States, 379 U.S. 241 (1964) that Congress has the power under 
the Commerce Clause to enact the public accommodation provisions of the 
Civil Rights Act of 1964. The same Commerce Clause power provides 
Congress with the power to enact the employment provisions of the Civil 
Rights Act of 1964. See United Steelworkers of America v. Weber, 443 
U.S. 193, 206 n. 6 (1979). In addition, Congress has power under 
Section 5 of the Fourteenth Amendment to extend the employment 
provisions of title VII to State employers. See Fitzpatrick v. Bitzer, 
427 U.S. 445, 453 n. 9 (1976).
    As part of those employment provisions, Congress created the Equal 
Employment Opportunity Commission (EEOC). 42 U.S.C.  2000e-4(a). 
Congress gave the EEOC the power to cooperate with regional, State, 
local, and other agencies, both public and private, and individuals; 
pay witnesses whose depositions are taken or who are summoned before 
the Commission or any of its agents; furnish to persons subject to the 
employment provisions of the law technical assistance as they may 
request it to further their compliance with law; engage in conciliation 
or other remedial action, upon the request of an employer or labor 
union, in certain circumstances; to engage in technical studies as 
appropriate to effectuate the purposes and policies of the employment 
provisions; and to intervene in civil actions brought by an aggrieved 
party against a respondent other than a government agency. 42 U.S.C.  
2000e-4(g). These powers are similar to powers given to other 
independent agencies.
    Article II,  2 of the Federal Constitution provides that the 
President ``shall nominate, and by and with the Advice and Consent of 
the Senate, shall appoint . . . Officers of the United States, whose 
Appointments are not herein otherwise provided for, and which shall be 
established by Law.'' (Emphasis added.) Thus, the Federal Constitution 
presumes that Congress will enact legislation that will create officers 
of the United States (i.e., executive personnel) who will be subject to 
the nomination and confirmation processes established in the 
Constitution.
    The Supreme Court has consistently upheld the power of Congress to 
create both executive agencies and independent agencies. In Hampton & 
Co. v. U.S., 276 U.S. 394 (1928), the Court upheld the validity of the 
Tariff Act of 1922, giving the President the power to modify tariffs, 
using the expertise of a Tariff Commission created by Congress in that 
law.\1\ As long as Congress remains within the constrains of the non-
delegation principle announced in the Hampton case, the Supreme Court 
has upheld the power of Congress to create executive and independent 
agencies to help faithfully implement the laws that it passes. In 
Humphrey's Executor v. United States, 295 U.S. 602 (1935), the Supreme 
Court upheld Congress' power to establish set terms for commissioners 
at independent agencies, who could not be removed by the President 
before the expiration of those terms, following a duly established 
nomination and confirmation process.
---------------------------------------------------------------------------
    \1\ Section 315 of the Tariff Act provided that: ``Investigations 
to assist the President in ascertaining differences in costs of 
production under this section shall be made by the United States Tariff 
Commission, and no proclamation shall be issued under this section 
until such investigation shall have been made. The Commission shall 
give reasonable public notice of its hearings and shall give reasonable 
opportunity to parties interested to be present, to produce evidence, 
and to be heard. The Commission is authorized to adopt such reasonable 
procedure, rules, and regulations as it may deem necessary.''

    Question 6. What does the phrase: ``Congress shall make no law 
respecting an establishment of religion, or prohibiting the free 
exercise thereof,'' mean to you with respect to the free exercise of 
religion?
    Answer 6. The First Amendment is an incredibly important source of 
protection for religious and non-religious people, in terms of both its 
Free Exercise and Establishment Clause purposes. As I note in my answer 
to the first question, if confirmed, my actions will be guided by the 
current state of the law and not by my personal views. Hence, what the 
phrase, ``Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof,'' means will depend 
on what the Supreme Court has said it means. If confirmed, and if an 
issue arises at the EEOC requiring the application of the First 
Amendment, I will apply the law as set forth by the Supreme Court.

    Question 7. Do you understand the First Amendment religious liberty 
protection to include the right of a health care worker to not have to 
perform or support the performance of an abortion as a condition of 
employment? What about a healthcare provider in a pharmacy refusing to 
dispense an abortifacient drug as a condition of employment?
    Answer 7. In cases described in the question, I presume that the 
health care workers would seek a reasonable accommodation under title 
VII to accommodate their religious beliefs. The Supreme Court has 
constrained the scope of that reasonable accommodation provision 
through its interpretation of the term ``undue hardship.'' I am not 
aware of cases in which this constricted interpretation has been held 
to be a violation of the First Amendment. If confirmed, I would be 
interested in learning more about that issue.

    Question 8. Have you considered, or have any interest in changing, 
modifying, or revoking Section V of the National Enforcement Plan?
    Answer 8. I have reviewed Section V of the National Enforcement 
Plan in order to respond to this question. I have no basis, at this 
point, for thinking I would be interested in changing, modifying or 
revoking section 5. However, if confirmed, I look forward to learning 
more about how section 5 is working in practice and to working with the 
Chair and my fellow Commissioners in ensuring that the relationship 
between the EEOC's General Counsel and the Commissioners results in the 
effective and thoughtful implementation of the employment non-
discrimination laws enacted by Congress.

    Question 9. Do you believe it is employment discrimination for a 
school principal to reassign to a high-school teaching position a 
kindergarten teacher who is undergoing a transgender sex change because 
the principal is concerned that kindergartners are not mature enough to 
deal with their teacher's transformation?
    Answer 9. The Supreme Court has ruled that discriminatory actions 
based on stereotypes about sex constitutes sex discrimination under 
title VII. In some cases, individuals who have changed their gender 
from the one assigned to them at birth have presented factual evidence 
that they have experienced discrimination based on stereotypes about 
sex. However, the facts presented in this question do not indicate 
whether such stereotypes were in play in this case.

    Question 10. Do you understand title VII to already prohibit sexual 
orientation discrimination?
    Answer 10. I do not believe that any court has held that title VII 
prohibits sexual orientation discrimination.

    Question 11. If a state enacted a law or regulation requiring 
medical professionals to assist their patients in euthanasia, would 
Federal law provide any protections for the rights of conscience of 
these medical professionals?
    Answer 11. I am not conversant with all the Federal laws that might 
exist to provide protections for such medical professionals. I am aware 
that the Supreme Court has constrained the scope of the reasonable 
accommodation provision for religious beliefs under title VII through 
its interpretation of the term ``undue hardship.'' I presume that this 
interpretation of ``undue hardship'' would apply to any accommodation 
sought by such medical professionals.

    Question 12. Please explain your belief regarding when religious 
liberty trumps same-sex identity rights and when it does not.
    Answer 12. Under current law, a religious organization may require 
that employees conform to the religious tenets of the organization. In 
such cases, the religious liberty of the organization will trump other 
identity interests of applicants or employees protected under title 
VII.
    Current law does not permit individuals to discriminate on the 
basis of race, sex, religion, national origin, or disability, if they 
experience compliance with such laws as conflicting with their 
religious beliefs. See Newman v. Piggie Park Enters., 256 F. Supp. 941 
(D.S.C. 1966) (rejecting claim that a white person can get a personal 
exemption from the Civil Rights Act of 1964 because ``his religious 
beliefs compel him to oppose any integration of the races whatever''); 
EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988) 
(corporation owned by religious person is required to accommodate an 
employee, as required by title VII, even if such accommodation causes 
the employer ``spiritual'' hardship.)

    Question 13. During the confirmation hearing you announced you had 
requested that your name be withdrawn from a document from a group 
known as ``Beyond Marriage'' that you signed in 2006 supporting ``a new 
vision for securing governmental and private institutional recognition 
of diverse kinds of partnerships, households, kinship relationships and 
families. In doing so, we hope to move beyond the narrow confines of 
marriage politics as they exist in the United States today.'' You said: 
``I agree with the general thrust of the statement that we ought to 
support care-giving relationships. But the statement goes beyond what I 
would have said to communicate that point.'' Please explain what you 
would have said to communicate that point.
    Answer 13. I would have said what I had already said in writings 
prior to 2006, and in writings subsequent to 2006: that a significant 
amount of caregiving exists in our society and it is important for 
society to support these caregiving relationships.

    Question 14. The Beyond Marriage document is extensive and 
thoughtful presenting intellectual arguments advancing the idea that 
``to have our government define as `legitimate families' only those 
households with couples in conjugal relationships does a tremendous 
disservice to the many other ways in which people actually construct 
their families, kinship networks, households and relationships.'' 
Please explain how much of the Beyond Marriage document you had read 
and gave thought to before you signed it.
    Answer 14. I read the Beyond Same-Sex Marriage statement when it 
was sent to me by a fellow legal academic. I agreed with the general 
thrust of the document that it is important to support the types of 
caregiving relationships that exist in our society.

    Question 15. Please explain why you waited 3 years, and until a few 
weeks before your confirmation hearing, to request that your name be 
withdrawn from the petition?
    Answer 15. I did not sign the Beyond Same-Sex Marriage document in 
order to state a belief that the government should recognize polygamy 
or polyamorous relationships. I have never held such a belief, nor have 
I advocated for such a position in my writings in the area of LGBT 
rights. During the course of the nomination process, this statement in 
the document came to my attention. Because it did not reflect my 
beliefs, I asked for my name to be removed.

    Question 16. Do you believe it is employment discrimination for an 
employer to refuse to extend health and other benefits to partners of 
an employee in a polyamorous relationship even though the employer 
extends such benefits to marriage partners and civil union partners?
    Answer 16. No.

    Question 17. In your writings you have advanced a new term known as 
``identity liberty.'' Please explain this new ``identity liberty'' and 
explain, if confirmed, how your understanding of it will influence your 
decisionmaking?
    Answer 17. In an article in Brooklyn Law Review (2007) and in a 
chapter in a book edited by Douglas Laycock, Anthony R. Picarello, Jr., 
and Robin Fretwell Wilson (2008), I argued that the Due Process Clause 
of the Federal constitution should be understood as including both 
identity liberty and belief liberty. If confirmed, nothing in that 
article or chapter that goes beyond existing constitutional law would 
influence my decisionmaking, since my role would be to apply existing 
law.
  Additional Response to Questions of Senator Coburn by Chai Feldblum
    Question 1. In your responses to my previous question regarding 
your policy priorities, you both focused on the enforcement duties of 
EEOC. As you know, the EEOC does more than enforcement, and as Chair 
and Commissioner you will have various opportunities to shape national 
discrimination protection policy. Related to those policy-related 
functions of the Commission, please explain any policy priorities you 
have considered or have interest in developing?
    Answer 1. In my response to your question regarding my policy 
priorities, I stated:

          ``If confirmed, my policy priorities will be to ensure that 
        the anti-discrimination requirements set forth in our civil 
        rights employment laws, as enacted by Congress and signed by 
        the President, are faithfully and effectively implemented.''

    Effective implementation of a law requires more than simply 
enforcement of the law. It also requires thoughtful technical 
assistance and public education. If confirmed, I look forward to 
working with the Chair and my fellow Commissioners on these efforts. 
Implementation of the law does not, however, entail shaping national 
discrimination policy other than in implementing the laws passed by 
Congress and signed by the President.

    Question 2. You have been applauded for your work on the ADA Act 
and the ADA Amendments Act and have also been credited with helping to 
craft ENDA. If ENDA is passed with various changes that you oppose, how 
will you, as Commissioner, reconcile your very personal involvement in 
crafting the legislation and your knowledge of the legislative ideals, 
against what actually becomes law when the EEOC considers ENDA 
regulations or ENDA-related cases that may come before you as a 
Commissioner?
    Answer 2. If confirmed, I will have no difficulty carrying out my 
role as a Commissioner of the EEOC, with regard to ENDA or any other 
law passed by Congress and signed by the President. My role will be to 
work with my fellow Commissioners to issue regulations that carry out 
the requirements of the law as enacted by Congress.

    Question 3. In your response to my previous question regarding 
objectivity and judgment, you stated that you are aware of the 
different roles and will faithfully implement the law. Please explain 
further what principles will guide you in ensuring that you follow the 
letter of congressional enactments and not your policy desires of how 
Congress should have drafted the statute in question.
    Answer 3. If confirmed, I will be guided by the obligations of my 
role as a Commissioner of the EEOC. In that role, my responsibility is 
to work with my fellow Commissioners in carrying out the intent of 
Congress as embodied in the legislation it has passed.

    Question 4.  In your response to Senator Isakson you said you 
support ENDA's religious liberty protection. However, various religious 
organizations have expressed concern that the religious liberty 
protection in ENDA is not extensive enough. As a crafter of ENDA, how 
do you respond to those criticisms?
    Answer 4. The coverage of the religious organization provision 
proposed in ENDA is identical to the coverage of the religious 
organization provision in Title VII of the Civil Rights Act of 1964, 
with the exception that it goes beyond permitting discrimination based 
on religion and provides an allowance for discrimination based on 
sexual orientation and gender identity. My understanding is that many 
religious organizations are comfortable with the scope of this 
exemption.

    Question 5.  In your response to my question regarding the First 
Amendment's free exercise clause, you stated that the meaning of that 
phrase ``will depend on what the Supreme Court has said it means.'' 
What weight will you give to the legislative history behind the First 
Amendment's free exercise clause?
    Answer 5. If confirmed, it would not be my role to determine the 
meaning of the First Amendment. I and my fellow Commissioners would be 
guided by the Supreme Court's rulings with regard to the First 
Amendment. Whether individual Justices of the Supreme Court would 
choose to use the legislative history of the First Amendment in 
reaching their decisions would be their choice.

    Question 6.  In your response to my question regarding conscience 
protection, you stated that the right of a health care worker to not 
have to perform or support the performance of an abortion as a 
condition of employment was dependent upon the Supreme Court's 
constraint of the scope of that reasonable accommodation provision 
through its interpretation of the term ``undue hardship.'' Do you agree 
with the decisions of the following courts in declaring that nurses who 
objected to duties related to abortion were entitled to accommodations? 
Tramm v. Porter Mem'l Hosp., No. H 87-355, 1989 U.S. Dist. LEXIS 16391 
(N.D. Ind. Dec. 22, 1989); Kenny v. Ambulatory Centre of Miami, 400 So. 
2d 1262 (Fla. App. 1981).
    Answer 6. In Tramm v. Porter Mem'l Hosp., 128 F.R.D. 666 (N.D. Ind. 
Dec. 22, 1989), a U.S. Magistrate issued an Order requiring that 
various mental health records of the plaintiff be released to the 
defendant and that the plaintiff be required to submit to a second 
deposition by the defendant's new attorney. This Order was issued in a 
case in which the plaintiff claimed violations of her rights under the 
First Amendment, Title VII of the Civil Rights Act of 1964 and the 
Indiana Conscience Clause after she had been terminated for refusing to 
clean surgical instruments that had been used in abortions. While the 
Magistrate never reached the merits of the case, this case provides an 
example of what I said in my answer to the original question: that in 
cases of this kind, individuals can bring claims under title VII 
seeking a reasonable accommodation based on their religious beliefs. 
Whether such an accommodation will pose an undue hardship for the 
employer will depend on the facts of the case.
    In Kenny v. Ambulatory Centre of Miami, 400 So. 2d 1262 (Fla. App. 
1981), the State court applied the following provision of State law:

          ``No person who is a member of, or associated with, the staff 
        of a hospital nor any employee of a hospital or physician in 
        which or by whom the termination of a pregnancy has been 
        authorized or performed, who shall state an objection to such 
        procedure on moral or religious grounds, shall be required to 
        participate in the procedure which will result in the 
        termination of pregnancy. The refusal of any such person or 
        employee to participate shall not form the basis for any 
        disciplinary or other recriminatory action against such 
        person.''

    In interpreting this provision of State law, the State court used 
title VII standards regarding the reasonable accommodation of religion. 
Based on its review of the facts, a majority of the court determined 
that there was no undue hardship on the employer, while one dissenting 
judge determined there was an undue hardship. I have no basis for 
determining whether the majority or the dissent was correct, given the 
fact-based nature of the claim.

    Question 7.  In your response to my question regarding transgender 
rights in employment discrimination, you responded that the Supreme 
Court has ruled that discriminatory actions based on stereotypes about 
sex constitutes sex discrimination under title VII. Do you interpret 
that Supreme Court ruling, or any other Federal court decision, to 
embrace transgender stereotypes?
    Answer 7. To my knowledge, none of the cases that I am aware of 
refer to ``transgender stereotypes.'' Rather, several Federal courts 
have applied the Supreme Court's ruling regarding stereotypes based on 
sex to rule in favor of plaintiffs who are transgender and who have 
successfully alleged discrimination based on sex stereotyping.

    Question 8.  Do you believe it is employment discrimination for an 
employer who extends health benefits to its employees to refuse to 
include contraception, birth control, and/or abortion in those benefits 
on the basis of the employer's religious objection to such activities?
    Answer 8. A December 2000 EEOC Commission Decision found reasonable 
cause to believe that discrimination occurred under Title VII of the 
Civil Rights Act in two charges challenging the exclusion of 
prescription contraceptives from a health insurance plan. I have not 
reviewed the case law in this area to know whether the courts have 
agreed with the EEOC in this area. I do not believe the EEOC has 
created a religious exemption in this area.

    Question 9.  In your response to my question regarding whether 
title VII already prohibits sexual orientation discrimination, you said 
you do not believe any court has held that. Do you understand the 
actual text of title VII to already prohibit sexual orientation 
discrimination?
    Answer 9. The actual text of title VII prohibits discrimination 
based on sex and does not refer to sexual orientation.

    Question 10. In your response to my question regarding the ``Beyond 
Same-Sex Marriage'' statement you said you only meant that it is 
important for society to support these caregiving relationships. Isn't 
that exactly what the ``Beyond Same-Sex Marriage'' document is 
advocating? Please explain the difference between your position and the 
``Beyond Same-Sex Marriage'' document?
    Answer 10. The difference between my position and the ``Beyond 
Same-Sex Marriage'' document is that I advocate for government 
recognition and support for a range of caregiving relationships, but do 
not include within those caregiving relationships those that are 
polygamous or polyamorous.

    Question 11. It appears that your response #14 (the first #14 . . . 
the responses have two #14s) is non-responsive to my question. Please 
explain how much of the Beyond Marriage document you had read and gave 
thought to before you signed it? Also, you mention that the document 
came to your attention during the nomination process. Please explain 
how it came to your attention.
    Answer 11. I read the entire statement when it was sent to me by a 
fellow legal academic. The document came to my attention during the 
nomination process because I was astonished to find out that certain 
individuals believed I supported polygamy and polyamory. The source of 
that belief was apparently the ``Beyond Same-Sex Marriage'' statement.

    Question 12. In your response to the second #14 you said that you 
have ``never held the belief that government should recognize polygamy 
or polyamourous relationships . . . nor have I advocated for such a 
position in my writings in the area of LGBT rights.'' However, in your 
article ``Gay is Good: The Moral Case for Marriage Equality and More'' 
you state at page 5:

          ``Moreover, I hope to demonstrate how the (more) judgmental 
        moral argumentation that leads one to the conclusion that 
        government has an affirmative obligation to recognize marriage 
        for same sex couples leads one equally to the conclusion that 
        government has an affirmative obligation to recognize important 
        social relationships outside of marriage.'' (Emphasis added.)

    And at page 41:

          ``The same moral duty that requires the State to support 
        marriage relationships and non-marital sexual relationships 
        should be extended to support NSDPs (non-sexual domestic 
        partners).''

    Please explain this apparent contradiction between your response to 
my question for the record and your article.
    Answer 12. There is no contradiction between my answer to your 
question and my writings. I do not believe that the government should 
recognize or support polygamy or polyamorous relationships, and my 
writings are consistent with that view.
    As the first quote indicates, I believe that there are important 
caregiving relationships that exist outside of marriage that should be 
supported by the government--including grandparents caring for 
grandchildren, elderly people living together, or siblings living 
together. I do not believe that the government should support 
polygamous or polyamorous relationships.
    With respect to the second quote, to the extent that I refer to 
non-marital sexual relationships, I am referring only to relationships 
between two people. The only relationships involving more than two 
individuals that I believe the government should recognize or support 
are non-sexual caregiving relationships.

    Question 13. In your response to question #16 regarding your 
advancement of a new term ``identity liberty'' and how your 
understanding of that new term will influence your decisionmaking, you 
respond by saying that nothing in that article that ``goes beyond 
existing constitutional law would influence my decisionmaking, since my 
role would be to apply existing law.'' However, in addition to applying 
existing law, your role as a Commissioner will include policymaking. 
How do you intend to use your policymaking capacity as Commissioner to 
expand your beliefs regarding legal protections for ``identity-
liberty''?
    Answer 13. If confirmed, I will not engage in policymaking as a 
Commissioner other than to implement the laws as passed by Congress and 
signed by the President. My views regarding the scope of the Due 
Process Clause of the Federal constitution would have no relevance to 
the implementation of such laws.
       Response to Questions of Senator Isakson by Chai Feldblum
    Question 1. You have written that ``there can be a conflict between 
religious liberty and sexual liberty, but in almost all cases the 
sexual liberty should win.'' Can you give me an example of such a 
conflict and how you would attempt to resolve it?
    Answer 1. I have never written the sentence that ``there can be a 
conflict between religious liberty and sexual liberty, but in almost 
all cases the sexual liberty should win.'' Such a sentence does not 
accurately reflect my position on religious liberty.
    The sentence you refer to appears in a quote attributed to me in an 
article written by Maggie Gallagher in The Weekly Standard in 2006. 
During that interview, Ms. Gallagher and I were primarily discussing 
situations in which individual religious people were seeking exemptions 
from general anti-discrimination laws because they were experiencing a 
conflict between their personal religious beliefs and compliance with a 
non-discrimination law.
    I told Ms. Gallagher that, in such situations, I agreed with 
current Federal anti-discrimination law. That is, under current Federal 
law, employers may not discriminate on the basis of race, sex, 
religion, national origin, or disability, even if complying with such a 
non-discrimination law might create a conflict for them with their 
religious beliefs.
    My quote to Ms. Gallagher indicated my agreement with current law, 
should a non-discrimination law such as ENDA be enacted.
    In Ms. Gallagher's article, she also discussed situations in which 
religious organizations, such as Catholic Charities USA, were 
experiencing a conflict between their religious beliefs and compliance 
with anti-discrimination laws.
    In light of that fact, I was particularly pleased to be able to 
clarify my position on religious organizations in response to questions 
from Senator Enzi during my confirmation hearing on November 19th. To 
reiterate, in response to your question here, my position with regard 
to religious organizations and employment is the following:
    I support the current exemption for religious organizations in 
Title VII of the Civil Rights Act, as well as the proposed exemption 
for religious organizations in the Employment Non-Discrimination Act. 
These exemptions mean that when a religious organization experiences a 
conflict between staying true to its religious liberty interests and 
complying with a non-discrimination law protecting the sexual 
orientation and gender identity interests of prospective employees, the 
religious liberty interests of the organization prevail. This is the 
case regardless of the position held by the employee in the 
organization.

    Question 2. You have written that ``religious beliefs should be 
accorded no more weight--and no less weight--than a belief derived from 
a non-religious source.'' How do you reconcile this statement with the 
First Amendment guarantee of free exercise of religion?
    Answer 2. I do not believe that religious beliefs should receive 
less weight than other beliefs when considering a free exercise claim 
under the First Amendment. The sentence that I wrote refers to a claim 
being brought under an entirely new category of protection that I was 
recommending the courts should recognize under the Due Process Clause. 
The full paragraph in which the sentence you quote appears is the 
following (new emphasis in bold and bold italics; italics emphasis in 
original):

          Analyzing belief liberty under the Due Process Clause (and 
        not simply under the First Amendment) serves an additional 
        useful purpose. An individual's deeply held beliefs may derive 
        from religious sources, from purely secular sources or from 
        spiritual sources that are not traditionally viewed as 
        religious. If these beliefs are an integral part of the 
        person's sense of self, my argument is that they constitute 
        belief liberty. The particular source of the individual's 
        beliefs is not the barometer of their importance for due 
        process purposes. For belief liberty, the source of the beliefs 
        (be it faith in God, belief in spiritual energy or a conviction 
        of the rational five senses) has no relevance. A belief derived 
        from a religious faith should be accorded no more weight--and 
        no less weight--than a belief derived from a non-religious 
        source.

    To clarify my position on religious liberty, I believe the First 
Amendment is an incredibly important source of protection for religious 
and non-religious people, in terms of both its Free Exercise and 
Establishment Clause purposes. For that reason, I support the 
exemptions for religious organizations under title VII, even though it 
privileges religious beliefs over other beliefs. Apart from the First 
Amendment, I have suggested in my legal scholarship that religious 
beliefs also deserve protection under the Due Process Clause, just like 
any other important belief or liberty interest.
    If confirmed, my actions will be guided by the current state of the 
law and not by my personal views. I am acutely aware of the different 
role to be played by an advocate as compared to the responsibilities of 
a Commissioner of an independent agency. If confirmed, I will 
faithfully implement the laws as enacted by Congress and signed by the 
President.

    Question 3. Do you believe that, under current law, a Christian 
business owner retains his religious freedom when he engages in 
commerce? Or does he lose that right to free exercise when he hires and 
fires? How would passage of ENDA change this?
    Answer 3. I believe that current law, as set forth in the case of 
Newman v. Piggie Park Enters., 256 F. Supp. 941 (D.S.C. 1966) and in 
the case of EEOC v. Townley Eng'g & Mfg. Co., 859 F.2d 610 (9th Cir. 
1988) is correct. In the Piggie Park Enterprise case, a district court 
in South Carolina rejected a claim that a white person could get a 
personal exemption from the Civil Rights Act of 1964 because ``his 
religious beliefs compel him to oppose any integration of the races 
whatever.'' In the Townley case, the Ninth Circuit held that a 
corporation owned by a religious person was required to accommodate an 
employee, as required by title VII, even if such accommodation caused 
the employer ``spiritual'' hardship. I do not believe passage of ENDA 
would change current law in this regard. As stated above, if confirmed, 
my actions will be guided by the current state of the law and not by my 
personal views.

    Question 4. A primary objective of EEO laws was to promote prompt 
and voluntary resolution of claims. Do you support that objective? Does 
that mean that you believe in a sincere effort at resolution through 
conciliation and before litigation?
    Answer 4. The prompt and voluntary resolution of EEOC claims can 
significantly benefit both employers and employees. For that reason, if 
confirmed, I look forward to learning more about EEOC's current efforts 
to use conciliation prior to litigation. In addition, if confirmed, I 
look forward to working with my fellow Commissioners and the Chair to 
ensure that the processes of mediation and conciliation are used in the 
most efficient and effective manner for both employers and employees.

    Question 5. Do you think the EEOC has an obligation to provide 
guidance to employers to facilitate voluntary compliance parallel to 
its law enforcement role?
    Answer 5. Yes.

    Question 6. Do you believe that illegal aliens are entitled to 
equal protection under the employment discrimination laws, even though 
their employment here is illegal?
    Answer 6. I have not recently reviewed the state of constitutional 
doctrine regarding illegal aliens. My understanding, based on the plain 
text of title VII, is that EEOC is not provided with discretion to ask 
about the immigration status of complainants. But I have not looked 
into whether there would be any constitutional or statutory 
restrictions on EEOC choosing to do so. If confirmed, I look forward to 
learning more about EEOC's current policy concerning the immigration 
status of complainants.
   Response to Questions of the HELP Committee by Victoria A. Lipnic
    Question 1. In your letter to the Designated Ethics Officer, you 
state that you will not participate personally and substantially in any 
particular matter involving specific parties in which your former 
employer is a party or represents a party and certain other 
organizations and entities you were affiliated with for a 1-year period 
unless you first receive a written waiver pursuant to Federal 
regulations. On January 21, 2009, President Obama signed Executive 
Order 13490, ``Ethics Commitments by Executive Branch Personnel'' that 
requires a separate 2-year recusal for any ``particular matter 
involving specific parties that is directly and substantially related 
to my former employer or former clients, including regulations and 
contracts.'' Please explain the process you will implement for ensuring 
both recusals are effective. Please also explain any impact that these 
requirements may have on your ability to fulfill duties, including 
whether any recusals involve entities that could appear before you in 
the position you are nominated for and/or if the entities have existing 
or potential involvement with the agency you are nominated to.
    Answer 1. In addition to my letter to the Designated Ethics 
Officer, I have reviewed President Obama's Executive Order 13490 which 
requires my recusal for 2 years from any ``particular matter involving 
specific parties that is directly and substantially related to my 
former employer or former clients.'' Consistent with this requirement, 
if any matter comes before me as a Commissioner of the EEOC in which my 
former employer or clients are either a party or are representing a 
party, I will recuse myself from consideration of such particular 
matters for 2 years from the date of my confirmation. In all cases, I 
will inquire as to who is representing any entity on a particular 
matter before the Commission which may require the attention or 
deliberation of the Commissioners in order to ensure I am aware of any 
possible conflict and need for recusal. I do not believe that these 
requirements for recusal as to particular matters will have a negative 
impact on my abilities to fulfill my duties as a Commissioner.

    Question 2. Do you understand that it is your continuing 
responsibility to supplement these and all other responses if you 
subsequently determine that they are not complete?
    Answer 2. Yes.

    Question 3. One reason we pass a considerable amount of legislation 
through this committee by unanimous consent is because of the good 
working relationship between the majority and minority, both Senators 
and our staff. If confirmed, will you pledge to cooperate in this type 
of a working relationship with all Senators on this committee, Democrat 
or Republican--by promptly responding to any written or phone 
inquiries, sharing information as soon as it becomes available--and 
directing your staff to do the same?
    Answer 3. Yes. As a former committee counsel in the U.S. House of 
Representatives and then from my service as Assistant Secretary of 
Labor, a position which also required confirmation by the U.S. Senate, 
I have a great appreciation for the need of congressional committees 
and individual members of the committee to be provided with full 
information as quickly as possible from the executive branch or 
independent agencies in order to carry out the committee's business. I 
have always worked cooperatively with the majority and minority staffs 
beginning with my experience working in the House of Representatives 
and I would continue to do so as a Commissioner at the EEOC.

    Question 4. Have your taxes always been paid on time, including 
Federal, State and local taxes, property taxes, business taxes and/or 
sales and use taxes, as well as taxes paid on behalf of any employees?
    Answer 4. Yes.
     Response to Questions of Senator Coburn by Victoria A. Lipnic
    Question 1. What assurances can you give the Senate that, if 
confirmed, your past advocacy for various groups will not cloud your 
objectivity or judgment in your decisionmaking process?
    Answer 1. I have not been an advocate for various outside interest 
groups in a professional capacity in my career. I am currently an 
attorney with the law firm Seyfarth Shaw LLP where I represent clients 
in employment matters. To the extent that any Seyfarth Shaw clients 
have matters before the EEOC I would be recused from those matters. 
Most recently, I served as the Assistant Secretary of Labor for 
Employment Standards and prior to that as Workforce Policy Counsel to 
the Committee on Education and the Workforce in the U.S. House of 
Representatives. I am well aware of the obligation of senior government 
officials to carry out their duties in a fair and objective manner. I 
have done so in the past and, if confirmed, would do so again at the 
EEOC.

    Question 2. President Obama has been a champion of government 
transparency during his time in the U.S. Senate and campaigned on a 
promise to make the Federal Government more transparent. What is your 
philosophy of transparency, accountability and management?
    Answer 2. I concur with President Obama's goal to make government 
more transparent, accountable and better managed. Having been the head 
of the largest agency at the Department of Labor I have considerable 
experience with these issues and the impact they have on the 
credibility and operational effectiveness of agencies. I believe that 
all personnel of Federal agencies must be held to the highest standards 
of accountability and that the policy and operational decisions of 
Federal agencies must be transparent. Should I be confirmed for this 
position, I would seek to work with my fellow Commissioners and the 
career staff to ensure the EEOC meets these goals at all levels of the 
agency.

    Question 3. President Obama's transition Web site said this about 
how Cabinet agencies will operate: Conduct Regulatory Agency Business 
in Public: Obama will require his appointees who lead the executive 
branch departments and rulemaking agencies to conduct the significant 
business of the agency in public, so that any citizen can see these 
debates in person or watch them on the internet.
    Please specify how you will implement this transparency mandate in 
your position should you be confirmed.
    Answer 3. I will work with my fellow Commissioners and the General 
Counsel as well as the career staff of the EEOC to ensure this 
transparency is real. That includes input from the public on both 
formal rulemaking and the many sub-regulatory/guidance documents 
produced by the Commission.

    Question 4. If confirmed, what will be your policy priorities?
    Answer 4. I will first and foremost be focused on the EEOC carrying 
out its enforcement of the Nation's civil rights employment laws. 
Further, as I testified at the confirmation hearing, I would want to 
work with my fellow Commissioners and the career staff to ensure the 
EEOC has a viable and vigorous conciliation program.

    Question 5. Please explain which provision(s) in the Constitution 
you believe authorized Congress to create the EEOC.
    Answer 5. Article 1, Section 8, the Commerce Clause; Article 2, 
Section 2; Section 5 of the 14th Amendment.
     Response to Questions of the HELP Committee by P. David Lopez
    Question 1. In Part I, page 3 under the Published Writings section 
of the Committee application, you provided a list of publications you 
have authored. Can you please provide copies of ``Texas Case Opens 
Window on Sexual Harassment of Latinos,'' and ``Immigration-Related 
Employment Discrimination: A Practical Legal Manual'' that the 
committee has not been able to locate?
    Answer 1. Please see attached.

    Question 2. In your letter to the Designated Ethics Officer, you 
state that you will not participate personally and substantially in any 
particular matter involving specific parties in which your former 
employer is a party or represents a party and certain other 
organizations and entities you were affiliated with for a 1-year period 
unless you first receive a written waiver pursuant to Federal 
regulations. On January 21, 2009, President Obama signed Executive 
Order 13490, ``Ethics Commitments by Executive Branch Personnel'' that 
requires a separate 2-year recusal for any ``particular matter 
involving specific parties that is directly and substantially related 
to my former employer or former clients, including regulations and 
contracts.'' Please explain the process you will implement for ensuring 
both recusals are effective. Please also explain any impact that these 
requirements may have on your ability to fulfill duties, including 
whether any recusals involve entities that could appear before you in 
the position you are nominated for and/or if the entities have existing 
or potential involvement with the agency you are nominated to.
    Answer 2. I have been an employee of the Equal Employment 
Opportunity Commission, the same agency to which I have been nominated, 
since 1994. The Equal Employment Opportunity Commission's designated 
agency ethics official has reviewed my affiliations and determined that 
any potential conflict of interest would be adequately addressed by the 
terms of my ethics agreement. In accordance with the ethics agreement 
that I entered into with the EEOC's designated ethics official, I will 
do the following:

     As required by 18 U.S.C. 208(a), I will not participate 
personally and substantially in any particular matter that has a direct 
and predictable effect on my financial interests or those of any other 
person whose interests are imputed to me, unless I first obtain a 
written waiver, pursuant to 18 U.S.C. 208(b)(1), or qualify for a 
regulatory exemption, pursuant to 18 U.S.C. 208(b)(2). I understand 
that the financial interests of the following are imputed to me: any 
spouse or minor child of mine; any general partner of a partnership in 
which I am a limited or general partner; any organization in which I 
serve as officer, director, trustee, general partner or employee; and 
any person or organization with which I am negotiating or have an 
arrangement concerning prospective employment.
     My spouse is employed by the Department of Public Health 
of Maricopa County, AZ. Pursuant to 18 U.S.C. 208, I will not 
participate personally and substantially in any particular matter that 
has a direct and predictable effect on my spouse's compensation or 
employment with the Maricopa County Department of Public Health unless 
I first obtain a written waiver, pursuant to 18 U.S.C. 208(b)(1). I 
also will not participate personally and substantially in any 
particular matter involving specific parties in which the Maricopa 
County Department of Public Health is a party or represents a party, 
unless I am first authorized to participate, pursuant to 5 CFR 
2635.502(d).
     I understand that as an appointee I am required to sign 
the Ethics Pledge (Exec. Order No. 13490) and that I will be bound by 
the requirements and restrictions therein. Accordingly, I will not for 
a period of 2 years from the date of my appointment participate in any 
particular matter involving specific parties that is directly and 
substantially related to my former employer or former clients, 
including regulations and contracts.
     If confirmed, I will work with the EEOC designated agency 
ethics official to implement the restrictions outlined in my ethics 
agreement and the Ethics Pledge. Should any other questions arise, I 
will seek advice with the EEOC's ethics official.

    Question 3. Do you understand that it is your continuing 
responsibility to supplement these and all other responses if you 
subsequently determine that they are not complete?
    Answer 3. Yes.

    Question 4. One reason we pass a considerable amount of legislation 
through this committee by unanimous consent is because of the good 
working relationship between the majority and minority, both Senators 
and our staff. If confirmed, will you pledge to cooperate in this type 
of a working relationship with all Senators on this committee, Democrat 
or Republican--by promptly responding to any written or phone 
inquiries, sharing information as soon as it becomes available--and 
directing your staff to do the same?
    Answer 4. Yes.

    Question 5. Have your taxes always been paid on time, including 
Federal, State and local taxes, property taxes, business taxes and/or 
sales and use taxes, as well as taxes paid on behalf of any employees?
    Answer 5. Yes, with the following exceptions. For tax years 1991 
and 2000, my wife and I received IRS notices that we owed additional 
taxes, and we paid the additional amounts due. For tax year 1991, we 
owed and paid an additional $191.72. Based on our records, it appears 
we had inadvertently failed to include one of five W-2s we received 
that year and a small amount of interest income. (We received multiple 
W-2s for 1991 because my wife and I both changed jobs that year, and 
the Department of Justice changed the way it handled payroll.) For tax 
year 2000, we owed and paid an additional $667.52 due to our 
inadvertent failure to report a State income tax refund.
         Response to Question of Senator Enzi by P. David Lopez
    Question 1. You have the most direct experience with EEOC of any of 
today's nominees, having worked there for the last decade. What do you 
view as the most important priorities for EEOC to focus on in order to 
achieve its organizational mission?
    Answer 1. I have worked with the EEOC since 1994, both as a Special 
Assistant to Chairman Gilbert Casellas and as a Senior Trial Attorney/
Supervisory Trial Attorney in the Phoenix District Office.
    My work in the Phoenix District Office over the past 11\1/2\ years 
has provided me a unique perspective of the day-to-day challenges 
confronting a district office in realizing the Commission's goals. From 
my vantage point, the EEOC continues to face challenges with its 
backlog and full implementation of its systemic litigation program. 
Many of these challenges stem from staffing shortages and turnover. The 
EEOC needs ongoing training on the priority charge handling procedures, 
developed under the leadership of Chairman Casellas, to ensure the 
efficient processing of charges and to strengthen its strategic 
litigation program. These twin goals require collaborative efforts 
between the enforcement and legal units. If implemented fully and 
consistently, with adequate staffing, the priority charge handling 
procedures should enable the Commission to reduce its backlog and 
strategically develop cases to maximize the Commission's law 
enforcement impact.

    Question 2. Currently, under the EEOC's National Enforcement Plan, 
the General Counsel has a great deal of discretion about whether to 
commence legal action or intervene in litigation. Would you oppose 
greater involvement of the Commission in determining which cases EEOC 
should take on?
    Answer 2. Under the National Enforcement Plan (NEP), the Commission 
delegated significant litigation authority to the Office of General 
Counsel (OGC) and the field. Delegation was designed to empower staff 
at the lowest appropriate level coupled with the elimination of 
unnecessary layers of review. In Section V of the NEP, the Commission 
delegated litigation authority to the General Counsel ``[w]ith the 
goals of increasing strategic enforcement for the General Counsel and 
field attorneys, freeing the Commission to focus on policy issues, and 
increasing the efficiency and effectiveness of [the Commission's] 
litigation program.'' Section V provides in relevant part:

     [T]he Commission delegates to the General Counsel the 
decision to commence or intervene in litigation in all cases except the 
following:

    (a) Cases involving a major expenditure of resources, e.g. cases 
involving extensive discovery or numerous expert witnesses and many 
pattern-or-practice or Commissioner's charge cases;
    (b) Cases which present issues in a developing area of law where 
the Commission has not adopted a position through regulation, policy 
guidance, Commission decision, or compliance manuals;
    (c) Cases which, because of their likelihood for public controversy 
or otherwise, the General Counsel reasonably believes to be appropriate 
for submission for Commission consideration; and
    (d) All recommendations in favor of Commission participation as 
amicus curiae which shall continue to be submitted to the Commission 
for review and approval.

    OGC, in turn, delegated some litigation authority to the field. In 
my view, this current delegation has realized the original goals of 
eliminating additional and unnecessary layers of review, increasing 
efficiency and empowering the field. It has been, for the most part, a 
success. The exhaustive memoranda required previously for Commission 
review of routine litigation matters and the periodic delays required 
to respond to Commission inquiries created unnecessary hurdles and 
diverted already-stretched field resources from other enforcement 
activities.
    If confirmed, I will address any problems arising from the 
delegation of litigation authority on a case-by-case and office-by-
office basis. As importantly, I will consult regularly with the 
Commission to ensure that they have an understanding of the litigation 
docket and to collaboratively identify any issues that might require 
greater Commission involvement, such as those cases potentially 
implicating undeveloped legal issues or creating public controversy.

    Question 3. Given your firsthand experience, do you believe that 
the EEOC has adequate staffing level to accomplish its mission? If not, 
how many more full time employees does EEOC need?
    Answer 3. As discussed above, from my vantage point based on my 
experience, many of the challenges the Commission faces with its 
backlog and implementation of its systemic litigation program stem from 
chronic staffing shortages and turnover. With respect to the litigation 
program, I understand first-hand the difficulties presented by the lack 
of resources, particularly the lack of support staff in the field. 
Moreover, recent enactment of the Americans with Disabilities Act 
Amendments, the Lilly Ledbetter Fair Pay Act, and Title II of the 
Genetic Information Nondiscrimination Act have increased the 
Commission's statutory enforcement responsibilities. Effective 
enforcement of these statutes will require additional resources.
    Nevertheless, I believe that existing resources can be more 
efficiently and effectively used. If confirmed, I will undertake a 
thorough review of the Commission's litigation program for 
opportunities to work more efficiently, operate collaboratively as an 
integrated team throughout the agency, and minimize the duplication of 
efforts. Several meaningful steps have been taken under the leadership 
of Deputy General Counsel James Lee, and previous General Counsels Ron 
Cooper and Eric Dreiband to institute the national law firm model and 
achieve these goals. We owe it to the taxpayers to remain vigilant in 
these efforts to use our limited resources as effectively and 
efficiently as possible.
    If confirmed as General Counsel, I look forward to fully assessing 
the staffing and resource needs of the General Counsel's office to 
ensure that existing resources are used effectively and efficiently. 
Furthermore, I am committed to working with the Commission and Congress 
to ensure appropriate staffing needs are met.

    Question 4. Do you believe that it is the role of the Commission 
members or the role of the General Counsel to set EEOC policy?
    Answer 4. I believe that it is the role of the Commission to set 
policy on legal issues pertaining to statutes under its enforcement 
authority. In my view, the Commission should continue to do this in 
consultation with General Counsel's office. The General Counsel's 
involvement in day-to-day litigation, including appellate litigation, 
provides the Commission a unique perspective on judicial interpretation 
of the antidiscrimination laws, important legal developments, and areas 
potentially requiring further Commission guidance.
    Although the Commission is responsible for setting the broad 
general policy with respect to the anti-discrimination statutes under 
its authority, General Counsel provides overall guidance and management 
to the various components of its office, including the litigation 
program. This authority is appropriate.

    Question 5. If you knew that a majority of members of the 
Commission opposed the EEOC taking a particular legal position, are 
there any circumstances under which you would proceed to take that 
legal position on behalf of the EEOC?
    Answer 5. If confirmed as General Counsel, I will abide by the 
Commission's formal policy positions in litigation to the extent such 
position is supported by the controlling law in the jurisdiction where 
the issue might be implicated. At this time, I am not aware of any 
circumstance where General Counsel may take a legal position contrary 
to the express legal position of the Commission.
      Response to Questions of Senator Alexander by P. David Lopez
    Question 1. In the 110th Congress I introduced language that would 
bar the EEOC from filing lawsuits against employers that require their 
employees to speak English while engaged in work. This language gained 
bipartisan support in the U.S. Senate, as well as the U.S. House of 
Representatives. My interest stemmed from a March 2007 case in which 
the EEOC sued the Salvation Army for allegedly discriminating against 
two of the Army's employees in a Boston-area thrift store by requiring 
them to speak English on the job. This case was ultimately settled.
    Given the current backlog of more egregious cases at the EEOC, what 
priority would you provide to these cases?
    Answer 1. If confirmed, I would not give priority to English-only 
cases over other types of cases. I will enforce the discrimination laws 
as passed by Congress, and interpreted by the Federal courts, and 
consistent with Commission policy. My objective will be to file the 
most important and egregious cases. However, I do not believe the 
General Counsel has the discretion to refuse categorically to enforce 
the laws against any form of discrimination deemed actionable by the 
Courts and EEOC policy.
    I share your belief that English is the language of opportunity in 
this county, and I applaud your efforts to increase funding for English 
language instruction. I believe the enormous demand for English 
language classes reflects a widespread recognition in the immigrant 
community that English is indispensable to participate in economic and 
civic society.
    I have seen the importance of English proficiency in my own life. 
My late father-in-law, who was originally from Cuba, served with the 
U.S. Merchant Marines during World War II. Even though he loved his 
adopted country with his entire heart and soul, he struggled with 
little success through numerous English classes as an adult and, as a 
result, his economic opportunities were limited. He worked as a 
custodian in a Boston hospital for most of his life while living in the 
United States and was a valued employee. He was determined, however, to 
ensure that his daughter learned English and obtained a college degree. 
He had a tremendous mind and work ethic; he understood full well that 
in order to succeed in this country, one needs to speak English and 
have an education.

    Question 2. Employers argue safety and morale as the rationale for 
requiring English in the work place, do you believe it is appropriate 
for employers to do so?
    Answer 2. The EEOC National Origin Regulations permit an employer 
to ``have a rule requiring that employees speak only in English at 
certain times'' where such a rule is justified by business necessity. 
According to Section 13 of the EEOC Compliance Manual, the reasons 
justifying an English-only rule may include: (1) ``For communications 
with customers, coworkers, or supervisors who only speak English''; (2) 
``In emergencies or other situations in which workers must speak a 
common language to promote safety''; (3) ``For cooperative work 
assignments in which the English-only rule is needed to promote 
efficiency''; and (4) ``To enable a supervisor who only speaks English 
to monitor the performance of an employee whose job duties require 
communication with coworkers or customers.''
    This list is not intended to be exhaustive and the EEOC Compliance 
Manual sets forth ``best practices'' to assist employers in evaluating 
the scope and necessity of any English-only policy. This guidance 
provides employers latitude to adopt English-only policies that promote 
legitimate business needs.

    Question 3. Is it discriminatory for employers to require employees 
to speak English in the workplace?
    Answer 3. Under EEOC Guidance and case law, there may be a legal 
issue only when an English-only policy or English fluency requirement 
does not relate to the employer's business needs, is overbroad, or is 
applied in a discriminatory manner.
    The EEOC National Origin Regulations permit an employer to ``have a 
rule requiring that employees speak only in English at certain times'' 
where such a rule is justified by business necessity. According to 
Section 13 of the EEOC Compliance Manual, the reasons justifying an 
English-only rule may include: (1) ``For communications with customers, 
coworkers, or supervisors who only speak English''; (2) ``In 
emergencies or other situations in which workers must speak a common 
language to promote safety''; (3) ``For cooperative work assignments in 
which the English-only rule is needed to promote efficiency''; and (4) 
``To enable a supervisor who only speaks English to monitor the 
performance of an employee whose job duties require communication with 
coworkers or customers.''
    This list is not intended to be exhaustive and the EEOC Compliance 
Manual sets forth ``best practices'' to assist employers in evaluating 
the scope and necessity of any English-only policy. The guidance 
provides employers with latitude to adopt English-only policies that 
promote legitimate business needs.
    The Compliance Manual also elaborates:

          ``As with any other workplace policy, an English-only rule 
        must be adopted for nondiscriminatory reasons. An English-only 
        rule would be unlawful if it were adopted with the intent to 
        discriminate on the basis of national origin. Likewise, a 
        policy that prohibits some but not all of the foreign languages 
        spoken in a workplace, such as a no-Navajo rule, would be 
        unlawful.''

    With respect to English proficiency requirements, the EEOC 
Compliance Manual states:

           ``Generally, a fluency requirement is permissible only if 
        required for the effective performance of the position for 
        which it is imposed. Because the degree of fluency that may be 
        lawfully required varies from one position to the next, 
        employers should avoid fluency requirements that apply 
        uniformly to a broad range of dissimilar positions.''

    Question 4. Under what circumstances would it be appropriate for 
the EEOC to pursue such a suit?
    Answer 4. As noted above, I see no basis to give priority to cases 
involving English-only or English proficiency policies over other 
cases. These policies vary significantly in breadth and application, 
and any assessment of whether to pursue a case is fact-specific and 
based on the applicable case law in that circuit. While many of these 
policies are based on an employer's legitimate business needs, an 
employer who adopts an English-only policy that is not related to 
business necessity may also engage in other discrimination or 
retaliation. Such conduct could include national origin harassment, 
disparate treatment, and retaliation. If such discrimination or 
retaliation is egregious, that could be a factor relevant to the 
decision to pursue a particular case.
       Response to Questions of Senator Coburn by P. David Lopez
    Question 1. What assurances can you give the Senate that, if 
confirmed, your past advocacy for various groups will not cloud your 
objectivity or judgment in your decisionmaking process?
    Answer 1. If confirmed, I will work to enforce the laws under the 
jurisdiction of the Equal Employment Opportunity Commission in a fair 
and even-handed manner. I have been employed by the EEOC since 1994 and 
the Federal Government since 1991. During this time I have advocated 
for victims of discrimination on behalf of the United States of 
America. As a government attorney, it is my responsibility to enforce 
the laws enacted by Congress and to exercise my legal judgment as 
objectively as possible to achieve the best results for my client. I 
believe I have been successful in doing so.
    Given my extensive litigation and family demands, I have had little 
opportunity for outside activities with the limited exception of 
volunteer work at St. Gregory's School, where my children attend 
school, or coaching youth sports. If confirmed, I will not allow 
outside activities to cloud my judgment in any way.

    Question 2. President Obama has been a champion of government 
transparency during his time in the U.S. Senate and campaigned on a 
promise to make the Federal Government more transparent. What is your 
philosophy of transparency, accountability and management?
    Answer 2. If confirmed, I fully intend to comply with the 
President's directives about transparency in my job. As a government 
agency, EEOC litigates in open court. Judicial review provides an 
institutional check and accountability to our actions. Further, all of 
our litigation successes, failures, and resolutions are in a public 
forum to be examined by any interested group or taxpayer.
    My personal belief is that public courts and judicial 
accountability form the basis for the greatest legal system in the 
world and ensures the highest degree of professionalism. If confirmed, 
I will stress continuously the agency's responsibilities and 
accountability to the taxpayers, collaborate with other components of 
agency to ensure transparency and accountability, and lead through 
example.

    Question 3. President Obama's transition Web site said this about 
how Cabinet agencies will operate:

          Conduct Regulatory Agency Business in Public: Obama will 
        require his appointees who lead the executive branch 
        departments and rulemaking agencies to conduct the significant 
        business of the agency in public, so that any citizen can see 
        these debates in person or watch them on the internet.

    Please specify how you will implement this transparency mandate in 
your position should you be confirmed.
    Answer 3. As noted above, if confirmed, I fully intend to comply 
with the President's directives about transparency in my job. As part 
of a government agency, the work of the General Counsel is done in open 
court. Judicial review provides an institutional check and 
accountability to the General Counsel's actions. Further, all of our 
litigation successes, failures, and resolutions are in a public forum--
open to examination by any interested group or taxpayer.
    If confirmed, I will examine steps the Office of General Counsel 
might take to ensure that information regarding its litigation 
activities is easily accessible to the public and to reaffirm that all 
resolutions remain public.

    Question 4. If confirmed, what will be your policy priorities?
    Answer 4. If confirmed, my goal will be to continue to strive to 
build a ``national law firm'' that is able to effectively and 
efficiently use its resources to combat discrimination and ensure equal 
opportunity. This includes several components.
    First, we must continue to build our infrastructure and eliminate 
impediments to effective law enforcement. This includes ensuring that 
there is adequate support staff in the field to function as an 
effective enforcement agency. It also includes improving our 
technological capabilities to increase the EEOC's ability to maximize 
its effectiveness on a limited budget. This would include a full 
evaluation of whether changes and improvements can be made with respect 
to litigation software, transcription software, and the existing brief 
bank.
    Second, given the budget realities, the EEOC's litigation program 
should make every effort to operate efficiently and as an integrated 
team. We must nurture a culture of collaboration within the agency, and 
share ideas and strategies among Districts and between Headquarters and 
the field so we can operate not as individual offices, but as an 
integrated team. We have considerable expertise within the agency; the 
appellate services division alone is a repository of vast knowledge 
about emerging legal issues. The EEOC needs to ensure that a person 
with particular expertise is able to share it with colleagues in a 
meaningful manner. If confirmed, I will examine how to continue to work 
toward the goal of national law firms. Specifically, this might include 
the development of a user-friendly directory of internal resources 
aimed at promoting collaboration and reducing the duplication of 
efforts in the field; the identification of small, inter-district work 
groups organized geographically and/or according to subject matter to 
identify and prosecute cases; and steps, to allow and encourage greater 
staff mobility between Districts and divisions.
    Third, we need to operate strategically. This includes continual 
strengthening of the EEOC's systemic program. In 2005, Chair Dominguez 
established a Systemic Task Force under the leadership of Commissioner 
Leslie Silverman. This task force made several recommendations to 
further the creation of an effective program to attack systemic 
discrimination. If confirmed, I will assess the progress made in 
implementing these recommendations, identify any impediments, and make 
any necessary modifications. Further, I will work with the Commission 
and the Office of Field Programs to reaffirm the commitment to a 
culture of collaboration critical to support these systemic cases.

    Question 5. Please explain which provision(s) in the Constitution 
you believe authorized Congress to create the EEOC.
    Answer 5. The Civil Rights Act of 1964 established the EEOC. The 
Civil Rights Act of 1964 constituted an exercise of congressional 
authority pursuant to Article I, Sec. 8, Clause 3, otherwise known as 
the ``Commerce Clause.'' The U.S. Supreme Court upheld Congress' 
exercise of this authority in Heart of Atlanta Motel Inc. v. United 
States, 379 U.S. 241 (1964).
    As part of those employment provisions of the Civil Rights Act of 
1964, Congress established the EEOC and empowered the agency to, among 
other tasks, investigate allegations of unlawful discrimination. 42 
U.S.C.  2000e-4(a).
    In addition, Article II,  2 of the Federal Constitution provides 
that the President,

          ``shall nominate, and by and with the Advice and Consent of 
        the Senate, shall appoint . . . Officers of the United States, 
        whose Appointments are not herein otherwise provided for, and 
        which shall be established by Law.''

    This Article permits Congress to enact legislation, such as the 
Civil Rights Act, that will create officers of the United States who 
will be subject to nomination by the President and confirmation by the 
Senate. The Supreme Court has upheld the authority of the President, 
within certain limits, to create agencies and independent commissions, 
to execute the laws passed by Congress.

    Question 6. The administrative and management challenges facing the 
agency are daunting. Please share with the Senate the management 
experience in your background that prepares you to direct the Agency/
General Counsel's Office out of its challenges.
    Answer 6. I believe my work in headquarters and in the field has 
given me a well-rounded appreciation for the agency. In addition, I 
have also been fortunate enough to work with the U.S. Department of 
Justice, Civil Rights Division and was exposed during my tenure there 
to another management structure and culture that helps inform my own 
approach to management.
    Between 1994 and 1998, I worked as an attorney advisor to Chairman 
Gilbert Casellas. Under Chairman Casellas's leadership, the agency made 
numerous significant changes. These included the adoption of the 
Priority Charge Handling Procedures, creation of a model mediation 
program, and the establishment of a task force to examine ``Best 
Practices'' in an effort to assist the vast majority of the business 
community that is interested in ensuring a discrimination-free 
workplace.
    As Chairman Casellas's attorney advisor, I had a broad, birds-eye 
view of the agency functions and had the opportunity to be involved in 
the Chairman's development of a vision for the agency in collaboration 
with the other Commissioners and the General Counsel. In this capacity, 
I also co-authored and coordinated the development of the National 
Enforcement Plan, a fundamental document setting forth the vision for 
the agency.
    At EEOC, the vast majority of the work enforcing the discrimination 
laws occurs in the field. In 1998, I moved to the Phoenix District 
Office and enforce civil rights law on the front lines as a Trial 
Attorney. This gave me a greater appreciation of the actual work 
performed by the agency despite its limited resources, and helped put 
into context the numerous policy discussions that occurred in 
Headquarters. Moreover, the first-hand experience enforcing civil 
rights laws has been invaluable to understanding the critical 
components of the EEOC's law enforcement responsibilities from intake 
through conciliation and from discovery through trial.
    I have also served as Supervisory Trial Attorney, managing a team 
of trial attorneys and support staff. In this capacity, I have stressed 
teamwork and professional commitment to the Agency's work. My 
experience from Headquarters and as a Trial Attorney has enabled me to 
provide leadership and guidance to the team of attorneys that I manage.

    Question 7. Please explain any ideas you have considered on how to 
reduce the backlog while maintaining quality.
    Answer 7. If confirmed as General Counsel, I will not have direct 
authority over the reduction of the charge inventory. However, the 
Priority Charge Handling Procedures envision a collaborative approach 
between the Office of Field Programs and the Office of General Counsel 
to implement its goals. These procedures are premised on the view that 
if charges are prioritized at the early stages, the agency will be able 
to manage the charge inventory and develop cases for litigation. The 
EEOC has had some success with these efforts, but over the recent years 
the inventory has continued to grow. I believe that this has been due 
in large part to staffing issues.
    If confirmed, I will work with the Commission and Director of the 
Office of Field Programs to revitalize the Priority Charge Handling 
Procedures and ensure that new staff are effectively trained on these 
procedures. It is important that attorneys in the field are trained 
properly in the early identification of potential litigation vehicles 
and systemic or policy issues. This will ensure that the EEOC's limited 
resources are devoted to the most important charges.

    Question 8. Please explain the decisionmaking process you will 
undertake, if confirmed, when determining how to dispose of a case 
presented to you.
    Answer 8. If confirmed, I will continue to apply many of the 
factors I used as a Supervisory Trial Attorney and Trial Attorney to 
determine whether to recommend a case for litigation. These include: 
(1) assessing the credibility of the charging party and the key 
witnesses; (2) examining issues of law related to liability and 
damages; (3) evaluating the quality and admissibility of evidence; (4) 
evaluating potential impact of the case with respect to an industry or 
geographical region; (4) determining the scope of likely monetary and 
non-monetary damages; and (5) evaluating the appropriate circuit law to 
identify any problem or developing areas; and examine conciliation of 
case. If confirmed, this analysis will be conducted in the context of 
national or regional litigation developments and priorities.

    Question 9. What changes do you believe are necessary to improve 
training of EEOC staff generally, as well as training related to the 
need to reduce the backlog?
    Answer 9. If confirmed, I will evaluate the training needs in 
consultation with other attorneys in the agency. Over the last 3 years 
the Office of General Counsel has made enormous strides to improve the 
training to the field. OGC has worked collaboratively with the Office 
of Field Programs to improve this training and has evaluated the 
success of this training on an ongoing basis. The training included the 
increased use of the ``webinar,'' a training system that permits 
nationwide interactive training from an employee's desktop; regional 
training; and case-based training. This is a wonderful foundation on 
which to build. If confirmed, I would also be interested in exploring 
the best ways in which to leverage technology to conduct national or 
regional debriefings on significant trials, resolutions, and appellate 
arguments. As a former trial attorney, I have found the ``reverse 
engineering'' of our successes and failures is an extremely useful tool 
for collecting and disseminating lessons learned. I believe this should 
be done on a broader basis.
    With respect to reduction of backlog, if confirmed, I will evaluate 
whether additional training is necessary with respect to reaffirmation 
of the charge priority handling procedures, generally, and legal/
enforcement collaboration to identify cases, specifically.

    Question 10. Do you think the charge system needs to be revamped to 
improve the intake process?
    Answer 10. If confirmed as General Counsel, I will not have direct 
authority over the intake process. However, as discussed above, the 
invigoration of the Priority Charge Handling Procedures requires the 
early prioritization of cases, including potential litigation vehicles. 
If confirmed, I will advocate for early identification of litigation 
vehicles, including the identification of class or systemic issues, at 
the intake stage.

    Question 11. What does the phrase: ``Congress shall make no law 
respecting an establishment of religion, or prohibiting the free 
exercise thereof,'' mean to you with respect to the free exercise of 
religion?
    Answer 11. This language enshrines freedom of religion, one of the 
core values that make this country great.
    Title VII of the Civil Rights Act of 1964 also codifies this value 
and requires that an employer reasonably accommodate sincerely-held 
religious beliefs unless such an accommodation results in undue burden 
to the employer.
    As an attorney, I have prosecuted several cases under title VII's 
reasonable accommodation provisions and of their relationship to these 
core principles of religious freedom and tolerance; I regard these as 
some of the most important cases I have handled. For instance, I was 
part of a trial team that brought a case on behalf of an Evangelical 
Protestant who was fired for participating in a Bible study group with 
other restaurant employees, off the clock and outside of the workplace. 
The employer argued its anti-fraternization policy prohibited the Bible 
study; the EEOC argued that the employer should have exempted her from 
the policy to allow Bible study and prayer. I also successfully tried 
another case against Alamo Rental Car for denying a Muslim employee's 
request to keep her hair covered during Ramadan; further, I resolved a 
virtually identical case involving a Jewish employee who was suspended 
by Blockbuster for allegedly violating its prohibition against head 
gear when he refused to remove his yarmulke. For me, these cases 
reaffirm the importance of religious tolerance in matters of conscience 
embodied in the First Amendment and promoted by title VII.

    Question 12. Do you understand the First Amendment religious 
liberty protection to include the right of a health care worker to not 
have to perform or support the performance of an abortion as a 
condition of employment? What about a healthcare provider in a pharmacy 
refusing to dispense an abortifacient drug as a condition of 
employment?
    Answer 12. Analyzing the question under Title VII of the Civil 
Rights Act of 1964, an employer would be obligated to accommodate the 
employee's sincerely-held religious beliefs including the refusal to 
engage in any activities contrary to his or her religious conscience, 
unless doing so would impose an undue burden on the employer. The U.S. 
Supreme Court ruled that undue burden involves more than de minimis 
cost. Determining whether a refusal to perform an abortion or to 
dispense arbortifacient drugs may result in an undue hardship to an 
employer is a fact-specific question. As stated in Section 12 of the 
EEOC Compliance Manual:

          ``The determination of whether a particular proposed 
        accommodation imposes an undue hardship `must be made by 
        considering the particular factual context of each case.' 
        Relevant factors may include the type of workplace, the nature 
        of the employee's duties, the identifiable cost of the 
        accommodation in relation to the size and operating costs of 
        the employer, and the number of employees who will in fact need 
        a particular accommodation.''

    Question 13. Have you considered, or have any interest in changing, 
modifying, or revoking Section V of the National Enforcement Plan?
    Answer 13. No. I do not believe Section V of the National 
Enforcement Plan should be revoked. However, if confirmed, once I have 
had time to examine the litigation nationally and the views of other 
components of the Commission, I will be able to evaluate whether any 
modifications might be appropriate.
    Under the National Enforcement Plan (NEP), the Commission delegated 
significant litigation authority to the Office of General Counsel (OGC) 
and the field. Delegation was designed to empower staff at the lowest 
appropriate level coupled with the elimination of unnecessary layers of 
review. In Section V of the NEP, the Commission delegated litigation 
authority to the General Counsel ``[w]ith the goals of increasing 
strategic enforcement for the General Counsel and field attorneys, 
freeing the Commission to focus on policy issues, and increasing the 
efficiency and effectiveness of [the Commission's] litigation 
program.'' Section V delegates to the General Counsel litigation 
authority of all cases except: (a) Cases involving a major expenditure 
of resources; (b) Cases which present issues in a developing area of 
law where the Commission has not adopted a position through regulation, 
policy guidance, Commission decision, or compliance manuals; (c) Cases 
which are likely to create public controversy; and (d) All 
recommendations in favor of Commission participation as amicus curiae. 
OGC, in turn, delegated some litigation authority to the field.
    In my view, this current delegation has realized the original goals 
of eliminating additional and unnecessary layers of review, increasing 
efficiency and empowering attorneys in the field. Prosecutorial 
decisions on smaller and non-policy cases have been delegated to the 
actual litigators in the field. This delegation has been, for the most 
part, a success. The exhaustive memoranda required previously for 
Commission review of routine litigation matters and the periodic delays 
required to respond to Commission inquiries created unnecessary delays 
and diverted limited field resources from other enforcement activities. 
Delegation freed up OGC to make litigation decisions relatively quickly 
and for sound prosecutorial reasons and, in my view, strengthened the 
EEOC as a law enforcement agency.
    While the system of delegation embodied by the NEP may be 
imperfect, delegation reduces the risk that the EEOC will compromise 
enforcement opportunities as additional layers in the Commission 
hierarchy review the litigation recommendation. If confirmed, I will 
address any problems arising from the delegation of litigation 
authority on a case-by-case and office-by-office basis to ensure good 
litigation decisions are made and that, as an institution, we learn 
from any mistakes.
    As importantly, if confirmed, I will consult regularly with the 
Commission to ensure the Commission has an understanding of the 
litigation docket and to collaboratively identify any issues that might 
require greater Commission involvement, such as those cases potentially 
implicating undeveloped legal issues or creating public controversy. If 
confirmed, as part of the integrated team approach, I will make it an 
important priority to advise the Chair and Commissioners about the 
litigation program on an ongoing basis so that the Commission will be 
able to make sound policy decisions and be able to communicate 
effectively to the public about the many law enforcement successes 
achieved through the diligent work of its appellate and trial lawyers 
in the field.

    Question 14. Do you believe it is employment discrimination for a 
school principal to reassign to a high-school teaching position a 
kindergarten teacher who is undergoing a transgender sex change because 
the principal is concerned that kindergartners are not mature enough to 
deal with their teacher's transformation?
    Answer 14. Most courts have held that discrimination against 
transgendered individuals is not prohibited by title VII. However, some 
courts have construed title VII's prohibition against sex 
discrimination to prohibit taking adverse action against an applicant 
or employee based on ``gender stereotyping'' and one district court has 
found that discrimination against a transgendered individual may be 
``because of sex.'' In very limited circumstances, therefore, courts 
have held that title VII can be violated if an employer discriminates 
against a transgendered individual. More facts would be necessary to 
determine whether the action described in this question could possibly 
violate title VII.

    Question 15. Do you understand title VII to already prohibit sexual 
orientation discrimination?
    Answer 15. No.

    Question 16. If a State enacted a law or regulation requiring 
medical professionals to assist their patients in euthanasia, would 
Federal law provide any protections for the rights of conscience of 
these medical professionals?
    Answer 16. Examining the question under title VII, an employer 
should accommodate a medical professional's sincerely-held religious 
beliefs or practices unless such a refusal would result in an undue 
hardship to the individual's employer.
    As noted, I have prosecuted many cases involving the reasonable 
accommodation of religious beliefs. When I was with the Department of 
Justice, I was assigned the prosecution of a case involving a Jehovah's 
Witness bus driver who refused, as a matter of a deeply held religious 
conscience, to sign the State-mandated loyalty oath. It was our 
position that exempting the individual from complying with the State 
statute was a reasonable accommodation that would not unduly burden the 
school district. This case was successfully resolved.

    Question 17. Please explain any litigation priorities you've 
considered or have interest in implementing.
    Answer 17. If confirmed, I will work in consultation with the Chair 
and the Commission to set litigation priorities. As an attorney for the 
EEOC and the U.S. Department of Justice, I have prosecuted 
discrimination cases under all of the relevant statutes, and I have 
seen the devastation discrimination, in all its forms, has on workers 
and their families. In my view, there is no form of discrimination that 
is more or less damaging or more or less deserving of attention by the 
agency. If confirmed, I will work in consultation with the Chair, the 
Commission, and other components of the agency to set litigation 
priorities.

    Question 18. Have you considered or have any interest in changing, 
modifying, or revising the Regional Attorney's Manual.
    Answer 18. I have not had the opportunity to survey the attorneys 
in the field or headquarters to determine whether others have specific 
suggestions for modifying or supplementing the Regional Attorney's 
Manual. If confirmed, however, I expect to conduct an in depth review 
of OGC's processes and procedures, including the RA Manual, to 
determine if there needs to be changes, additions, modifications or 
deletions.

    [Whereupon, at 11:30 a.m., the hearing was adjourned.]

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