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80–892 PDF 2013

EXAMINING THE REGULATORY AND 

ENFORCEMENT ACTIONS OF THE 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, MAY 22, 2013 

Serial No. 113–19 

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

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Tom Price, Georgia 

Kenny Marchant, Texas 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Susan W. Brooks, Indiana 

Richard Hudson, North Carolina 

Luke Messer, Indiana 

George Miller, California, 

Senior Democratic Member 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Rush Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

John A. Yarmuth, Kentucky 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Juliane Sullivan, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

John Kline, Minnesota 

Tom Price, Georgia 

Duncan Hunter, California 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Richard Hudson, North Carolina 

Joe Courtney, Connecticut, 

Ranking Member 

Robert E. Andrews, New Jersey 

Timothy H. Bishop, New York 

Marcia L. Fudge, Ohio 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Suzanne Bonamici, Oregon 
(III) 

C O N T E N T S 

Page 

Hearing held on May 22, 2013 ............................................................................... 1 

Statement of Members: 

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

Prepared statement of ............................................................................... 6 

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

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

Statement of Witnesses: 

Berrien, Hon. Jacqueline A., Chair, U.S. Equal Employment Opportunity 

Commission ................................................................................................... 7 

Prepared statement of ............................................................................... 9 

Additional Submissions: 

Ms. Berrien: 

EEOC report, ‘‘Strategic Plan for Fiscal Years 2012–2016,’’ Internet 

address to ............................................................................................... 51 

EEOC report, ‘‘Strategic Enforcement Plan FY 2013–2016,’’ Internet 

address to ............................................................................................... 51 

Response to questions submitted for the record from: 

Hudson, Hon. Richard, a Representative in Congress from the 

State of North Carolina .................................................................. 70 

Chairman Walberg ............................................................................. 56 

Attachment to response submitted for the record .................................. 72 

Mr. Courtney: 

Letter, dated May 21, 2013, from the American Association of Retired 

Persons ................................................................................................... 26 

Letter, dated May 21, 2013, from the Leadership Conference on 

Civil and Human Rights, National Partnership for Women & Families ........................................................................................................... 27 

The National Council of EEOC Locals, No. 216, AFGE/AFL–CIO, 

prepared statement of ........................................................................... 35 

Letter, dated Jan. 18, 2013, from Lawyers’ Committee for Civil 

Rights Under Law ................................................................................. 38 

Mr. Hudson, questions submitted for the record ........................................... 55 

Chairman Walberg: 

Letter, dated June 6, 2013, from the U.S. Chamber of Commerce ....... 30 

Questions submitted for the record ......................................................... 51 

(1) 

EXAMINING THE REGULATORY AND 

ENFORCEMENT ACTIONS OF THE EQUAL 

EMPLOYMENT OPPORTUNITY COMMISSION 

Wednesday, May 22, 2013 

U.S. House of Representatives 

Subcommittee on Workforce Protections 

Committee on Education and the Workforce 

Washington, DC 

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

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

Present: Representatives Walberg, Kline, Bucshon, Courtney, 

Sablan, and Bonamici. 

Also present: Representative Brooks. 

Staff present: Katherine Bathgate, Deputy Press Secretary; 

Owen Caine, Legislative Assistant; Molly Conway, Professional 

Staff Member; Ed Gilroy, Director of Workforce Policy; Benjamin 

Hoog, Legislative Assistant; Marvin Kaplan, Workforce Policy 

Counsel; Nancy Locke, Chief Clerk; Donald McIntosh, Professional 

Staff Member; Brian Newell, Deputy Communications Director; 

Krisann Pearce, General Counsel; Molly McLaughlin Salmi, Deputy 

Director of Workforce Policy; Mandy Schaumburg, Education and 

Human Services Oversight Counsel; Nicole Sizemore, Deputy Press 

Secretary; Alissa Strawcutter, Deputy Clerk; Juliane Sullivan, 

Staff Director; Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; John D’Elia, Minority Labor Policy Associate; Daniel Foster, Minority Fellow, Labor; Eunice Ikene, Minority Staff Assistant; 

Leticia Mederos, Minority Senior Policy Advisor; Megan O’Reilly, 

Minority General Counsel; Michele Varnhagen, Minority Chief Policy Advisor/Labor Policy Director; and Michael Zola, Minority Deputy Staff Director. 

Chairman WALBERG. A quorum being present, the committee will 

come to order. Good morning to everyone. 

This certainly is a great opportunity for a hearing today that has 

not taken place for an awful long time, and so I am glad that we 

are involved with it this morning. 

Chair Berrien, we are pleased to see you here today. It has been 

a long time since the committee convened a hearing to examine the 

policies and priorities of Equal Employment Opportunity Commission and we are grateful you have joined us and thank you for your 

service to our country. 

Ms. BERRIEN. Thank you. 
2 

Chairman WALBERG. Republicans and Democrats share the same 

goal. I think I can say this without a doubt. 

We want to ensure the American people work in an environment 

free of discrimination. Whether or not an individual succeeds in a 

workplace should be determined by merit and hard work, not the 

unlawful prejudice of their boss. 

For most employers, a person’s skills and drive to succeed are 

what matter most. However, as always, bad actors will put personal bigotries before the talent and dedication of American workers. This is wrong. 

A recent case out of Davenport, Iowa, provides a stunning example of this difficult reality. According to reports, 32 men with intellectual disabilities were subjected to abuse and discrimination. The 

deplorable treatment these men faced included verbal and physical 

harassment, substandard living conditions, and inadequate medical 

care. 

EEOC is to be applauded for helping to bring those who committed these heinous acts to justice. 

Federal laws prohibiting employment discrimination should be 

vigorously and fairly enforced. That is why we are here today. 

There has been a significant shift in both the enforcement and 

regulatory priorities in the EEOC in recent years. It is our responsibility to ask tough questions to ensure agency policies are in the 

best interests of workers and employers. 

For example, does it serve the best interests of workers and employers when EEOC investigates businesses without evidence of 

wrongdoing? 

The agency has set a goal that up to 24 percent of all litigated 

cases be systemic in nature. At times these investigations are 

launched without any employee alleging discrimination. Meanwhile, a backlog of more than 70,000 discrimination claims by 

workers continues to plague the commission. 

At a time of high unemployment and record federal debt, every 

job and every dollar counts. We should not be diverting scarce resources away from workers who believe they have been harmed in 

order to follow a hunch. And we should not be dragging our nation’s job creators through unnecessary and costly investigations 

without a factual basis of wrongdoing. 

Does it also serve the best interests of workers and employers 

when the full weight of the agency’s litigation power is ceded to one 

individual? 

Congress created a commission of 5 members to ensure accountability within the agency. Yet for almost 20 years the commission 

has delegated the authority to the Office of General Counsel. Under 

only limited circumstances can the commission vote on the general 

counsel’s decision to intervene in litigation and these narrow exceptions are not always clear. 

As a result, the general counsel has almost complete control over 

EEOC’s enforcement agenda. This cannot be what Congress intended and it is having a real impact on the lives of workers. 

One case initiated by the general counsel was later rejected by 

a federal district judge. The judge described the commission’s actions as a, and I quote—‘‘sue first, ask questions later litigation 

strategy,’’ and noted that, and I quote again—‘‘dozens of potentially 
3 

meritorious sexual harassment claims may now never see the inside of a courtroom.’’ 

Finally, is it in the best interests of workers and employers when 

the commission pursues regulatory policies that may make workplaces less safe? 

In April 2012, EEOC revised its longstanding guidance on the 

use of criminal background checks. Should the background check 

reveal a criminal offense, employers will have to conduct an, and 

I quote—‘‘individual assessment’’ and identify a ‘‘business necessity’’ that merits denying individual employment. 

However, this proposal has already been criticized by one federal 

court. As one federal judge noted almost 25 years ago, quote—‘‘Obviously a rule refusing honest employment to convicted applicants 

is going to have a disparate impact upon thieves.’’ 

This policy also puts many employers at risk of running afoul of 

state or local laws that require background checks for certain positions of public trust, such as child care providers. Employers will 

bear the burden of any unintended consequences stemming from 

this regulatory change, not EEOC. Yet they and the public were 

denied an opportunity to comment on the proposal before it became 

final. 

Public meetings on broader topics isn’t the level of openness and 

transparency the American people deserve. Shouldn’t workers and 

employers have an opportunity to comment on public policy 

changes that affect their workplaces? 

Chair Berrien, these are serious questions that I hope we can 

discuss with you today. I know that it is a lot to address in one 

hearing. However, we hope this hearing starts a new, more open 

dialogue between the committee and the EEOC, and that is our responsibility as well as yours. 

As I noted earlier, we all share the same goal and only when we 

work together can we move closer toward that goal. 

Thank you again for being with us today. 

I will now recognize my distinguished colleague, Joe Courtney, 

the senior Democratic member of the subcommittee, for his opening 

remarks. 

[The statement of Chairman Walberg follows:] 

Prepared Statement of Hon. Tim Walberg, Chairman, 

Subcommittee on Workforce Protections 

Good morning everyone. Chair Berrien we are pleased to see you today. It has 

been a long time since the committee convened a hearing to examine the policies 

and priorities of the Equal Employment Opportunity Commission. We are grateful 

you’ve joined us and thank you for your service to our country. 

Republicans and Democrats share the same goal: We want to ensure the American people work in an environment free of discrimination. Whether or not an individual succeeds in a workplace should be determined by merit and hard work, not 

the unlawful prejudice of their boss. For most employers, a person’s skills and drive 

to succeed are what matter most. However, bad actors will put personal bigotries 

before the talent and dedication of America’s workers. 

A recent case out of Davenport, Iowa provides a stunning example of this difficult 

reality. According to reports, 32 men with intellectual disabilities were subjected to 

abuse and discrimination. The deplorable treatment these men faced included verbal 

and physical harassment, substandard living conditions, and inadequate medical 

care. EEOC is to be applauded for helping to bring those who committed these heinous acts to justice. 

Federal laws prohibiting employment discrimination should be vigorously and 

fairly enforced. That’s why we are here today. There has been a significant shift in 
4 

both the enforcement and regulatory priorities at EEOC in recent years. It is our 

responsibility to ask tough questions to ensure agency policies are in the best interests of workers and employers. 

For example, does it serve the best interests of workers and employers when 

EEOC investigates businesses without evidence of wrongdoing? The agency has set 

a goal that up to 24 percent of all litigated cases be systemic in nature. At times, 

these investigations are launched without any employee alleging discrimination. 

Meanwhile, a backlog of more than 70,000 discrimination claims by workers continues to plague the commission. 

At a time of high unemployment and record federal debt, every job and dollar 

counts. We should not be diverting scarce resources away from workers who believe 

they’ve been harmed in order to follow a hunch. And we should not be dragging our 

nation’s job creators through unnecessary and costly investigations without a factual 

basis of wrongdoing. 

Does it also serve the best interest of workers and employers when the full weight 

of the agency’s litigation power is ceded to one individual? Congress created a commission of five members to ensure accountability within the agency. Yet for almost 

20 years the commission has delegated that authority to the Office of General Counsel. Under only limited circumstances can the commission vote on the general counsel’s decision to intervene in litigation and these narrow exceptions are not always 

clear. 

As a result, the general counsel has almost complete control over EEOC’s enforcement agenda. This cannot be what Congress intended and it’s having a real impact 

on the lives of workers. One case initiated by the general counsel was later rejected 

by a federal district judge. The judge described the commission’s actions as a ‘‘sue 

first, ask questions later litigation strategy’’ and noted that ‘‘dozens of potentially 

meritorious sexual harassment claims may now never see the inside of a courtroom.’’ 

Finally, is it in the best interests of workers and employers when the commission 

pursues regulatory policies that may make workplaces less safe? In April 2012, 

EEOC revised its long-standing guidance on the use of criminal background checks. 

Should the background check reveal a criminal offense, employers will have to conduct an ‘‘individual assessment’’ and identify a ‘‘business necessity’’ that merits denying the individual employment. 

However, this proposal has already been criticized by one federal court. As one 

federal judge noted almost 25 years ago, ‘‘Obviously a rule refusing honest employment to convicted applicants is going to have an disparate impact upon thieves.’’ 

This policy also puts many employers at risk of running afoul of state or local 

laws that require background checks for certain positions of public trust, such as 

child care providers. Employers will bear the burden of any unintended consequences stemming from this regulatory change, not EEOC. 

Yet they and the public were denied an opportunity to comment on the proposal 

before it became final. Public meetings on broader topics isn’t the level of openness 

and transparency the American people deserve. Shouldn’t workers and employers 

have an opportunity to comment on policy changes that affect their workplaces? 

Chair Berrien, these are serious questions that I hope we can discuss with you 

today. I know that is a lot to address in one hearing. However, we hope this hearing 

starts a new, more open dialogue between the committee and EEOC. As I noted earlier, we all share the same goal and only when we work together can we move closer 

toward that goal. Thank you again for being with us today. 

I will now recognize my distinguished colleague Joe Courtney, the senior Democratic member of the subcommittee, for his opening remarks. 

Mr. COURTNEY. Well, good morning, Mr. Chairman. I want to 

thank you for calling today’s hearing to put the spotlight on the important work of the Equal Employment Opportunity Commission, 

and particularly under the leadership of Chairman Jacqueline 

Berrien, who is here today. 

This is the first time we have actually invited the chairwoman 

to the House in the last 3 years, so again, I want to applaud the— 

you know, this action today to, again, start a dialogue with our 

subcommittee on the important work that the Equal Employment 

Opportunity Commission engages in every single day. The work of 
5 

the EEOC is critical, particularly when we look at the challenges 

facing the unemployed in our nation. 

Even as the economy has improved, with 7.5 percent unemployment rate last month, the unemployment gap has remained high 

for minorities. For African Americans it was 13.2 percent and for 

Latinos, 9 percent in April. And we know, as labor economists and 

experts point to, that discrimination remains one of the factors for 

that disparity. 

Every worker in this country, whether a job applicant or an employee, deserves the right to be treated fairly in the workplace and 

judged based upon the ability to do the job. The foundation of our 

civil rights laws is to ensure that all Americans have the opportunity to participate in society, to provide for themselves and their 

families, and to contribute to the economy. 

Unfortunately, far too often workers are not hired or are paid 

less or fired from their jobs because they are a woman, or a pregnant woman, or an African American, or have a disability. The 

EEOC plays an essential role in ensuring fairness and equal opportunity in the workplace through its enforcement of our federal laws 

that make it illegal to discriminate against an employee or job applicant because of that person’s race, color, religion, sex, national 

origin, age, disability, or genetic information. 

Despite these protections, nearly 100,000 new charges of discrimination were filed with the EEOC last year, and despite the 

commission’s efforts to achieve resolutions in these cases, they continue to have a backlog, which stands to grow as a result of budget 

cuts and sequester, and that sequester chainsaw has hit the EEOC 

just like it has so many other agencies of our government. 

Congress has a responsibility to the nation’s workers to ensure 

that should they become a victim of workplace discrimination, that 

they have a place to seek justice. I am proud that during the 

Democratic-led 110th and 111th Congress, under the leadership of 

Speaker Pelosi, we made critical improvements to our nation’s civil 

rights laws through the enactment of the Americans with Disabilities Act amendments and the Genetic Information Nondiscrimination Act, and also passage of the Lilly Ledbetter Fair Pay Act, 

which restored the law to what it was prior to the misguided Supreme Court decision in Ledbetter v. Goodyear. And in almost 

every single instance, those three laws were enacted with large bipartisan majorities, so it does show that there really is, I think, 

concern on both sides of the aisle to make sure that we do better 

to make a more perfect union, as Lincoln said, in terms of a fair 

workplace. 

But despite the progress that we have made there is still much 

left to be done, and I believe there are many issues where Democrats and Republicans can join together again to strengthen our 

civil rights laws. The Employment Nondiscrimination Act, which I 

am proud to cosponsor, would prohibit discrimination in the workplace because of someone’s sexual orientation or gender identity. 

Again, that was recently introduced in both the House and the Senate with both Democratic and Republican cosponsors. 

And I urge both chairmen—and I see Mr. Kline here today—to 

work with Representatives Polis and Ros-Lehtinen to build bipar-
6 

tisan sponsors in the House to bring this long overdue legislation 

back before the committee for its immediate consideration. 

I would also urge both chairmen to work with us on the Protecting Older Americans Against Discrimination Act. This legislation has been modified since it was originally brought before the 

committee under the prior chairman, Chairman Miller’s, time as 

leader and is now a bipartisan bill, sponsored by Senators Grassley 

and Harkin in the Senate. I believe we, too, could find common 

ground on this bill to protect our nation’s older workers. 

And finally, the Paycheck Fairness Act, which has been passed 

twice by this House, again on a strong bipartisan basis, should be 

brought up for immediate consideration so that gender-based pay 

discrimination is finally put on an equal footing with our other civil 

rights laws. 

Mr. Chairman, again, I want to thank you for holding this hearing. I am confident that we can find opportunities to work together 

to strengthen our nation’s civil rights laws and have this subcommittee lead the way. 

I also want to thank, again, Chair Berrien for being with us 

today and thank her for her dedication, her hard work on behalf 

of our nation’s workers. 

And I yield back. 

[The statement of Mr. Courtney follows:] 

Prepared Statement of Hon. Joe Courtney, Ranking Member, 

Subcommittee on Workforce Protections 

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

examine the important work the Equal Employment Opportunity Commission is undertaking through the leadership of the Commission’s chair Jacqueline Berrien. 

Chair Berrien, I want to thank you for being with us today to update the subcommittee on the work of the EEOC. 

The work of the EEOC is critical, particularly when we look to the challenges facing the unemployed in our nation. Even as the economy has improved, with 7.5 unemployment rate last month, the unemployment gap has remained high for minorities—for African Americans, it was 13.2 percent and for Latinos, 9.0 in April. And 

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

of factors for the disparity. 

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

right to be treated fairly in the workplace and judged based upon ability to do the 

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

opportunity to participate in society, to provide for themselves and their families, 

and to contribute to the economy. 

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

jobs because they are a woman, or a pregnant woman, or an African American or 

have a disability. 

The EEOC plays an essential role in ensuring fairness and equal opportunity in 

the workplace through its enforcement of our federal laws that make it illegal to 

discriminate against an employee or job applicant because of that person’s race, 

color, religion, sex, national origin, age, disability or genetic information. 

Despite these protections, nearly 100,000 new charges of discrimination were filed 

with the EEOC last year. And despite the Commission’s efforts to achieve resolutions in these cases, they continue to have a backlog which stands to grow as a result of budget cuts and sequester. 

Congress has a responsibility to this nation’s workers to ensure that should they 

become a victim of workplace discrimination, they have a place to seek justice. 

I’m proud that the Democratic—led 110th and 111th Congresses, under the leadership of Speaker Nancy Pelosi, made critical improvements to this nation’s civil 

rights laws through the enactment of the Americans with Disabilities Act Amendments and the Genetic Information Nondiscrimination Act. Also, passage of the Lilly 

Ledbetter Fair Pay Act restored the law to what it was prior to the misguided Supreme Court decision in Ledbetter vs. Goodyear. 
7 

Despite the progress we have made, there is still much left to be done. And I believe there are many issues where Democrats and Republicans can join together to 

strengthen our civil rights laws. 

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

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

gender identity was recently introduced in both the House and Senate with both 

Democratic and Republican co-sponsors. 

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

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

I would also urge Chairmen Walberg and Kline to work with us on the Protecting 

Older Workers Against Discrimination Act. This legislation has been modified since 

it was originally brought before the Committee under Chairman Miller’s leadership 

and is now a bipartisan bill sponsored by Senators Grassley and Harkin in the Senate. I believe we too could find common ground on this bill to protect this nation’s 

older workers. 

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

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

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

civil rights laws. 

Mr. Chairman, I want to thank you again for holding this hearing. I am confident 

we can find opportunities to work together to strengthen this nation’s civil rights 

laws. I also want to once again thank Chair Berrien for being before us today and 

thank her for her dedication and hard work on behalf of this nation’s workers. 

Chairman WALBERG. I thank the gentleman. 

Pursuant to committee rule 7(c), all members will be permitted 

to submit written statements to be included in the permanent 

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

record, and other extraneous materials referenced during the hearing to be submitted in the official hearing record. 

It is now my pleasure to introduce our distinguished witness. 

The Honorable Jacqueline Berrien is the chair of the Equal Employment Opportunity Commission in Washington, D.C. Chair 

Berrien has a distinguished career, including over 15 years of practicing civil rights law. She has served as a program officer for the 

Ford Foundation’s Peace and Social Justice program and the associate director counsel at the NAACP Legal Defense and Educational Fund. 

Chair Berrien received her B.A. in government from Oberlin College and her J.D. from the Harvard Law School. 

Welcome. 

Before I recognize you to provide testimony, I think you know the 

fire drill with the lights. 

Ms. BERRIEN. Yes. 

Chairman WALBERG. Yellow light gives you a minute left, and 

then screech to a halt as quickly as possible at red. But we do want 

to hear your comments. Our committee will be held to those same 

5 minutes. 

But without any further information to share, we welcome your 

comments. 

STATEMENT OF HON. JACQUELINE A. BERRIEN, CHAIR, 

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 

Ms. BERRIEN. Thank you very much, Chairman. 

Mr. Chairman, good morning. 

Mr. Chairman Kline, good morning. 
8 

Mr. Ranking Member Courtney, good morning, and all members 

of the subcommittee. 

I thank you for inviting me to testify today on behalf of the 

Equal Employment Opportunity Commission. As I have shared 

with the staff of our agency many times, including in the visits 

that I have made to more than half of our 53 offices since my tenure began in 2010, one of my most important responsibilities and 

greatest privileges is meeting with Members of Congress to share 

news about agency accomplishments and report on our efforts to 

serve the public and enforce the nation’s laws prohibiting employment discrimination. 

I have served as chair of the EEOC since April 2010 together 

with Commissioners Constance Barker, Chai Feldblum, and Victoria Lipnic. Last week Commissioner Jenny Yang was sworn in as 

our newest member, so we are now operating again with a full 

complement of commissioners. 

In a few months this nation will pause to reflect on the 50th anniversary of the March for Jobs and Justice, which occurred just a 

little distance from this building on the Mall. Many years and 

marches later, that day in August 1963 has such an extraordinary 

impact on our history and was such an extraordinary moment in 

this nation that it is still referred to as The March on Washington. 

The people who assembled here that day, including my father 

with me as a toddler in tow, left an indelible imprint on the history 

of the United States of America—one that I think we are all proud 

of as a nation. 

The EEOC was created less than a year after that march with 

the passage of the Civil Rights Act of 1964, so I consider it a tremendous blessing and privilege to be responsible for stewardship of 

the EEOC and its resources today. And I thank you for the opportunity to appear before you today to discuss the plans, challenges, 

and needs of the EEOC. 

Thank you all for your support of the EEOC and its work and 

I look forward, as I have said in many meetings with individual 

members of this body over the past few years—I look forward to 

continuing to work with you and all Members of Congress and all 

people in this nation who are committed to advancing the mission 

of the EEOC to end and remedy unlawful employment discrimination. 

As I start my testimony, or as I move forward, I would like to 

just highlight a few things about the EEOC—a few very basic 

points that I think provide the backdrop for today’s discussion. 

Despite resource constraints and rising demand for the services 

of the EEOC, the men and women of our agency have labored 

mightily and worked diligently to mitigate the impact of the sequester on the people we serve. I greatly appreciate their service 

and recognize that many workplaces, job seekers, and employers 

have been positively impacted by the work of the EEOC. 

I am pleased to report to you today that over the past 2 fiscal 

years, despite budgetary constraints and receipt of record numbers 

of new discrimination charges, the EEOC has been able to resolve 

more charges than we have received each year. 

As a result, the unresolved private sector charge inventory of the 

EEOC, which some also say—or refer to as a backlog, has been re-
9 

duced. It has been reduced nearly 20 percent since fiscal year 2010. 

That is a significant accomplishment, and indeed, it is the first 

time in nearly a decade that the agency has made that progress in 

resolving charges of discrimination and reducing the number of unresolved charges of discrimination. 

As I said to your Senate colleagues during my confirmation hearing, I recognize fully, as one who has been an advocate for and representative of people who have experienced discrimination, that our 

unresolved charges of discrimination represent potential instances 

where justice is denied because of delay. So I take very seriously 

my responsibility and the agency’s responsibility to address those 

unresolved charges, and that is why I made that one of the priorities during my tenure as chair of the EEOC. 

But significantly, neither the laws that we enforce nor the priorities—set not only by this commission, but by our colleagues across 

history of the agency and across parties—have recognized this 

agency has multiple tools at its disposal to address the continuing 

problem of unlawful employment discrimination and we have 

availed ourselves fully of them. And our strategic plan, which was 

adopted last year, and our strategic enforcement plan, also adopted 

last year, detail more fully some of the ways that we deploy those 

resources and those tools that are available to stop and remedy unlawful employment discrimination. 

Our strategic plan has three objectives: combating employment 

discrimination through strategic law enforcement, preventing employment discrimination through education and outreach, and delivering excellent and consistent service through a skilled and diverse workforce and effective systems. We are dedicated and focused, as an agency and as a commission, to ensuring that all of 

those objectives are met, all with the goal of advancing the very, 

very important mission of the EEOC. 

Our strategic plan communicates to our staff, our stakeholders, 

and to the general public that we are committed to making the 

most strategic use of resources, intensifying and enhancing our efforts to prevent unlawful discrimination in the workplace, and ensuring that we serve the public well. 

I appreciate this opportunity. I look forward to any questions 

that you may have—any member of the committee may have about 

the work of the agency. 

And again, thank you for inviting me to testify today. 

[The statement of Ms. Berrien follows:] 

Prepared Statement of Hon. Jacqueline A. Berrien, Chair, 

U.S. Equal Employment Opportunity Commission 

Good afternoon Mr. Chairman, Mr. Ranking Member, and Members of the Subcommittee. Thank you for inviting me to testify today on behalf of the Equal Employment Opportunity Commission (EEOC). The EEOC is a five-member bipartisan 

commission responsible for the enforcement of federal employment anti-discrimination laws. I have served as Chair of the EEOC since April 2010 with Commissioners 

Constance Barker, Chai Feldblum, and Victoria Lipnic. I’m pleased to let you know 

that, just last week, Commissioner Jenny Yang was sworn in as our newest member, so we are now operating with a full complement of Commissioners. 

I appreciate the opportunity to appear before you to discuss the plans, challenges, 

and needs of the EEOC. It has been a privilege to serve as Chair of the EEOC for 

the past three years, and it is an honor to represent the agency today and in the 

many meetings with individual members of Congress I have attended over the past 

few years. Thank you for your past support of the EEOC, and I look forward to con-
10 

tinuing to work with the members of this subcommittee and all members of Congress to advance the mission of the EEOC in the future. 

Fiscal realities 

Mr. Chairman, before I discuss the agency’s plans and accomplishments in greater 

detail, I would like to provide some context about the current state of the EEOC. 

I have always considered the careful and thoughtful stewardship of the agency’s resources to be one of my chief responsibilities, but that responsibility has become 

more important given the significant reductions to the EEOC’s budget in fiscal years 

2012 and 2013. 

Our agency, like all federal agencies today, faces many challenges. We are, first 

and foremost, an enforcement agency with limited resources. We must operate strategically to fulfill our enforcement responsibilities, engage in extensive outreach efforts to promote voluntary compliance, educate the public about the laws that we 

enforce, and work diligently to serve the public in the most efficient and effective 

manner possible. I am pleased to report that over the past two fiscal years we have 

been able to resolve more charges than we have received each year, which has led 

to a nearly 20 percent reduction in our pending inventory. We have also reduced 

the average processing time for Federal sector resolutions. 

Approximately 80 percent of the EEOC’s budget consists of fixed expenses of primarily payroll and rent. An additional 9-10 percent is dedicated to our partners and 

your constituents in state and local Fair Employment Practices Agencies, also 

known as FEPAs. Therefore, our fixed costs of approximately 90 percent of the agency’s budget leaves us with little discretion to shift additional resources to meet the 

increasing demands presented by the historically high number of private sector 

charges and federal sector complaints of discrimination. 

Like the rest of the Federal Government, the EEOC is also dealing with the 

across-the-board cuts required under sequestration. To meet the demands of sequestration, total programs and projects were reduced by 5 percent from the FY 2013 

appropriated level, which have required reductions in our programs, as well as employee furloughs of up to eight days. In an effort to reduce the impact on agency 

operations and staff, we plan to evaluate our budget situation after the first five 

days of furloughs to determine if the remaining three days are necessary. 

Throughout this process we are closely monitoring our operating plan for additional cost savings. There can be no doubt, however, that sequestration has made 

it more difficult to deliver the services Congress requires and the American people 

expect of the EEOC. The men and women of our agency have risen to the occasion, 

but there is no doubt that morale has been impacted. To this end, I have instructed 

all agency leaders to keep their staff well informed of the sequestration process and 

do what they can to mitigate the impact of the sequester on our employees and the 

people we serve. I also want to say here, publically, thank you to all of my colleagues at the agency, especially those on the front-lines in the field, for their great 

service to this nation. 

Strategic vision 

A little more than a year ago, the EEOC adopted a new Strategic Plan, which 

outlines three strategies to advance our mission of stopping and remedying unlawful 

employment discrimination. Our strategic objectives are: 

1. Combating employment discrimination through strategic law enforcement; 

2. Preventing employment discrimination through education and outreach; and 

3. Delivering excellent and consistent service through a skilled and diverse workforce and effective systems. 

EEOC’s Strategic Plan communicates to our staff, our stakeholders and to the 

general public that we are committed to making the most strategic use of our resources, intensifying and enhancing our efforts to prevent unlawful discrimination 

in the workplace, and ensuring that we serve the public well. It is through a strategic approach that we are striving to build ‘‘ONE EEOC’’—an agency that operates 

in a coordinated and seamless manner so that we are responsive to those who need 

our services and that our efforts have a tangible impact on the workplace. 

A strategic approach will also help the agency manage our charge and complaint 

inventory in the private, public and Federal sectors. Like my predecessor, Chair Gilbert Casellas, who led the Commission in adopting the Priority Charge Handling 

Procedures in 1995, and Chair Cari Dominguez, who led the Commission in adopting the recommendations of the Systemic Task Force, I have worked together with 

my Commission colleagues, the General Counsel and agency staff to ensure that we 

make the best use of available resources. The Strategic Plan furthers those efforts. 

The plan was developed with unprecedented opportunities for a wide range of 

stakeholders, EEOC staff, and interested members of the public to provide input. 
11 

We have continued to engage the public as we have entered strategic plan implementation, including during last year’s development of the Strategic Enforcement 

Plan and currently the Quality Control Plan for Investigations and Conciliations. 

Although the EEOC is in the early stages of implementing the new Strategic 

Plan, as detailed in our Fiscal Year 2012 Performance and Accountability Report, 

we have already begun to make meaningful progress toward more strategic and focused use of our resources. 

Strategic enforcement 

A key example of our progress is the Commission’s adoption of the Strategic Enforcement Plan. Informed by staff and public input and in keeping with our belief 

that we will execute our mission more efficiently and effectively by targeting specific 

issues of discrimination where federal enforcement is needed most and will have the 

greatest impact, the Commission identified six enforcement priorities: 

1. Eliminating barriers in recruitment and hiring; 

2. Protecting immigrant, migrant and other vulnerable workers; 

3. Addressing emerging and developing issues; 

4. Enforcing equal pay laws; 

5. Preserving access to the legal system; and 

6. Preventing harassment through systemic enforcement and targeted outreach. 

These priorities were reflected most recently in the EEOC’s successful litigation 

against Henry’s Turkey Service. Our agency secured a historic $240 million jury 

award for a group of 32 men with intellectual disabilities who were subjected to severe abuse, segregated housing, and other forms of harassment and discrimination 

over the course of more than two decades. This is the largest award in the EEOC’s 

history and is the second largest award ever in an employment discrimination case. 

It took years for our staff to investigate and successfully litigate this case, but because of that tenacity, we were able to restore the dignity of the workers in this 

case and send a strong message to all that the unlawful conduct in this case will 

not be tolerated in the United States. We were able to vindicate the right to work 

free from unlawful discrimination for all. 

The EEOC is also working collaboratively with other Federal agencies, including 

the Department of Labor’s Office of Federal Contract Compliance Programs 

(OFCCP) and the Department of Justice’s Civil Rights Division. EEOC has strengthened its longstanding Memorandum of Understanding with OFCCP to promote 

greater efficiency and coordination in support of the agencies’ shared mission of ensuring equal employment opportunity under Title VII of the Civil Rights Act of 1964 

and Executive Order 11246. EEOC is also partnering with DOJ to more effectively 

investigate violations of federal equal employment laws by state and local employers. 

Maximizing impact 

At many points in the EEOC’s history, the agency has prioritized directing agency 

resources to prevent and remedy practices that adversely impact many workers and 

job seekers. With the adoption of the Systemic Task Force’s recommendations in 

2006, the EEOC renewed its emphasis on systemic enforcement—those cases that 

involve policies or practices that affect multiple employees, an entire industry, an 

occupation, a profession, or an entire geographic area. While systemic cases are 

highly complex and resource-intensive, they typically affect a large number of employees or job-seekers directly. By increasing public awareness and changing company policies and industry standards, these cases also have indirect effects on untold numbers of others. 

To this end, both the Strategic Plan and Strategic Enforcement Plan reiterate the 

importance of systemic enforcement of priority issues. In FY 2012, the EEOC resolved 240 systemic investigations, securing monetary benefits of $36.2 million for 

3,813 individuals. 

Examples of systemic resolutions achieved through the conciliation process include a $5.4 million settlement for a class of women in Texas, Louisiana, Mississippi, Alabama, and Florida who sought, but were denied employment as temporary workers for the oil spill response in the Gulf during 2010. Another successful 

conciliation involved Pepsi Beverages (Pepsi), in which the company agreed to pay 

$3.13 million and provide job offers and training to resolve a charge of race discrimination. Based on the investigation, the EEOC found reasonable cause to believe that 

the criminal background check policy formerly used by Pepsi discriminated against 

African-Americans in violation of Title VII. Pepsi agreed to modify its background 

check policy and to report to the EEOC concerning implementation of its new policy. 

The agency has also seen continued success in its systemic litigation program. In 

the last fiscal year, the EEOC resolved 21 systemic cases, four of which included 
12 

at least 50 victims of discrimination. Just last month, the EEOC settled a systemic 

hiring discrimination case against Presrite Corporation for $700,000 and job offers 

for over 40 women. The lawsuit alleged that Presrite, a Federal contractor, consistently passed-over female applicants in favor of less-qualified males for entry-level 

positions at three Ohio plants. 

The largest litigation monetary recovery of FY 2012 was in EEOC v. Yellow 

Freight, where the EEOC secured an $11 million settlement for 300 victims of a racially hostile work environment at the Chicago trucking firm. Numerous employees 

complained to the company about hangmen’s nooses being displayed, racially offensive graffiti in the workplace, and other forms of race-based discrimination. Nevertheless, the company failed to correct these problems. In addition to obtaining monetary recovery, the settlement requires the company to retain consultants to examine 

its discipline and work assignment procedures and recommend changes to prevent 

unlawful discrimination in the future. 

In addition to prioritizing systemic enforcement, the Strategic Plan also sets forth 

a measure to ensure that more of our conciliations, consent decrees, and legal resolutions benefit not only the charging party but also current and future employees 

and job applicants by including equitable relief designed to end and prevent the recurrence of discrimination. 

Prevention through education and outreach 

In addition to traditional forms of administrative and legal enforcement, strategic 

law enforcement also requires consistent and innovative education and outreach efforts aimed at raising awareness amongst employers, employees, and job seekers 

about their rights and responsibilities under the laws the EEOC enforces. These efforts encourage voluntary compliance and are another cost-effective way to have the 

greatest impact on the workplace. 

To this end, prevention of unlawful discrimination through education and outreach is now clearly identified as a top priority for the agency in the Strategic Plan 

and Strategic Enforcement Plan. 

The agency is currently targeting outreach to vulnerable workers and underserved 

communities and to small and new businesses. The agency is also working quickly 

to update our guidance and other documents on the requirements of employment 

antidiscrimination law and make those materials more accessible and user-friendly 

to non-legal audiences and the general public. 

Again, though we are in the early stages of Strategic Plan implementation, we 

have already made significant progress in enhancing our outreach efforts. For example, even before the new plan took effect, I asked Commissioner Constance Barker 

to lead a Small Business Task Force. Already, the task force has identified mechanisms to improve our outreach to small businesses. 

Moreover, in the Federal sector, the EEOC issued two significant reports on the 

barriers facing African Americans and Asian American and Pacific Islanders in Federal employment to educate employees and managers about particular issues for 

these communities. 

Finally, the members of the Commission, the General Counsel, and many employees of the EEOC participate in events across the country in a continuing effort to 

inform the public about the laws that we enforce. In Fiscal Year 2012 alone, agency 

staff reached more than 350,000 people in thousands of no-cost and fee-based events 

held across the country; Commissioners Chai Feldblum and Vitoria Lipnic made 

joint presentations on the Americans with Disabilities Act to audiences in Seattle, 

Miami, Boston and Los Angeles; and all Commissioners and the General Counsel 

addressed bar associations, continuing legal education programs, and other events 

throughout the nation. Agency leadership also presented at EEOC-sponsored training programs. 

Serving the public more efficiently 

The third objective of the Strategic Plan is providing excellent service through a 

diverse and skilled workforce and effective systems. In this objective, we recognize 

the importance of ensuring that agency staff are equipped and prepared to deliver 

excellent service. This objective recognizes that the EEOC should strive for continued improvements in the timeliness and quality of enforcement activities in the private, state and local government, and Federal sectors. 

One of the agency’s greatest challenges has been, and continues to be, resolving 

discrimination charges filed by private and Federal sector employees and job seekers 

promptly, while at the same time ensuring that the rights of the charging parties 

and respondents receive appropriate attention and respect. Moreover, one of the 

overriding concerns among stakeholders has been improving the quality and efficiency of EEOC investigations. To address this concern, the EEOC’s Strategic Plan 
13 

calls for the creation of a Quality Control Plan for investigations and conciliations. 

The agency is currently developing this plan, and we have again solicited public 

input concerning improvements in the quality of service provided by the agency and 

engaged a diverse group of employees in advising the Commission. We expect a plan 

to be approved by the Commission this year. 

Effectively managing and ultimately reducing the inventory of unresolved charges 

remains an important goal for the EEOC. As noted earlier, since 2010, with the benefit of renewed investment in the staffing, training and technological needs of the 

EEOC, we have achieved a nearly 20 percent reduction in our inventory of unresolved charges. Moreover, the agency is no longer addressing this issue as a short 

term or episodic problem and is, instead, working to enhance and reinvigorate existing systems to address this challenge on a sustained basis. The adoption of our Strategic Enforcement Plan will also assist agency leaders and staff in the expeditious 

management and resolution of private sector discrimination charges by streamlining 

the number of priorities. While furloughs necessitated by sequestration will impact 

the Commission’s continued ability to slow the growth of our charge inventory in 

the short-term, setting clear priorities provides guidance to staff, helping them focus 

and expedite investigations, which will more effectively manage our charge inventory over the long-term. 

Finally, with respect to improving customer service, the EEOC’s Strategic Plan requires the Commission to make use of technology to improve communication by allowing the public to submit and receive more information electronically. As we have 

heard from employees and employers, streamlining the private sector charge filing 

system and making information about the status of pending charges accessible electronically will serve the interests of workers, employers, and the EEOC as we seek 

to make the best possible use of scarce resources. 

The EEOC continued its focus on expanding the use of technology to make the 

Federal hearings and appeals process faster and more effective. We have implemented an electronic file system, which is designed to allow Federal agencies the 

ability to securely submit electronic reports of investigation, complaint files, and 

other documents to the EEOC in support of the Federal hearings and appellate 

processes. This system is now available to all Federal agencies for their use in 

transmitting documents electronically to the EEOC. Currently, there are 21 parent 

agencies and 47 sub-agencies utilizing this technology for electronic document submission and receipt. 

Moving forward 

Despite these accomplishments, our rebuilding efforts are incomplete and the 

progress is fragile. Given the agency’s varied enforcement responsibilities, we are 

constantly challenged to meet the growing public demand for the services we provide. We are mindful of the need to identify ways to reduce spending and have 

worked diligently to cut costs that will not compromise or undermine our ability to 

fulfill our mission. EEOC employees have worked to improve operations, provide 

better service to the public and more effectively and efficiently enforce the Federal 

laws prohibiting employment discrimination. 

The EEOC requested a budget of $372.9 million for FY 2014, an increase of $12.9 

million from the FY 2012 appropriations. These resources are vital to maintaining 

the progress made in rebuilding the EEOC’s enforcement capacity. Our FY 2014 request will allow us to make continued progress on the charge inventory and in carrying out the agency’s critical work and priorities, including serving the public more 

efficiently and effectively and seeking to prevent discrimination through enhanced 

education and outreach. 

The EEOC is moving forward despite the fiscal challenges and demands we face. 

The agency is on track in implementing the goals of its Strategic Plan and making 

meaningful progress towards becoming ‘‘One EEOC.’’ 

Thank you for this opportunity to highlight some of our recent accomplishments, 

all of which are helping us to achieve our mission to stop and remedy unlawful employment discrimination. I look forward to working with you in the future and will 

be happy to answer any questions that you may have. 

Chairman WALBERG. Thank you, Ms. Berrien. 

And now will open for questions from the committee, and I recognize myself for 5 minutes of questions. 

As I mentioned in my opening comments, I am particularly concerned about the delegation of litigation authority to the general 

counsel of the EEOC. The December 2012 Strategic Enforcement 
14 

Plan delineated a list of situations in which a decisive—or—which 

a decision to commence or intervene in litigation must be brought 

to the commission for a vote. 

Specifically, I am concerned commissioners cannot force an opportunity to vote and there is no checks and balances system to ensure the full commission votes on important cases, especially considering EEOC’s recent high-profile litigation losses. Do you share 

these concerns? And if not, how can we be comfortable that the 

commission is not just a commission in name only? 

Ms. BERRIEN. Chairman Walberg, I believe you were quoting 

from our Strategic Enforcement Plan adopted in December of 2012, 

and I want to reinforce that—and underscore that that was adopted by a bipartisan majority of the commission—members of the 

commission, so what is reflected there is not only my view but it 

is the view of a majority of members of the commission. 

With that background, I would say several things. First of all, as 

you have noted, the Strategic Enforcement Plan does refer to the 

1995 delegation of authority to the general counsel of the agency 

and does continue that basic delegation, which was adopted together with the priority charge handling procedures and other systems intended to streamline the work of the agency and make sure 

that we were more effective in using the resources that we had. 

Certainly at this time, as the commission considered the input 

from more than 100 members of the public, institutions, representatives of employers, a wide range of agency stakeholders, we heard 

from them about a range of subjects including the issue of delegation and considered some of the recommendations that were made 

concerning the delegation of authority, and as a result, some 

changes were made but the basic delegation of authority remains. 

The general counsel of the agency has, as I was and as all of our 

colleagues of the commission were, was nominated by President 

Obama and confirmed by the Senate. He conducts litigation on behalf of the commission. And as the Strategic Enforcement Plan provides, he reports regularly on the conduct of that litigation. 

It should be noted that our litigation program in this fiscal year 

has an over 90 percent success rate in its litigation. I believe we 

have done 8 of 9 trials this year and we have succeeded. 

And so I do believe it is important to look at the instances where 

we have lost a case in light of the overwhelming success of our—— 

Chairman WALBERG. Some of those losses were significant financial losses and were brought to the attention that they were really 

beyond what we should be expecting. And I guess that, again, goes 

to my question about what hands-on direction the commission is 

actually giving if, indeed, the counsel is making so many decisions 

and we have a 70,000 case backlog, why we are going after some 

of these that end up very clearly with huge, huge losses to the taxpayer. 

Ms. BERRIEN. I don’t in any way mean to understate the significance of any loss because, of course, ultimately in a case where we 

have pursued litigation and lose, there are people who are affected 

by that decision. So I don’t take that lightly at all, as well as the 

resources of the agency at stake. 

Chairman WALBERG. Let’s jump to one of those. It was Washington State against—a case in Washington State against Evans 
15 

Fruit Company. The first case resulted in unanimous jury verdict 

for the employer—unanimous. The second case was dismissed before it even got to trial. 

What internal steps does the EEOC plan to take to assess the 

reasons for these types of high-profile failures? And second, do you 

agree that an employer who successfully defends EEOC claims 

through a jury trial should have its attorney fees reimbursed by 

the EEOC? 

Ms. BERRIEN. Well, I believe the existing law is clear about when 

and how an employer can recover fees, and employers that believe 

they are entitled to fees have sought them. In some instances they 

have obtained awards of fees; in many instances they have not. So 

we respect and adhere to whatever the existing law is on that 

point. 

In the specific case of Evans Fruit, there is also one aspect of the 

case that we are currently seeking reconsideration by the judge, 

and that is a retaliation claim. And the jury verdicts that you have 

noted, we will ultimately examine whether there is any basis for 

taking an appeal, but that decision has not been made yet. It would 

be premature. 

In terms of the commission and the commission’s input, there are 

several things that are in the Strategic Enforcement Plan that specifically go to your question of, does the commission have appropriate involvement and engagement in how the resources of the 

agency are used in litigation? As I have indicated, the general 

counsel does report regulatory to the commission. That is reaffirmed in the Strategic Enforcement Plan. 

In addition, one of the provisions of the Strategic Enforcement 

Plan is that at least one case from each of our districts will come 

to the commission for consideration, and some of the major cases 

of the commission, of course, already come to the commission, given 

that there are a number of criteria set out in our National Enforcement Plan previously and now Strategic Enforcement Plan that indicate that matters of significant financial consequence or that will 

demand significant resources of the agency or they could generate 

significant public attention or publicity among others should come 

to the agency, as well as those that involve novel applications of 

law or new and potentially new statutes, as well. 

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

I now recognize my ranking member, Mr. Courtney. 

Mr. COURTNEY. Thank you, Mr. Chairman. You know, listening 

to the exchange a moment ago I was reminded of my father, who 

was a trial lawyer for almost 50 years—lifelong Republican—and 

used to say when I was starting out as a young lawyer that any 

lawyer who tells you they have won every case is a lawyer that has 

never tried a case. And, you know, it is kind of nature of the business is that, you know, no one—there is—you know, no one bats 

1,000 in the system. 

Obviously, if there is, you know, losses it is something that we 

all need to be concerned about and learn from those results, and 

I am sure, you know, the commission takes that responsibility seriously. 

Again, in your opening comments you talked about the backlog 

reduction, which is, in my opinion, quite impressive—20 percent 
16 

since 2010. And again, the inflow of cases, though, which is happening at the same time that you are trying to address older 

cases—again, according to the statistics staff has given me it is 

about 100,000 cases a year. Is that correct? 

Ms. BERRIEN. That is correct. 

Mr. COURTNEY. And really, logistically, you know, it would be impossible for the commission to sort of scrutinize every single one of 

those cases. I mean, the fact is that you have to have systems in 

place where your professional staff is out there investigating and 

making decisions about this disposition. Isn’t that pretty much how 

it runs every day? 

Ms. BERRIEN. Absolutely. As dedicated as the members of the 

commission are, there is no way that we can consider or review 

100,000 charges of discrimination. 

We are very fortunate to have a very dedicated professional staff 

that conducts investigations, that mediates charges of discrimination, that conciliates, and that litigates where necessary, as well as 

engaging in extensive outreach and public education. 

Mr. COURTNEY. And you mentioned 9 cases that went all the way 

to verdict just a moment ago, in terms of, you know, some of the 

success rate—— 

Ms. BERRIEN. Yes, in this fiscal year. 

Mr. COURTNEY. The cases that go that far, again, are almost an 

infinitesimal fraction of the 100,000 cases that come in. I mean, 

you are out there trying to negotiate and resolve cases, otherwise 

you would drown. 

Ms. BERRIEN. Absolutely. And in fact, in our latest discussion of 

conciliations, for example, we saw that 40 percent of the matters 

that reach the point of conciliation are successfully conciliated. So 

those matters never reach litigation, for example. 

Our mediation program, which is very well received and highly 

regarded, I think, across the spectrum of the bar resolves successfully thousands of cases or charges of discrimination every year 

and recovered a significant amount of relief for people who were 

victims of discrimination in the past year. 

So we certainly use mediation, conciliation, and in the course of 

our investigation, when and if we determine that there is no merit 

to a charge of discrimination, the last thing that anyone in this 

agency, particularly given our limited resources, wants to do is to 

waste any of those resources by continuing a meritless investigation. 

Mr. COURTNEY. Right. And you issue reports to sort of break 

down on a regular basis in terms of what the, you know, the results are? 

Ms. BERRIEN. Yes, we do. And we also provide an annual report, 

the Performance Accountability Report, to this Congress every 

year. 

Mr. COURTNEY. Thank you. 

Well, so in terms of trying to grapple with, again, the backlog, 

the inflow of new cases, you know, the hard work to go out and resolve in as many cases as you can, I mean, obviously that is—relies 

a lot on your staffing and the individuals. Sequester is now in full 

swing since March 1st. Congress can turn it off if we can come together with an agreement, just like prior Congresses did when 
17 

Gramm-Rudman sequester went into effect in the 1980s and 1990s, 

but nonetheless, we are not there, apparently, at this point. 

Can you talk a little bit about how you are handling sequester, 

particularly in terms of your staffing, furlough days, layoffs? 

Ms. BERRIEN. Yes. Well first of all, to put context to this, in 1980 

the staffing of this agency was nearly 1,000 people more than it is 

today. In 1990 the staffing of the agency was approximately 500 

people more than it is today. 

Nevertheless, since 1990 the agency has jurisdiction now to enforce two additional statutes—the Americans with Disabilities Act 

and the Genetic Information Nondiscrimination Act—in addition to 

the prior authorizations to enforce Title VII of the Civil Rights Act, 

the Equal Pay Act, and the Age Discrimination in Employment Act. 

So our jurisdiction has grown; the number of charges of discrimination have, for the past several years, been at an historic level of 

approximately 100,000. During that same period our funding has 

decreased significantly; our staffing has decreased significantly. 

Today we have approximately 2,300 staff. Last year we instituted 

a hiring freeze in order to achieve the cost savings that were necessary to meet our budget last year. 

And in this year, despite efforts to cut other areas of our budget, 

we were unable to make the savings that were required by the sequestration so we are furloughing our employees. At this point we 

have called for 5 days of furlough; if necessary, an additional 3 

days are provided in our notice to furlough. So it has had a real 

impact on our workforce and we fear it will have a real impact on 

our ability to make further progress towards fulfilling our mission. 

Mr. COURTNEY. I think my time is expired so I will yield back, 

but thank you for that important perspective. 

Chairman WALBERG. Thank you. 

And I now recognize the chairman of the full committee, Mr. 

Kline. 

Mr. KLINE. Thank you, Mr. Chairman. 

Thank you, Madam Chair, for being here. It is nice to see you. 

Ms. BERRIEN. Thank you. 

Mr. KLINE. I very much appreciated that you made the trip up. 

We had an opportunity to chat just a couple weeks ago—— 

Ms. BERRIEN. Yes. 

Mr. KLINE [continuing]. So thank you very much for that. 

I am very sensitive to the 5-minute clock, and so I want to pursue a line of questioning sort of quickly here. Picking up, we discussed this a little bit in the office, and that is the issue of partnership agreements and the definition of ‘‘employee’’ under federal 

nondiscrimination law that—over which you have jurisdiction. 

Many partnerships in the legal and accounting professions have 

voluntarily adopted mutually agreed upon policies for their retirement, for example. Now, there is no question that in one of these 

firms that there are employees that are clearly covered by nondiscrimination laws, including the Age Discrimination in Employment Act—the ADEA—but I am not entirely convinced that when 

Congress created the ADEA they had in mind—we had in mind applying this law to prevent law firm and accounting partners, who 

are highly educated—or so they tell me—and well compensated 
18 

from voluntarily organizing as they see fit, including adopting retirement policies that they view to be in their best interest. 

So the questions that I have are these, and I will just give them 

all to you and then you can sort of respond to them in—in a group: 

Can you tell us whether or not the commission intends to make 

these mutually agreed upon retirement policies in the legal and accounting professions a focus of its enforcement efforts? Two, in 

light of the Supreme Court precedent governing the legal treatment 

of partnerships, wouldn’t you think it best for the commission to 

come to Congress for any changes in the law that you might think 

should be required? 

And then, as we have already started discussing in this hearing 

this morning, given the commission’s resource constraints, doesn’t 

it make more sense to focus on truly vulnerable workers and leave 

challenges to partnership retirement policies to individuals? I 

mean, we have already talked about the backlog and how much 

work you have got to do, and yet, I understand that the commission is looking at some of these arrangements. It just strikes me 

that in a period of scarce resources that might not be the best use 

of your resources. 

Those are the questions. 

Ms. BERRIEN. Okay. Thank you. 

Well, first of all, I would like to note that there are six enforcement priorities identified in our Strategic Enforcement Plan, which 

was adopted in December, and it includes exactly the areas—some 

of the areas that you have mentioned, including protecting immigrant, migrant, and other vulnerable workers, eliminating barriers 

in recruitment and hiring, addressing emerging and developing 

issues, enforcing equal pay laws, preserving access to the legal system, and preventing harassment through systemic enforcement and 

targeted outreach. 

I believe the case you are referring to is the Clackamas Gastroenterology Associates case, and what that case provides—— 

Mr. KLINE. Let me interrupt. I don’t want to tie it to a specific 

case. There are a number of instances here, so we can leave the 

specifics of a case out. It is in general—— 

Ms. BERRIEN. I am sorry. I meant the Supreme Court decision 

you were referring to. 

Mr. KLINE. Go ahead. 

Ms. BERRIEN. I am sorry. If I misunderstood you please let me 

know. 

But the Supreme Court’s decision in Clackamas Gastroenterology 

requires that basically the way that a partnership is viewed for 

purposes of application of the antidiscrimination laws may vary 

from case to case. So in the course of an investigation concerning 

a possible claim of discrimination against a person who is a partner 

in a firm, we are bound, in part by that Supreme Court decision, 

to examine the circumstances and determine whether and how the 

antidiscrimination—— 

Mr. KLINE. Excuse me again. The time is about to expire. 

In some of these cases there has been no complaint and you are 

looking into that arrangement, and it just strikes me again that 

that was not the intent of Congress when talking about employees 

and protection and nondiscrimination. We weren’t talking about 
19 

lawyers making huge piles of money, and accountants and so forth, 

who are in a different position than their employees. And yet, I understand that the commission is proactively looking in some of 

these cases and I am just wondering why that would be. 

Ms. BERRIEN. Well, certainly, Congressman, the need for us to 

consider all of the relevant factors in making a decision about 

whether to litigate a case or even to pursue a directed investigation 

might include whether or not the law will be adequately enforced 

by private attorneys general, which is certainly part of what all of 

the statutes that we enforce envision or contemplate, that the private bar or private attorneys general may be well suited to pursue 

certain claims. And in our Strategic Enforcement Plan we have recognized that. 

That said, without reference to a specific set of facts or a specific 

investigation, I would have to say that even under existing law an 

examination of the facts that apply to the business arrangements 

or the partnership agreements is necessary under the Clackamas 

Gastroenterology Associates case. I can’t say that there are no 

cases involving partners where there might be a instance of discrimination that would warrant or be appropriate for the exercise 

of the commission’s jurisdiction. 

As I think you have recognized, without addressing any specific 

facts, I think the answer is broadly we would have to look in an 

investigation at whether or not, under Clackamas, that particular 

partnership would qualify as an employer for purposes of the statute. 

Mr. KLINE. That is the reason why I am not a lawyer. I can’t 

even pronounce the Supreme Court case name. 

But I am concerned. I don’t think that got to the issue I was trying to get to. Perhaps we will be able to pursue it later. 

My time is more than expired, and I yield back. 

Chairman WALBERG. I thank the gentleman. 

There are plenty of lawyers. We are glad for colonels. 

I now recognize for 5 minutes of questioning, Ms. Bonamici? 

Ms. BONAMICI. Thank you very much, Mr. Chairman. 

And thank you for being here, Chairwoman Berrien. 

Guilty—I am one of the lawyers. And I wanted to align myself 

with the comments Mr. Courtney made about the legal system and 

the need to analyze cases, and sometimes you win, sometimes you 

lose. I think maybe Perry Mason didn’t lose a case. But for the 

most part there are risks involved, and I know that the EEOC 

takes steps to analyze cases before you bring them forward. 

I wanted to talk a little bit about one of the priorities that you 

have identified in your Strategic Enforcement Plan, which is eliminating barriers in recruitment and hiring, and I know that one of 

the things that the EEOC has discussed is discrimination against 

the unemployed. There are a lot of people out there still who have 

lost jobs through no fault of their own, and getting them back to 

work is something that we all talk about here in Congress. 

But several states, including my state of Oregon, have passed 

legislation limiting the use of credit reports in employment. It is 

especially timely because so many people who did lose jobs, 

through no fault of their own, faced some financial difficulties, and 

when employees are not hiring prospective employees because ei-
20 

ther because they are unemployed or because something on their 

credit score, it only exacerbates the difficulties faced by people who 

are trying to get back to work. 

And in the states—I believe there are about eight states now who 

have passed legislation limiting the use of credit in employment— 

of course, there are exceptions made for industries where that is 

relevant—and I wonder, Chairwoman, if you have looked into 

whether that practice tends to disproportionately impact minorities 

and women and what steps, if any, is the EEOC taking to prevent 

employment discrimination based on the unemployed status or on 

credit history? 

Ms. BERRIEN. Thank you. 

Actually, we have looked at both of those practices as a commission in public meetings of the commission. In the first year or so 

of my tenure at the commission, we conducted approximately a half 

a dozen commission meetings on barriers to hiring and recruitment, and we were particularly sensitive to several things: one, the 

fact that a large number of people would be seeking or—seeking to 

return or enter to the workforce in the first place, and we tried to 

look at practices that might affect that group. So we looked, for example, at the impact of the economy on older workers and some 

practices that affect older workers. 

We also conducted a public meeting on employers’ consideration 

of credit information and history as a potential barrier to employment and recruitment. And in fact, I believe that some of the local 

laws that have been introduced or passed in the months since then 

have actually drawn on the record of the meeting that we conducted and the testimony that witnesses presented. 

We also conducted a meeting on unemployment or unemployed 

status as a potential barrier to employment for job seekers. And in 

every instance we were interested in determining whether and to 

what extent there was a disparate impact on any particular group. 

In some instances I think we broadened our look so that we were 

not only addressing those who might be the obvious potential 

groups impacted, but also those who may not. For example, when 

we conducted our meeting on credit we did have someone testify on 

the impact of this practice for women. When we conducted a meeting on the unemployed status we looked at the practice’s impact 

not only on African Americans but also on other groups that could 

be impacted, including older workers. 

So I think through our meetings we have brought information 

into the public sphere that is helpful in those instances where 

states and localities have tried to pursue, as well as looking at our 

own charges of discrimination and, where appropriate, investigating if we believe there is a disparate impact or disparate treatment. 

Ms. BONAMICI. Thank you. And in just the remaining time, I 

know the EEOC enforces the Equal Pay Act, which has been the 

law since the 1960s. I support the Paycheck Fairness Act. I hope 

we can pass that. 

But why is it since equal pay for equal work has been the law 

since the 1960s is it the case that women only make about 77 cents 

to the dollar that men make? 
21 

Ms. BERRIEN. I don’t know if I am the best person to answer the 

why, but I can say that that is a real priority for us to close that 

gap once and for all, and I think we have made some significant 

progress in doing that. We have litigated a number of cases successfully challenging pay disparities—not only pay disparities affecting women, but in some cases pay disparities affecting other 

groups. And we will continue, along with our enforcement partners 

in the federal government who are part of the Equal Pay Enforcement Task Force, to work to close that gap. 

Ms. BONAMICI. Thank you. My time is expired. 

I yield back. Thank you, Mr. Chairman. 

Chairman WALBERG. I thank the gentlelady. 

And I recognize a doctor on the committee, Dr. Bucshon. 

Mr. BUCSHON. Good morning. 

A couple of things. First of all, I strongly believe all workers deserve strong protections against employment discrimination, and I 

thank you for your work in that area. 

A couple things that I am intrigued by, though, is, does it require 

a criminal background check or drug testing to be employed by the 

EEOC? 

Ms. BERRIEN. We are subject to the same standards that are set 

out by the Office of Personnel Management—— 

Mr. BUCSHON. So it is yes or no. 

Ms. BERRIEN. We have at times—I am not sure that we have required drug tests, but criminal background checks, depending on 

the nature of the position, may be required. 

Mr. BUCSHON. Okay. And can I ask, did you have to have a 

criminal background check on yourself or a random drug test before you were appointed to get appointed to your job? 

Ms. BERRIEN. I certainly did not have a random drug test, although—and as far as a criminal background check, I was subject 

to the FBI clearance and check that I believe all Presidential appointees are. 

Mr. BUCSHON. Yes. And do you think—do—in that vein, do you 

think that it was important for you to have a criminal background 

check before you were appointed to you current position? Why 

would that be applicable to you? 

Ms. BERRIEN. Well, I would say this: I want to make clear that 

the guidance that the EEOC adopted does not prohibit any employer—federal government, state or local government, or private 

employer—from conducting a criminal background check. What is 

relevant under existing law—and this has been determined by federal courts—is how those results are used and whether or not the 

check—whether or not the results are related to the job in question. And in that case, I believe I was subject to the same practice 

that is provided for in the guidance that we have adopted. 

Mr. BUCSHON. Thank you. Because we hear all the time, ‘‘Well, 

Congress passes laws that don’t apply to them,’’ but it seems to me 

that, you know, not being overly critical, that if you required a 

criminal background check to get your appointment or Presidential 

appointees require criminal background checks, I don’t really see 

the applicability in those other than political implications, I will be 

frankly honest with you, and I think that is where I have some difficulty with the guidance where an employer, based on what they 
22 

determine is appropriate, can conduct a criminal background check 

regardless of what type of employment—and I see it as an overreach. That is just one of my things. 

Now, do you know—do you consider drug use or alcohol abuse to 

be a disability? 

Ms. BERRIEN. There have been cases that have determined—federal cases that have determined that under certain circumstances 

not drug abuse or alcohol use but a history of alcoholism, for example, has been determined in some cases to be a disability. 

Mr. BUCSHON. Yes. And I can’t totally disagree with that. I have 

personal family reasons to agree with you. And as a medical doctor 

I realize that these can be classified as diseases and can be considered a disability in some instances. 

And the reason I ask that is the U.S. Steel case, which you lost 

so far—do you know how much U.S. Steel pays in workman’s comp 

payments per year by chance, or what their liability insurance is 

for their employees? Just a—— 

Ms. BERRIEN. I can’t give you a figure, but I am sure it is substantial. 

Mr. BUCSHON. So why would the EEOC continue to litigate a 

case when it seems to me U.S. Steel is protecting not only the employee and surrounding employees around them—litigate a case 

that clearly, if that employee, for example, made a mistake and 

killed another employee or that they would be open to litigation 

from the employee’s family, they would be open to litigation from 

all kinds of sources, plus—or they injured another person and the 

company ended up paying workman’s comp payments for years or 

the federal government had to pay disability payments forever. 

Why would the EEOC pursue a case when it is pretty clear that, 

you know, if you are working in a dangerous environment, in my 

personal view, it is not inappropriate for people to know the status 

of the employee not only for their own protection but for the protection of their surrounding employees and the company as it relates 

to liability, and that would be my question. Why would you disagree with that? 

Ms. BERRIEN. Well, Congressman, I am not sure that I would disagree with your premise. We certainly recognize that health and 

safety rules and regulations are a part of the backdrop for some of 

the laws that we enforce. And similarly, with our arresting and 

conviction guidance, we certainly and expressly recognize that concerns about employee health and safety or customer safety, among 

other factors, could be relevant to an employment decision. So I 

don’t think we disagree about that. 

Mr. BUCSHON. Okay. Do you think that if a person comes to be 

employed—an unemployed person, and a company has—I see my 

time is expired. 

I will yield back. Thank you. 

Chairman WALBERG. I thank the gentleman. 

I would ask unanimous consent that Representative Susan 

Brooks of Indiana, and a member of our full committee, be allowed 

to participate in today’s hearing. 

Without objection, Representative Brooks, you are recognized for 

5 minutes. Welcome. 

Mrs. BROOKS. Thank you, Chairman. 
23 

Hello, Chair Berrien. Nice to—— 

Ms. BERRIEN. Good morning. 

Mrs. BROOKS [continuing]. Be with you today. 

I am going to follow up a little bit on a line of questioning from 

Congressman Bucshon, because I am a former United States attorney, but similarly—or I have also been involved in the criminal justice system as a criminal defense attorney my entire career, so I 

have been in the criminal justice system until most—until the last 

half a dozen years, and criminal background check issues have always been an issue not only for those, you know, coming out of the 

criminal justice system but particularly for employers who are looking to hire and making those important hiring decisions. 

And I know that the EEOC did finalize its criminal background 

check guidance with—but it was, from my understanding, without 

a regard for the directive proposed by the Senate Appropriates 

Committee that the guidance was supposed to have been circulated 

for public comment at least 6 months before adoption. And it is my 

understanding that the report language accompanying the enacted 

fiscal year 2013 C.R. directed the EEOC to report to the Appropriations Committee the steps taken by the EEOC to alleviate that confusion caused by the criminal background check guidance. 

Can you please provide for this committee an update on how the 

EEOC’s—what is the progress in complying with this directive? 

And if you could please expand and share with me—and I am sorry 

I didn’t get here on time—more information about the criminal 

background guidance and what the response was to the Senate Appropriations directive. 

Ms. BERRIEN. Of course. So we will obviously comply with the 

Senate Appropriations Committee directive; the date for doing so 

has not arrived yet. 

Mrs. BROOKS. And I am sorry, what is that date? 

Ms. BERRIEN. I believe the committee—that report language 

came out approximately a month-and-a-half ago; I believe we have 

another month, more-or-less, to provide that information. We certainly will do that in a timely manner and we certainly are going 

to be prepared to do that. 

But I can certainly share with you broadly several things. First 

of all, the guidance that we adopted in April of 2012 was an update 

of guidance that had actually been in effect since the 1980s. It was 

initially adopted when Chair Thomas was at the agency; it was reaffirmed when Chair Kemp was at the agency. 

We believe, though, that for several reasons, because a court had 

indicated that additional support for the guidance would be useful, 

because of the burgeoning number of instances where background 

checks are conducted not only by screening or other firms but now 

increasingly it is possible for one to use online or other services to 

conduct background checks, because of the larger number of people—and I do want to make a distinction here. 

Our guidance concerns employer consideration of arrests and 

convictions, and from the passage of the first guidance in the 1980s 

the agency has always distinguished between arrests and convictions, given that arrest and the information underlying an arrest 

is not subject to the same standards nor is it the same quantum 

of proof as a conviction, so I do want—— 
24 

Mrs. BROOKS. Excuse me, Madam Chair, but is—in the guidance 

are arrests subject to an employer being entitled to see arrests? 

Ms. BERRIEN. An employer can request arrest or conviction 

records, but the guidance, as it has since the 1980s, indicates that 

a record of arrest is not entitled to the same weight or should not 

lead to the same consequences as a conviction record. 

Mrs. BROOKS. Because there is a very different standard for a 

conviction versus an arrest. 

Ms. BERRIEN. Exactly. 

Mrs. BROOKS. But an employer is still entitled to receive a list 

or request from a employee what you have been arrested for—— 

Ms. BERRIEN. An employer can correct—can request that. 

Mrs. BROOKS [continuing]. And then what they have been convicted of. And so what is the new—what is the change that was 

made and what was the commission’s—what happened in the 6- 

month public comment period? 

Ms. BERRIEN. Well—— 

Mrs. BROOKS. Was there a 6-month public comment period? 

Ms. BERRIEN. Actually, there were several opportunities for the 

public to weigh in on this subject. The commission conducted public 

meetings before I arrived, actually, under the leadership of Chair 

Earp, on arrest and conviction as a barrier to employment—— 

Mrs. BROOKS. And I know—I certainly am aware that there is, 

but was there a 6-month public comment period? 

Ms. BERRIEN. It was not treated like notice and comment rulemaking, absolutely—so it was not published for comment in the 

Federal Register, nor do we believe it needed to be. 

Mrs. BROOKS. And so we will, then, in a month or a month-anda-half, when you said we will be able to receive what the EEOC’s 

response is to that directive at that time? 

Ms. BERRIEN. We will absolutely make that submission to the 

committee that is required. 

Mrs. BROOKS. Thank you. Can you let me know—so many state 

and local laws require employers to conduct criminal background 

checks, so state and local laws may be in conflict with what the directive is. Is that a possibility? 

Ms. BERRIEN. Well, we recognized that in the guidance and we 

did discuss that. But in fact, it is not the guidance that creates that 

conflict; it is actually the law itself, which indicates that as federal 

law is, Title VII recognizes the supremacy of federal law. 

However, the commission is aware that there may be instances 

where in order to comply with federal law a background check may 

be required and that that may warrant an exclusion or a decision 

in a particular case to exclude an employee. I think there certainly 

is the opportunity in the course of an investigation to present that 

if that ever occurred. But we have addressed that in the guidance. 

Mrs. BROOKS. And I have one last question, if I might, Mr. Chair. 

Chairman WALBERG. Without objection. 

Mrs. BROOKS. Thank you. 

So can you please provide for us how EEOC can assure employers that are either faced with the EEOC guidance or with the state 

and local law that they are not going to be subject to litigation? I 

mean, if the state and local law is in—is, you know, in conflict with 
25 

your guidance, which law is, in your view and in the commission’s 

view, should the employers be following? 

Ms. BERRIEN. Well, there would never be a case where our guidance prohibits an employer from conducting a background investigation, so if—and that is often the case with state and local laws. 

If the state or local law says, ‘‘In order to work in this setting you 

must be subject to a background investigation,’’ there is nothing in 

this guidance that would prohibit that. 

The issue that the guidance addresses in great detail is what the 

standards are when an employer, if based on information they obtain in the guidance, makes a particular employment decision. And 

if the defense or the justification is that a state law requires exclusion of all people with a particular conviction, I think that would 

obviously be relevant to a determination that the commission 

would make about what steps would need to be taken next. 

Mrs. BROOKS. But the commission is allowing employers to determine certain categories of crimes and convictions that would preclude employment. Is that correct? 

Ms. BERRIEN. Absolutely. And that is provided for in the guidance. 

Mrs. BROOKS. Okay. 

Ms. BERRIEN. Then that, though, would assure that a person 

could not bring a suit or would not bring a charge of discrimination, so we can’t provide for that. 

Mrs. BROOKS. Certainly. 

Ms. BERRIEN. We would have to make the determination based 

on all the facts at the time. 

Mrs. BROOKS. Thank you very much. 

Ms. BERRIEN. Thank you. 

Mrs. BROOKS. I yield back. Thank you for the additional time. 

Chairman WALBERG. I thank the gentlelady, and appreciate the 

questions and the responses. 

Definitely one committee hearing is not sufficient to get to the 

issues to understand, and I think that assures us that there will 

be opportunities for the future. 

I now recognize the ranking member for any closing comments 

he would like to make. 

Mr. COURTNEY. Thank you, Chairman Walberg. And again, I 

want to thank you for holding this hearing—again, the first time 

EEOC has been invited over here in this Congress or the prior 

Congress, and obviously the lively exchange shows that, again, 

there is a lot of interest on both sides of the microphone here in 

terms of the great work that your commission conducts to protect, 

again, the civil rights of all Americans. 

And again, I want to compliment you on how open and responsive and precise your answers were to all the members’ questions. 

And again, hopefully this is the beginning of a dialogue between 

our subcommittee and your commission to, again, find ways to get 

better information out about the work that your commission does, 

and also look at ways that we can improve civil rights laws to protect, again, groups and individuals that are still subject to discrimination. 

Again, we have bipartisan legislation, which has been introduced 

by Congresswoman Ros-Lehtinen and—and Representative Polis, 
26 

the Employment Nondiscrimination Act, which again, I am hoping 

our committee will take up sometime during this Congress. And 

also the Protecting Older Workers Against Discrimination Act, 

which again, has bipartisan introduction in the Senate with Senator Grassley and Senator Harkin to, again, address a recent Supreme Court decision which I think unfairly hinders older Americans from, again, having their rights protected in the workplace. 

And with that in mind, I wanted to introduce two letters for the 

record, one from AARP and the other from the Leadership Conference on Civil Rights and Human Rights, which again, underscores the work that your commission is doing to protect older 

Americans and, again, the need for Congress to, again, help support the commissions and their efforts. So hopefully without objection? 

[The information follows:] 

AARP, 

May 21, 2013. 

Hon. TIM WALBERG, Chair; Hon. JOE COURTNEY, Ranking Member, 

Subcommittee on Workforce Protections, House Education & Workforce Committee, 

2101 Rayburn House Office Building, Washington, DC 20515. 

DEAR CHAIRMAN WALBERG AND REP. COURTNEY: AARP is a nonpartisan, nonprofit 

membership organization of people age 50 or older that fights for the issues that 

matter most to older Americans, including equal employment opportunity. On behalf 

of our more than 37 million members and all Americans age 50 and older, AARP 

appreciates the sustained attention the EEOC has been giving to issues that affect 

older workers and workers with disabilities, and we are pleased that you are holding a hearing to highlight the regulatory and enforcement actions of the Equal Employment Opportunity Commission (EEOC). 

The aging of Boomers, combined with a 25-year trend of Americans working 

longer and retiring later, means that our nation’s workforce is getting older. By 

2020, all Boomers will be age 55 and older, and the 55+ age group will constitute 

one-fourth of the workforce. As more older workers decide to delay retirement because they want to continue working or, increasingly, because they cannot afford to 

retire, having the option to work beyond traditional retirement age is of increasing 

importance to older workers, including the one-third of AARP members who are in 

the workforce. 

Despite the need for older workers to remain in the workforce longer, significant 

barriers to their hiring and retention exist. Among them is the persistence of age 

discrimination, both blatant and subtle. In a nationwide survey by AARP in 2012, 

about two-thirds (64%) said they believe that people over age 50 face age discrimination in the workplace. Moreover, about one-third (34%) reported that either they 

personally faced age discrimination in the last four years, or know someone who 

has. Once older workers lose their jobs, they face much longer periods of unemployment than younger workers—lasting on average more than one year. Employment 

discrimination on grounds of disability is also particularly challenging for older 

workers, as a disproportionate number of workers discriminated against on the 

basis of disability are older. 

The EEOC must continue to play a vital role in confronting practices and policies 

that impair full and equal employment opportunity for older workers. These include 

practices such as mandatory retirement, age limitations on employee benefits by 

state and local governments, discrimination against the long-term unemployed, and 

inquiries for medical information about employees. 

In the regulatory arena, AARP is particularly grateful for and strongly supportive 

of the EEOC’s work to clarify the law on employment practices that have a disparate impact on the basis of age. The Supreme Court previously affirmed the validity of such actions under the Age Discrimination in Employment Act, and specified 

the application of the ‘‘reasonable factor other than age’’ defense, but the high court 

provided no guidance on the parameters of these concepts. The EEOC has applied 

its expertise in interpreting the law and issuing regulations to guide employers and 

employees. The EEOC’s ‘‘reasonable factor other than age’’ regulations were squarely in line with case law, and it is important that this type of systemic policy guidance be available to employers as they review the impact that their decisions can 

have on older workers. 
27 

In the enforcement arena, AARP agrees with the Commission’s targeting of barriers in recruitment and hiring, including hiring discrimination based on age, as a 

national priority in its Strategic Enforcement Plan. Hiring discrimination, which 

has been exacerbated during this Great Recession, is a huge problem for older workers, but is very difficult for job applicants to detect and take action against. AARP 

has urged the Commission to use its greater ability to detect and bring systemic 

cases in targeted industries in which age stereotyping is prevalent. The Commission’s inclusion of enforcement strategies aimed at discriminatory screening tools 

such as date-of-birth screens on job applications is also key. 

Over the last four years, the Commission has given broad attention to a wide variety of issues of great concern to older workers. These include public hearings on: 

• Age Discrimination—In the depths of the recession, the EEOC held public hearings on ‘‘Age Discrimination in the 21st Century—Barriers to the Employment of 

Older Workers,’’ and on the ‘‘Impact of the Economy on Older Workers.’’ 

• Hiring Discrimination—Once jobless, older workers are far more likely than 

younger workers to experience long-term unemployment. Organizations and media 

reports uncovered a disturbing trend in which employers would refuse to consider 

the applications of jobseekers who were currently unemployed. The EEOC has held 

hearings on: ‘‘Disparate Treatment in 21st Century Hiring Decisions,’’ and ‘‘Out of 

Work? Out of Luck: Treatment of Unemployed Job Seekers.’’ 

• Caregiver Discrimination—People are living longer, and the vast majority of 

older adults with chronic, disabling conditions are being cared for by family members. Midlife and older workers juggling family eldercare responsibilities will be increasingly common, prompting the EEOC to issue best practices and hold a hearing, 

‘‘Unlawful Discrimination Against Pregnant Workers and Workers with Caregiving 

Responsibilities,’’ on the equal employment issues attendant to the treatment of 

family caregivers. 

• Credit Report Screens—Since older workers experience longer spells of unemployment (increased risk of struggling to pay bills and debts), and are more likely 

to experience medical problems and medical debt, the indiscriminate use of credit 

reports in the screening of job applicants raises many issues for older workers. 

AARP was pleased that the EEOC held a hearing on ‘‘Employer Use of Credit History as a Screening Tool.’’ 

• Employer Wellness Programs—Employer-sponsored wellness programs were expanded under the Affordable Care Act. The EEOC recently held a hearing on 

‘‘Wellness Programs Under Federal Equal Employment Opportunity Laws,’’ 

The EEOC has appropriately and effectively used these hearings to gather diverse 

views, and to inform updates of enforcement guidance and help focus its enforcement actions. 

AARP strongly supports the actions of the Commission to address the needs of 

older workers for fairness and equal opportunity, and looks forward to working with 

both the EEOC and this Committee on these important issues. If you have any 

questions, please feel free to contact Debbie Chalfie of the Government Affairs, Financial Security and Consumer Affairs staff at (202) 434-3723. 

Sincerely, 

JOYCE A. ROGERS, Senior Vice President, 

Government Affairs. 

May 21, 2013. 

Hon. TIM WALBERG, Chair; Hon. JOE COURTNEY, Ranking Member, 

Subcommittee on Workforce Protections, House Education & Workforce Committee, 

2101 Rayburn House Office Building, Washington, DC 20515. 

DEAR MEMBERS OF THE EDUCATION AND THE WORKFORCE COMMITTEE: On behalf 

of the Employment Task Force of The Leadership Conference on Civil and Human 

Rights (‘‘The Leadership Conference’’), a coalition charged by its diverse membership 

of more than 200 national organizations to promote and protect the rights of all persons in the United States, we write to applaud Chair Jacqueline Berrien for the successful and critical work of the Equal Employment Opportunity Commission (‘‘the 

Commission’’) under her guidance. 

The Commission serves a vital function in ensuring workplaces free from unlawful 

discrimination based on race, color, religion, sex, national origin, age, and disability. 

The Commission’s critical mission helps to promote economic security for all workers 

and their families. During Chair Berrien’s term, the Commission has strengthened 

efforts to prevent discrimination through outreach, education, and technical assistance and has pursued fair and vigorous enforcement of the law when evidence of 
28 

discrimination is uncovered. We write to highlight some of the Commission’s recent 

accomplishments under Chair Berrien’s leadership. 

Since Chair Berrien assumed her role in April 2010, the Commission has received 

approximately 300,000 charges of employment discrimination. In the last three 

years, the Commission has recovered over $1.2 billion in lost wages and other relief 

for workers who faced unlawful discrimination. Under Chair Berrien’s leadership, 

the Commission has represented some of the most vulnerable workers in this country. 

We applaud the Commission’s enforcement efforts to investigate and challenge not 

only individual cases of discrimination, but also systemic violations of the law, pursuant to its clear legal authority. Systemic enforcement is crucial to the Commission’s ability to effectively combat pattern-or-practice discrimination. Victims of discrimination may not be aware that they have been subject to discrimination and 

they may be less inclined to bring an individual complaint due to a lack of resources 

or fear of retaliation. Moreover, the Commission may be better positioned to pursue 

systemic cases that the private bar is less likely to take on, for example, in cases 

where the monetary relief might be limited, the focus is on injunctive relief, or the 

victims are in underserved communities. 

An important milestone in the Commission’s recent work was the issuance in 

April, 2012, of an updated ‘‘Enforcement Guidance on the Consideration of Arrest 

and Conviction Records in Employment Decisions Under Title VII of the Civil 

Rights Act of 1964.’’ This Guidance serves to inform employers of the agency’s interpretation of the relevant law and provides information about appropriate methods 

for employers to use criminal history records in compliance with the requirements 

of the statute. The Enforcement Guidance is a thoughtful, flexible, and workable 

roadmap for employers to follow. The Guidance explains to employers how to conduct and use any appropriate background checks they reasonably require, without 

violating the rights that job applicants have under Title VII. As reflected in testimony presented at a briefing on December 7, 2012, before the United States Commission on Civil Rights, for example, from the Society for Human Resource Management, the Enforcement Guidance has been generally well received by employers. We 

are attaching a copy of extended comments that some members of the Task Force 

submitted to the Commission on Civil Rights, based on the record of the Briefing. 

Beyond legal and administrative enforcement, the Commission serves as a crucial 

resource to employers by providing training, technical assistance, and guidance concerning compliance with relevant civil rights laws. The Commission conducts thousands of outreach events each year for the public, with a special emphasis on underserved communities, small businesses and workers who would otherwise have limited access to information about their rights under equal employment laws. In the 

last three fiscal years, over 1.1 million people participated in one of the Commission’s no-cost educational, training and outreach events. 

Thank you for your attention to the Commission’s important work to ensure equal 

employment opportunity in the nation’s workplaces and to promote economic security for all workers and their families. If you have questions or if we can be of assistance, please contact Lisa Bornstein, Senior Counsel at the Leadership Conference on Civil and Human Rights at Bornstein@civilrights.org or (202) 466-3311, 

or Sarah Crawford, Co-Chair of the Employment Task Force and Director of Workplace Fairness at the National Partnership for Women & Families at 

scrawford@nationalpartnership.org or (202) 986-2600. 

Sincerely, 

LEADERSHIP CONFERENCE ON CIVIL AND HUMAN RIGHTS, NATIONAL

PARTNERSHIP FOR WOMEN & FAMILIES. 

Cc: 

Rep. John Kline 

Rep. Tom Price 

Rep. Duncan Hunter 

Rep. Scott DesJarlais 

Rep. Todd Rokita 

Rep. Larry Bucshon 

Rep. Richard Hudson 

Rep. Robert Andrews 

Rep. Tim Bishop 

Rep. Marcia Fudge 

Rep. Gregorio Sablan 

Rep. Suzanne Bonamici 
29 

Chairman WALBERG. Without objection, hearing none, they will 

be entered into the record. 

Mr. COURTNEY. Great. 

And so lastly, I just want to say that, you know, you got some 

homework from some of the members in terms of the report that 

the Senate required, and I am sure you are going to share that 

with us. 

I would also ask that you keep us up-to-date regarding the damage that sequestration is doing to your hard work to eliminate the 

backlog of cases, which again, I think—to me, that is the fundamental challenge which your commission is confronted with and 

doing great work to reduce, and—but we don’t want to go backwards here. And with a smaller staff, as you pointed out, than you 

had 10 years ago and 20 years ago, you are still making that 

progress, but to have furlough days imposed clearly is going to 

hinder that effort. 

And it is important for us to know because we can still turn off 

sequester. I mean, that is still in our power as Congress—something which, again, historically, looking at Gramm-Rudman sequestration over the 1980s and 1990s was done repeatedly by our predecessors, and we are failing the American people by not getting our 

arms around that and turning it off. 

So again, hopefully you will share that with our subcommittee in 

terms of your efforts to comply with the Budget Control Act. 

And again, I want to thank you for your outstanding testimony 

today. 

And with that I would yield back. 

Chairman WALBERG. I thank the gentleman, and I would concur 

with a good number of those statements. 

And appreciate the opportunity to hear direct responses on questions. I think there is still, of course, some uncertainty about the 

why and wherefore of certain cases, and, you know, I would make 

it very clear, I don’t expect you to win every case. I am not a lawyer; I am a pastor and I didn’t expect to save every person in my 

congregation either, or even get their tithe. 

But I do expect that we have agencies that serve the good of the 

people and do the will of Congress, that continue to look to the priorities that need to be set in sequestration time. I agree, there, that 

that adds a challenge, I think an unnecessary challenge, and we 

wish that there could be a decision that would enable us to set the 

priorities of government and do the appropriate things without 

being caught in this design. 

But it is what it is, and so in recognition of that, any efforts that 

the 5-member commission can make to make sure that employees 

of the EEOC as well as the general counsel keep any—keep to the 

minimum any perceived—and I say perceived because perception is 

a big sense when we deal with a department this important and 

this impacting in our society—that we make sure that any so-called 

fishing or agenda-producing efforts are controlled for the best benefit of those claims that have been made, those concerns that have 

been expressed by employees that we have in the backlog and will 

be having further are addressed first. 

I think it is our concern that there has been a perceived, increasingly-aggressive approach by the EEOC to enforcing federal non-
30 

discrimination laws with questionable benefits for employees and 

little consideration of the larger consequences of job creation, which 

is important that we keep that balance, that future guidance in a 

greater way be given the opportunity for public comment and review, and so that reality prevails in how we deal with best practices and actual situations, whether it be with a case like U.S. 

Steel or Evans Fruits, or a number of cases in relation to not simply employment contractual relationships, but employer contractual 

relationships of partners that have been made with all good efforts 

to make sure that there are continuing opportunities for new partners to come in and that there is opportunity for a change in the 

diversity makeup that would not take place if we hold hard and 

fast to saying that these unique settings that are not employee settings but are employer—actual employer settings, partner settings, 

are dealt with their unique situation kept in mind. 

And so with no efforts to diminish the good work that is being 

done by the EEOC and the commission and your leadership on that 

commission, Ms. Berrien, I would say that it is good for us to be 

reminded that that fine line, in an age of great necessity at producing more jobs, more opportunities, making sure that best practices are carried out at the workplace, that sometimes the actual 

workplace knows the best practice better than the bureaucracy or 

Congress, are considered, and the results being that we have a 

safer, larger workforce with as little discrimination as we possibly 

can have 

It will never be perfect; I understand that, but making sure that 

we give our greatest efforts to finding those specific cases first and 

eradicating that from our workforce and our employer base. 

Having said that, with no further responsibilities or information 

to come before this committee, I will call it adjourned. 

[Additional submission of Chairman Walberg follows:] 

Washington, DC, June 6, 2013. 

Hon. TIM WALBERG, Chairman, 

Subcommittee on Workforce Protections, Committee on Education and the Workforce, 

Washington, DC 20515. 

DEAR CHAIRMAN WALBERG: The U.S. Chamber of Commerce, the world’s largest 

business federation representing more than three million businesses and organizations of every size, sector, and region, appreciates this opportunity to provide a 

statement for the record as part of the Subcommittee’s May 22, 2013 hearing entitled ‘‘Examining the Regulatory and Enforcement Actions of the Equal Employment 

Opportunity Commission.’’ The purpose of this letter is to provide you with a summary of our members concerns regarding the Equal Employment Opportunity Commission’s (‘‘EEOC’’ or ‘‘Commission’’) enforcement and sub-regulatory and agendas. 

At the outset, we wish to thank you for holding a hearing on this important subject. The laws and regulations that the EEOC implements and enforces are very important, but they are also very detailed and technical, requiring an investment of 

significant time and resources to fully understand. We wish to express our appreciation for the Subcommittee making EEOC oversight a priority. We look forward to 

working with you and other members of the Subcommittee on these issues in the 

coming months. 

In this letter, we present the concerns of our Members with EEOC enforcement 

and sub-regulatory initiatives. We wish to emphasize that it is not our intent in this 

letter to debate the merits of any law or regulation that the EEOC is charged with 

implementing and enforcing. Instead, these comments focus on the manner in which 

the EEOC is carrying out its responsibilities under these laws and regulations. 

EEOC’s Abusive Investigatory Tactics 

It should be emphasized that enforcement tactics can be difficult to summarize 

in a letter such as this. Many concerns seem outrageous on their face. Others might 
31 

not seem egregious standing alone, but repeated time and again or combined with 

other abuses, become more serious. With this in mind, set forth below are several 

examples of recent EEOC enforcement abuses that we have heard from our Members: • After the investigation, but before issuing a determination, EEOC investigators 

send the employer a letter, urging a mid-five figure settlement and outlining a variety of bad facts which show discrimination. Within days of rejecting these offers, the 

EEOC then dismisses the allegations entirely, making the whole basis of the original letter intellectually dishonest and making a supposedly neutral investigation appear to be nothing more than a ‘‘shakedown.’’ • An investigator refused to allow the employer to mediate the charge, claiming 

that the company does not negotiate in good faith.1 This position was blatantly inaccurate given that company had successfully mediated a matter with the same investigator only a few months earlier. The employer’s request for the case to be reassigned to another investigator was denied. • Several examples of instances where employees have claimed that they had 

been terminated unlawfully, when in fact they were either still employed or had resigned voluntarily. The employers were then obligated to respond to such allegations 

with a position statement in order to simply show that a termination had not occurred. This response requires the employer or its representatives to, among other 

things, review the complaint, obtain documents, interview managers, and draft the 

legal response. Some Members estimate that preparing such a response can easily 

cost $3000 to $4000. 

• Pursuing investigations despite clear evidence that any alleged adverse action 

was not discriminatory—such as an employee caught on videotape leaving pornography around the workplace. 

• Investigators refusing to close cases that are several years old by continually 

making additional requests for information. 

• Investigators refusing to close cases, even where the employer, employee and 

union have all agreed to a private settlement of the matter at hand. 

• Failing to engage in good faith conciliation in order to pursue a case which the 

EEOC eventually lost on summary judgment, costing the employer several hundred 

thousand dollars in attorneys’ fees and costs. 

• Continually attempting to communicate directly with employers rather than 

through employers’ counsel. 

• Making overly-burdensome requests for information and issuing subpoenas 

which are sweeping in scope and not sufficiently related to the underlying investigation. 

• Demanding that the employer turn over workplace policies that are completely 

irrelevant to the underlying charge. 

• Various issues related to EEOC investigators’ ‘‘fact-finding conferences,’’ such 

as: 

• Making these conferences mandatory; and holding them prior to any investigation and prior to permitting the employer to submit a statement of position or a 

statement of facts. 

• Conducting these conferences in a confrontational and one-sided manner in 

which EEOC investigators aggressively question employers, but refuse to permit 

employers’ counsel to speak. 

• Making unprofessional and prejudicial statements during conferences, such as 

exclaiming that, ‘‘it is well known that [employer] has a pattern and practice of discriminating and retaliating against its employees.’’ 

EEOC’s Abusive Litigation Strategy 

The anecdotes catalogued above were personally described to Chamber staff by 

concerned Members. However, there are also myriad public examples of the EEOC’s 

irresponsible enforcement efforts—particularly once they have entered the litigation 

stage.2 These instances have most notably been demonstrated in a litany of federal 

court opinions in which federal judges have awarded attorneys’ fees and costs to employers who were subjected to the EEOC’s overzealous enforcement tactics. 

In one of the most well known examples of the EEOC’s reckless enforcement agenda, the U.S. Court of Appeals for the 8th Circuit largely affirmed a district court’s 

dismissal of an EEOC class action lawsuit which alleged sexual discrimination but 

failed to identify the alleged victims of discrimination.3 The 8th Circuit agreed with 

the district court that the EEOC stonewalled the company in explaining who it 

sought to represent and made no meaningful attempt at conciliation. As a result of 

the EEOC’s outrageous litigation strategy, the District Court ordered the agency to 

pay the employer almost $4.5 million in attorneys’ fees and expenses.4 The 8th Circuit noted the district court’s description of the EEOC’s tactics in the case: 
32 

There was a clear and present danger that this case would drag on for years as 

the EEOC conducted wide-ranging discovery and continued to identify allegedly aggrieved persons. The EEOC’s litigation strategy was untenable: CRST faced a continuously moving target of allegedly aggrieved persons, the risk of never-ending discovery and indefinite continuance of trial. 

Additionally, a federal court in New York dismissed a pregnancy discrimination 

lawsuit filed by the EEOC, ruling that the Commission did not present sufficient 

evidence to establish that the employer engaged in a pattern or practice of pregnancy discrimination.5 The EEOC, which represented 600 women against the employer, based its claim on anecdotal accounts that the company did not provide a 

sufficient work-life balance for mothers working there. The Court ruled that the law 

does not mandate work-life balance, and that employers are not required by law to 

treat pregnant women and mothers better or more leniently than others. The Court 

criticized the EEOC for using a ‘‘sue-first, prove later’’ approach, noting that, 

‘‘’J’accuse!’ is not enough in court. Evidence is required.’’ 

In a race discrimination case, the EEOC alleged that a staffing company’s blanket 

policy of not hiring individuals with a criminal record had a disparate impact on 

African-Americans.6 However, the company simply did not have a blanket no-hire 

policy. Despite becoming aware of this issue, the EEOC proceeded with the litigation 

anyway. The U.S. District Court for the Western District of Michigan determined 

that ‘‘this is one of those cases where the complaint turned out to be without foundation from the beginning.’’ As a result, the Court ordered the EEOC to pay a total 

of $751,942.48 for deliberately causing the company to incur attorneys’ fees and expert fees when the agency should have known that the company did not have the 

blanket no-hire policy. 

Similarly, in a case alleging discrimination under the Americans with Disabilities 

Act (‘‘ADA’’), the Commission continued to litigate even when it became clear that 

the case had no merit.7 Specifically, the EEOC admitted that the alleged victim of 

discrimination could not perform the essential functions of the job but ‘‘continued 

to litigate the * * * claims after it became clear there were no grounds upon which 

to proceed.’’ Thus, the EEOC’s claims were ‘‘frivolous, unreasonable and without 

foundation.’’ The district court dismissed the claim and awarded the employer over 

$140,000 in attorneys’ fees and costs. The Court of Appeals affirmed. 

Wasting Resources in Challenging Uncontroversial Policies 

Recently, the EEOC has challenged several employers’ workplace policies which 

have been in effect for years and have been voluntarily agreed to by all interested 

parties. In challenging these policies, the Commission has likely expended significant time and resources. Yet even if the EEOC is eventually successful in invalidating these policies, any supposed benefits of its efforts will be dubious at best, as 

it is unclear who the Commission is protecting in these instances. 

Targeting Voluntary Partnerships 

For example, the Wall Street Journal recently published a story on the EEOC’s 

investigation into PricewaterhouseCoopers (‘‘PwC’’).8 The Commission alleges that 

the firm’s partners are actually employees, and that the firm’s mandatory retirement policy therefore violates the Age Discrimination in Employment Act (‘‘ADEA’’). 

According to the Wall Street Journal, the Commission has demanded that PwC 

eliminate the retirement policy. 

The EEOC’s legal theory conflicts with its own existing guidance on partnerships 

and misapplies the law on this issue as interpreted by the Supreme Court.9 Even 

putting those issues aside, one wonders whether pursuit of such a case is the best 

use of the Commission’s resources. After all, the challenged retirement agreement 

concerns partners who are retiring from a major U.S. accounting firm—hardly a vulnerable group in need of protection.10 These individuals became partners knowing 

about and agreeing to this retirement policy, and have benefitted from the partnership structure while they were partners. Pursuant to the policy’s terms, these partners enjoy a significant retirement pension supported by current partners. 

If the EEOC chooses to sue PwC, the litigation will not aid or protect vulnerable 

workers but will simply force the company to abandon a policy that its partners 

themselves agree is in the business’ best interest. EEOC’s harassment of PwC—and, 

potentially, all other partnerships—is not only an abuse of its enforcement authority, but also an incredible waste of resources. 

Challenging Workplace Safety Policies 

In another case, the EEOC inexplicably challenged a company’s common sense efforts to ensure a safe workplace in a potentially hazardous industrial environment.11 In the EEOC’s case against U.S. Steel, the employer performed random 

drug and alcohol testing on its probationary employees pursuant to the terms set 
33 

forth in the collective bargaining agreement it entered into with United Steelworkers of America (USW). The EEOC has challenged this policy as violative of the 

ADA. 

Working conditions at the plant in question require strict adherence to safety 

rules. Employees work on or near coke batteries, which contain molten coke that 

can be as hot as 2,100 degrees Fahrenheit. The working areas are very narrow, are 

sometimes at dangerous heights and are located among large industrial machinery 

and gasses that are both toxic and combustible. Quite clearly, the drug and alcohol 

tests are performed in order to ensure a safe workplace. The EEOC might have realized why such tests are so important—and why both the employer and union agreed 

to them—if investigators and simply asked about the reasons for the policy, or visited a U.S. Steel facility. EEOC investigators did neither. 

Instead, the EEOC blew through the conciliation process and filed suit against 

both U.S. Steel and USW alleging that the random drug and alcohol testing violates 

the ADA, which prohibits workplace medical exams that are not ‘‘job-related and 

consistent with business necessity.’’ 12 U.S. Steel argued that the testing is appropriate as job-related and as a business necessity because it enables them to detect 

impairment on the job. The district court agreed and granted summary judgment 

for the company. The court noted that ‘‘safety is a business necessity and the testing 

policy genuinely serves this safety rationale and is no broader or more intrusive 

than necessary.’’ 

That the EEOC pursued such a claim against a policy so that was so clearly related to workplace safety is bad enough. However, the Commission has ‘‘doubleddown’’ on this strategy and has appealed the decision, thereby wasting even more 

resources in pursuit of a nonsensical claim. 

Issuing Sub-regulatory Guidance on Employers’ Use of Criminal Background Information 

The EEOC also pushes its enforcement agenda in the sub-regulatory arena. Recently the Commission issued guidance concerning employers’ use of criminal background information entitled, Enforcement Guidance on the Consideration of Arrest 

and Conviction Records in Employment Decisions Under Title VII of the Civil 

Rights Act of 1964, as amended (the Guidance). Although having a criminal record 

is not specifically protected by Title VII,13 the EEOC takes the position that because 

‘‘incarceration rates are particularly high for African American and Hispanic 

men,’’ 14 employers’ use of criminal background information when hiring may have 

a disparate impact on these individuals. 

Unfortunately, the EEOC did not publicly release a draft of its Guidance for the 

public to have an opportunity to provide comment. This is contrary to the strong 

policy favoring pre-adoption notice and comment on guidance documents.15 Preadoption notice and comment would have helped the EEOC arrive at Guidance that 

better reflects the law while limiting controversial elements of the proposal.16 This 

lack of transparency is even more troubling considering the fact that the Guidance 

became effective upon publication, giving employers no time to reconsider policies 

and practices in preparation for its implementation. 

The Guidance contains substantive flaws as well, the first being the suggestion 

that employers should conduct ‘‘individualized assessments’’ of candidates before 

any final employment decision is made. According to the Guidance, the individualized assessment essentially gives excluded candidates an opportunity to explain why 

an employer’s screening policy should not apply to them (e.g., that the background 

check yielded incorrect information). 

Although the Guidance does not have the force of law, it is not unreasonable to 

assume that many employers will likely conclude that it does, and that ‘‘individualized assessments’’ are now required under federal law; or, at the very least, that 

failure to follow the Guidance will be used as evidence of non-compliance. The Guidance is also not sufficiently specific as to under what circumstances an employer 

should utilize individualized assessments and how they are to be conducted. For instance, must a daycare employer conduct an individualized assessment of a job candidate who has been convicted of a violent crime against a child? Commissioner 

Barker, in her separate statement opposing the Guidance, recognized how confusing 

the Guidance could be to employers: ‘‘[T]he only real impact the new Guidance will 

have, will be to scare business owners from ever conducting criminal background 

checks.’’ 

Furthermore, the Guidance notes that state and local laws are preempted by Title 

VII if they ‘‘require or permit the doing of any act which would be an unlawful employment practice under Title VII.’’ In other words, the fact that an employer’s 

criminal screening policy was issued in order to comply with state or local law will 

not be a defense to an allegation of disparate impact discrimination. Unfortunately, 
34 

the Guidance offers no help to those employers in situations in which there is a potential conflict between state and federal law, and employers cannot be expected to 

perform their own preemption analyses. Although employers should not be subject 

to undue scrutiny by the EEOC simply because they are complying with state laws, 

the Guidance indicates that this could be a real possibility.17

The Commission’s Own Limitation on its Oversight Authority 

The underlying problem with the enforcement abuses described above is the fact 

that the Commission has not implemented the appropriate safeguards to ensure it 

is not wasting resources by pursuing non-meritorious litigation. This may be because a significant amount of litigation authority placed by statute in the hands of 

the Commissioners has been delegated to the General Counsel. It may also be partially attributed to subsequent delegation of authority to District Offices. In comments submitted to the Commission during the development of its Strategic Enforcement Plan (SEP), the Chamber questioned whether the Commission was exercising sufficient oversight of that delegation and whether the continued delegation 

is appropriate in light of the failure to address these problems. 

Specifically, the Chamber noted that the officials charged with setting Commission policy must have a direct stake in the implementation of that policy in the context of litigation. 

Unfortunately, the Commission reaffirmed this delegation of authority in the final 

SEP, although it does require ‘‘[a] minimum of one litigation recommendation from 

each District Office [to] be presented for Commission consideration each fiscal year.’’ 

Many employers believe that this minor change will do little to improve the Commission’s oversight function. This is primarily because the Commission files much 

more than 15 lawsuits each year (the number of EEOC District Offices), and because the District Offices are likely to submit uncontroversial cases simply to satisfy 

this requirement. In her comments for the record, Commissioner Barker noted that 

she is ‘‘very concerned about the Commission’s delegation of most of its litigation 

authority to the General Counsel.’’ 18 With the reaffirmance of this delegation of authority, the Commission severely restricts its ability to reign in the enforcement 

abuses described above. 

Conclusion 

We wish to thank you for taking the time to hold this important hearing on EEOC 

oversight. These comments only begin to summarize the very great concern that we 

have with the EEOC’s enforcement and policy agenda. We look forward to working 

with you as you continue to examine these important issues. Please do not hesitate 

to contact us if we may be of assistance in this matter. 

Sincerely, 

RANDEL K. JOHNSON, Senior Vice President, 

Labor, Immigration and Employee Benefits. 

JAMES PLUNKETT, Director, 

Labor Law Policy. 

ENDNOTES

1The EEOC has a statutory duty to engage in conciliation before filing a formal complaint. 

See 42 U.S.C. § 2000e-5(b). The policy rationale behind this requirement is simple: needless litigation should be avoided and if compliance may be obtained through informal means, that is 

preferable to expending the significant resources litigation requires. 2The Chamber has previously notified the EEOC of its concern regarding the Commission’s 

pursuit of meritless charges and suggested potential solutions. See e.g., Johnson, Randel K. 

STATEMENT OF THE U.S. CHAMBER OF COMMERCE TO THE EQUAL EMPLOYMENT 

OPPORTUNITY COMMISSION. Small Business Realities, Discrimination Laws and the Equal 

Employment Opportunity Commission, Hearing, December 9, 1998. 3 EEOC v. CRST Van Expedited, Inc., 679 F.3d 657 (8th Cir. 2012). 

4 In the 8th Circuit decision, although the court ruled against the EEOC on almost all counts, 

it did revive a few claims. Accordingly, the attorneys’ fees and expenses award was vacated, 

without prejudice, since the employer was no longer a ‘‘prevailing’’ party. 5 EEOC v. Bloomberg L.P., 778 F. Supp. 2d 458, 462 (S.D.N.Y. 2011). 

6 EEOC v. Peoplemark, Inc., 2011 U.S. Dist. LEXIS 38696 (W.D. Mich. Mar. 31, 2011). 

7 EEOC v. Tricore Reference Laboratories, 2012 U.S. App. LEXIS 17200 (10th Cir. 2012). 

8Discriminating Against Partnerships, WALL STREET JOURNAL, June 3 2013, available at 

http://online.wsj.com/article/ 

SB10001424127887323855804578511693604180764.html?mod=WSJ—Opinion—AboveLEFTTop 9See Clackamas Gastroenterology v. Wells, 538 US 440 (2003). 

10The story notes that these partners are compensated in the ‘‘seven-figure range.’’ 11 EEOC v. U.S. Steel Corp., No. 10-1284 (W.D. Pa. Feb. 20, 2012). 12See 42 U.S.C. 12112(d)(4)(A). 13The EEOC administers Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a). 
35 

1The overall staffing number for FY13 is 2,226, according to EEOC’s Congressional FY14 

Budget Justification. 

14See EEOC ENFORCEMENT GUIDANCE ON THE CONSIDERATION OF ARREST AND 

CRIMINAL CONVICTION RECORDS (April 25, 2012), Section II. 15The Office of Management and Budget, Final Bulletin for Agency Good Guidance Practices, 

72 Fed. Reg. 3432, 3438 (Jan. 25, 2007) states the following: ‘‘Pre-adoption notice-and-comment 

can be most helpful for significant guidance documents that are particularly complex, novel, consequential, or controversial. Agencies also are encouraged to consider notice-and-comment procedures for interpretive significant guidance documents that effectively would extend the scope of 

the jurisdiction the agency will exercise, alter the obligations or liabilities of private parties, or 

modify the terms under which the agency will grant entitlements. As it does for legislative rules, 

providing pre-adoption opportunity for comment on significant guidance documents can increase 

the quality of the guidance and provide for greater public confidence in and acceptance of the 

ultimate agency judgments.’’ 16 In October of 2010, the EEOC conducted a hearing on employers’ use of credit information. 

It is expected that some form of guidance will be issued. The Subcommittee should encourage 

the EEOC to provide an opportunity for the public to comment in writing on any such guidance. 17See, e.g., Waldon v. Cincinnati Public Schools, 1:12-CV-00677 (S.D. Ohio, April 24, 2013). 18See COMMENTS FOR THE RECORD, February 20, 2013 Public Commission Meeting on 

the Implementation of the EEOC’s Strategic Plan for Fiscal Years 2012-2016. 

[Additional submissions of Mr. Courtney follow:] 

Prepared Statement of the National Council of EEOC Locals, 

No. 216, AFGE/AFL–CIO 

The National Council of EEOC Locals, No. 216, AFGE/AFL-CIO (‘‘the Council’’) 

is the exclusive representative of the bargaining unit employees at the Equal Employment Opportunity Commission (EEOC), including investigators, attorneys, administrative judges, mediators, paralegals, and support staff located in 53 offices 

around the country. The Council thanks you for the opportunity to share our views 

on the record regarding the May 22, 2013 hearing before the Subcommittee on 

Workforce entitled ‘‘Examining the Regulatory and Enforcement Actions of the 

Equal Employment Opportunity Commission.’’ 

EEOC has historically worked within a tight and often frozen budgets, even while 

adding jurisdiction over new laws. However, the budget situation worsened for 

EEOC, even before the current sequestration. In FY12 a 2% across the board cut 

in FY12 reduced the budget to $360M from $367 in FY10 and FY11. This was the 

first budget cut in EEOC’s history. The original FY13 continuing resolution (CR) 

carried over the FY12 cut for the first two quarters of FY13. Now with sequestration, EEOC must cut an additional $18M or 5% in FY13. These cuts come on the 

heels of five years of record high EEOC charge filings. Prior to sequestration, EEOC 

had already lost 10% of its staff, leaving the agency with only 2,245 FTEs nationwide. Now, EEOC has furloughed the entire staff, but not contractors, for 5 days, 

to absorb a shortfall that the agency stated it was unable to find from other expenses. After a reassessment period to take place between July1-12, EEOC will decide whether to furlough staff an additional 3 days. 

Barring a change to the law, sequestration will remain in effect for 10 years. 

Therefore, EEOC, like its sister agencies in the Federal government, must determine the best course for absorbing this fiscal year’s reduction in funding, which has 

been prorated this year to 5%. In subsequent years of sequestration EEOC must be 

prepared to operate within budgets reduced by 8.2%. 

Typically the impact of sequestration has focused upon larger cabinet level agencies. 

Significantly, this was not only the first hearing that this Subcommittee has had 

this Congress on EEOC, but the first hearing since the start of sequestration. Therefore, the hearing was an excellent opportunity to seek further information into the 

effects of sequestration on EEOC and its stakeholders, including workers, employers, and the agency’s own employees. 

In fact, Chair Berrien was questioned on sequestration by Ranking Member Joe 

Courtney, who inquired, ‘‘Sequester has been in full swing since March 1. Can you 

talk about how you are handling it in terms of staffing?’’ 

Chair Berrien provided context, explaining that EEOC currently has approximately 2,300 employees.1 She stated that in 1980 EEOC had 1,000 employees more 

than today. In 1990, EEOC had more 500 more than today. Since 1990, Congress 

has added enforcement over the Americans with Disabilities Act and the Genetic Information Nondiscrimination to the EEOC’s jurisdiction. Chair Berrien also dis-
36 

2 Union Seeks Savings to Reduce Furloughs, Daily Labor Report, April 8, 2013. 

cussed that charges have been at an historic level, i.e., over 100,000. During this 

time EEOC has had funding decreases and a hiring freeze, which goes back to 2011. 

After Chair Berrien provided this background, she followed with a brief direct response to Ranking Member Courtney’s sequestration question. 

Chair Berrien: Despite efforts to cut other areas of our budget we were unable 

to make the savings required by sequestration. We are furloughing staff five days 

and if necessary the notice adds an additional three days. This will have a real impact on our workforce and ability to make further progress towards our mission. 

This statement brings to bear tremendous concerns. Unfortunately, time constraints prevented follow up to Chair Berrien’s response. The response raises more 

questions than answers for this Subcommittee. Chair Berrien’s answer regarding 

the impact of sequestration is worth breaking down into greater detail. 

‘‘Despite efforts to cut other areas of our budget we were unable to make the savings 

required by sequestration’’ 

What efforts were actually made by the EEOC to achieve savings, other than furloughs? 

The Office of Management and Budget advised agencies this past January to look 

for savings including cutting temporary employees and reviewing contracts to ‘‘determine where cost savings may be achieved.’’ Did EEOC cut temporary employees? 

Did EEOC review its contracts? Did it make modifications to contracts based on this 

review? Does the agency have any contracts with option years? Has the agency reduced or negated any of the option year spending? What savings were achieved? Are 

contractors working while government employees are on furlough? What savings, if 

any, are being required from EEOC’s fifteen field office budgets? What savings, if 

any, is EEOC requiring to its travel budget? EEOC’s website indicates that the 

agency is going forward with public training seminars, despite other agencies, such 

as GSA, cutting such seminars. Are training seminar budgets reduced at all? 

EEOC’s union, the National Council of EEOC Locals, No. 216, AFGE/AFL-CIO, 

has created an initiative to identify areas where savings could be captured and efficiencies implemented.2 The Union advocates reducing furloughs through savings 

and efficiencies, such as: modifying contracts and reducing option year spending; 

cutting management travel that could be conducted by video-teleconference; doublesided printing; reducing space through voluntary expanded telework; lowering supervisor to employee ratios, and its cost-saving full service intake plan. Will the 

agency act on these suggestions? If not, what actions will the agency take? 

‘‘We are furloughing staff 5 days’’ 

While many agencies originally announced that furloughs would be necessary as 

a result of sequestration, several of these agencies were ultimately able to avoid furloughs. Why has EEOC implemented furloughs when other agencies have avoided 

them? 

‘‘If necessary the notice adds an additional 3 [furlough] days.’’ 

Will these additional 3 furlough days be necessary? What cost savings could be 

implemented to avoid these additional days? The uncertainty of future furlough 

days certainly affects planning, operational needs, and agency goals. The uncertainty must also be a source of concern for the employees, who may or may not be 

furloughed. The agency intends to conduct a reassessment period between July 1- 

12, 2013 to determine if the additional 3 days of furloughs will occur, referred to 

as Phase II. Can EEOC resolve this uncertainty now? What is the earliest that 

EEOC can determine and notify employees whether they will be required to take 

an additional three days of furloughs? EEOC should take demonstrable actions to 

avoid furloughs and announce immediately that additional furloughs are off the 

table. 

‘‘This will have a real impact on our workforce * * *’’ 

What is the impact on EEOC’s workforce? Five days of furlough spread over five 

two week pay periods results in a10% pre-tax pay loss to its employees. Does EEOC 

have information on the financial consequences the pay loss is causing its staff, especially support staff whose pay grade levels range from GS-5-GS-7? What is EEOC 

doing to provide information about resources that employees may turn to for financial assistance? How are furloughs impacting employee morale, specifically in those 

areas of human capital development that are addressed in the annual Federal Employee Viewpoint Survey? How many employees will leave between now and the end 
37 

of the fiscal year? Given the hiring freeze, will those additional losses impact morale? What impact will these staffing losses have on average case workload? 

‘‘This will have a real impact on our * * * ability to make further progress towards 

our mission.’’ 

What is the nature of the impact that sequestration will have on EEOC’s civil 

rights mission? EEOC ended FY12 with a backlog of more than 70,000 discrimination. At the hearing Chair Berrien noted the modest progress in the last two years, 

wherein the agency has reduced the backlog by 10% in FY11 and again in FY12. 

However, EEOC’s FY14 budget justification projects that the backlog will rise dramatically to 80,575 by FY14. 

The FY14 budget justification makes no reference to sequestration or furloughs. 

The backlog projection then would appear to be skewed lower than is realistic, considering the loss of productivity caused by the furlough days. What is EEOC’s projection for the FY13 backlog when 5 furlough days are incorporated into the analysis? What is EEOC’s projection for the FY13 backlog when 8 furlough days are incorporated into the analysis? How many furlough days are anticipated for FY14? 

How will this impact the agency’s backlog projection for FY14? 

According to EEOC Performance and Accountability Report for FY12, EEOC’s average charge processing time is a lengthy 288 days. How will furloughs impact average charge processing time? What changes is EEOC making to ensure wise use of 

its limited and scarce resources? 

Furloughs are counterproductive to effectively carrying out the EEOC’s mission. 

Therefore, furloughs should only be implemented only as a last resort. The testimony provided by Chair indicated that the EEOC is still considering adding three 

additional days of furlough to the current 5 days furloughs. The Council urges 

EEOC to consider alternative means other than furloughs, such as those suggested 

thus far by the Union, to achieve the budget reductions required by sequestration. 
38 

January 18. 2011 

Hon. Manin R. Castro, Chair 

U.S. Commission on Ciyil Rights 

])3 1 Pennsylvania Ave. NW, Suite ] 1~0 

Washington. DC 2042~ 

Hon. Roberta Achtenberg, Commissioner 

U.S. Commission on Civil Rights 

]331 Pennsylvania Ave. NW, Suite lisa 

Washington. DC 2042~ 

Hon. Oail L. Heriot. Commissioner 

U.S. Commission on Civil Rights 

133 1 Pennsylvania Ave. NW. Suite II SO 

Washilliton. DC 2042~ 

Hon. David "]adney, Commissioner 

U.S. Commission on Civil Rights 

133 1 Pennsylvania Ave. NW, Suite Il SO 

Washington. DC 2042~ 

Hon. Abigail ThemSlrorn, Vice-Chai, 

U.S. Commission on Civil Rights 

133] Pennsylvania Ave. NW, Suite] ]~O 

Washington. DC 2042S 

Hon. Todd F. Ouiaoo. Commissioner 

U.S. Commission on Civil Rights 

1331 Pennsylvania Ave. NW, Suite lISa 

WashinglOl'l, DC 2042~ 

Hon. Peter N. Kirsanow, Commissioner 

U.S. Commission on Civil Rights 

1331 Pennsylvania Ave. NW, Suite IISO 

Washington, DC 20425 

Hon. Michae] Yaki. CommissiOllCl" 

U.S. Commission on Civil Righl5 

1331 Pennsylvlnia Ave. NW, Suite 1150 

Wuhington. DC 2042~ 

Re: Briefing on EEOC Enforcement Guidance on Use ofCriminaJ Records 

Dear Ctulir Castro and Commissioners: 

Thank you for inviting conuncnlS to supplement the Commission's Briefing on "The 

Impact of Criminal Baekground CI\«:ItJ and the Equal Employment Opponunity Commission' s 

(EEOC) Conviction Records Policy on the Emplo)'ment of Black and Latino Worken. H beld on 

December 7, 20 12. This letter is submitted on behaJfofthe organizations identified below, many 

of which are participants in the Employment Task Force of The Lendenhip Conference on Civil 

and Iluman Rights. Many other organizations joining in these comments work with people with 

criminal records to aid in workforce re-entry. 

Wejoin nllllly o f the witllCUQ who IUlificd DI the Commission briefing in 

wholeheartedly supponing the EEOC's April 2Q 12 EnfOfttmtnt Guidance on the Use of Arrest 

and Conviction Records in Employment Decisions ("EnfoTCmlent GuidanceH 

or HGuidance") as 

an imponanl bipartisan update explaining the legal righlS and rnponsibilities of emplnyers under 

Title VII of tile Civil Rights Act of 1964. The Enforcement Guidance is a thoughtful, flexible, 
39 

and workable roadmap for employeB 10 follow. The Guidance eltplains to employm how to 

COOOUCI and use any appropriate background checks they reasonably require, without violating 

the rights lhaljob applicants have under Title VII. 

These comments emphasize the following points: 

Suoc~ful remtry requires lhal appropriate jobs be available to prople with criminal 

re<:onb. and too many employers use criminal history rewrd background checks to deny 

employment to qualified applicants 

The Enforcement Guidance encourages sensible use ofbackgrouoo checks; it does nOi 

restrict or discourages employers from conducting criminal history rewrd checks 

• The Satiety of Human Resoun:e Management and other management trade groups agree 

that tht Guidance sets out fluible , fair, balanced, and workable hiring procedures 

• No changes in legal requir-emcnts are reflected in the Guidance. It simply eltplains 

employcB' obligations under Title VII, based on court decisions. adopted by the EEOC 

in 1987 

• The EEOC developed the Guidance with the assistance of broad public input provided in 

two public hearings and in 300 public comments. 1 

I. In addition to the univmal aGreement thai apllfl)pri!llc job oPOOQunilia 

must be oprn 10 prople with criminal !N)rd,s. many witnesses at !be briefing emphasizes! the 

Krrrity oftbe barriers minority wmen - particularly AfriclIl]-Amcrican men - fMC in !he 

job market and Umt the combincsi effeC]S o( race and baying a criminal convictjpn deyastale 

!be job Prosoes:ls ofmjnorilY .... wken. doing great harm \0 their families and comm\!nilies. 

Each Commissioner and witness II the briefing who addressed the question 

IICknowledged that il is erilically important for prople with criminal records who ~ qualified, 

willing. and eITecti"e workeB 10 have fair and equalllCC~ to appropriatejobs.l Bul as .... ;tness 

I Commi"lonc" Ki""DOw,l leriOl, and Gaziano submillCd ajoinl comment opposing adoption of 

updated Guidan~. 

I$«, e,g .. Commissioner Gaziano (MTB [Master Transcript ofBriefingJIII. 42, lines 14-17: 1 ~iate 

tho imporWll:>C of re-entry proarams lhal help priso:Iner$ teenIer Ind rcen\J)' programs aftawards. This lias 

bm! a great interest 10 me for a number of~ "); Dr. SedgwKk (MTB III. B,lines 6-8: ~enhanc[in&J 

emplo)ment pn)$pCCIlI for tho Q.o(Iffm;kr in aidina sucassful ro-entty [Is] ... a goallhai we all share."); 

CommissioncrKirsanow(M'm. 212. lines "12: " I haven~ heard llIlybody say ... tha we don't support 

rein1tgJllion orthose with criminal ~s inlO sociefy."); Mr. Martin (MfBat 91,Iincs 1-7: Mllhinlt b.:k 

10t.he 2004 State of tho Union A~ ,,"here it ..... as ~idenl 6usb whosuggcsted that ... hen!he gatnoft.he 

prison open ..... ~ need 10 give people. second ~hanoe and that it should be a road 10. better life. And how do 

2 
40 

after witness testified, there is a deeply entrenched bias against hiring African Americans, 

particularly African-American men. Studies consistently show that the barriers to jobs are much 

worse for African Americans with a criminal record. The effect is that many African Americans 

with a criminal record are locked out of the labor market. 

Glenn Martin, now Vice-President of the Fortune Society, a !"IOn-profit agency with over 

80 ycars of ellperience working with people re-entering the workfor<:e after paying their debts 10 

society, described the results of one of the studies that the EEOC relied on in the Enforcement 

Guidance, a study in which he served as project director on behalf of the National H.I.R.E. 

NetwOl"k. Mr. Martin explained the study in his written sbtement (at page 3): 

To study present-day discrimination. Principle Investigators Devah Pager and 

Bruce Western collaborativcly conducted a field experiment in the low-wage 

labor market of New York City, recruiting white, black, and Latino job applicants 

who were matched on demognlphic characteristics and interpersonal skills. Thesc 

applicants were given equivalent resumCs, carefully manufactured by the research 

team, and sent to apply in tandem for hundreds of randomly assigned entry-level 

jobs in NYC. 

The rC$ults show that blaek pp ~a nts w~re half as likely as equally qualified 

whit es to rtteive a callback or j ob offer. In fa ct, black and Latino applicants 

with d ean backgrounds fa red no better than white applicants just rel eased 

from prison. Moreover, the positive outcomes for black applicants, when 

presenting evidence of a criminal r ecord, wer e reduced by 57" •. [Bold in 

original.J 

The results of the New York City stud; are typical of the findings of numerous labor market 

studies that have demonstrated bnth that African Americans. particularly men, Mve higher 

barriers to employment than do white workers and that having a criminal record does more hann 

to the job prospects of African-American workers, Hispanic workers and other workers of color 

than the hann having a criminal record does to the prospects of white job applicants. 

ThC5C points were made very eloquently by Dr. Harry Holzer, whose research was the 

starting point for this Commission's briefing. Or. Holzer made this primary point in his written 

testimony (page I): 'The prevalence of am:sts and convictions among les.'l-cducated American 

men substantially reduces employer willingness to hire them later in life and worsens their 

employment outcomes more generally, in ways that generate clear '·disparate impacts" on 

minority (especially black) men." In responding to questions from the Commissioners at the 

briefing, Dr. Holzer swnmarized his knowledge succinctly (MTB at 63-64): 

you get a beneT life ifyoudon~ have access to the labor market?"); M.s. MiUeT{for NAPBS)(MTB at 

pagcsI51-52: "we can all agree that reintegration of ex -ofT enders into society is imponant.,,). 

J As Mr. Manin testified, the New York stud~ replicated a stud~ conducted earlier in Milwauk«. 

Wisconsin. MTB at pages 86-81. 

) 
41 

Every study that I'm aware of that's ever looked at this, finds that black men are at 

the end of the hiring queue of employers. That .. of all the demographic groups 

black men face very substantial discrimination. Every audit study, rigorous studies 

wllere they $e!1d out matched pairs of applicants, find that employers are reluctant to 

hire black men. 

For many different reasons. Perhap~ some legitimate, perhaps not. And we know 

that the fear of criminal records almost certainly i~ part of that. And again, the work 

done by Bruce Western and Devall Pager, our work and others, suggests that's an 

important partofthat fear, 

Aulomatically disqualifying all applicants who disclose a criminal conviction on an initial 

job application _ no matter how old, minor, or unrelated to the position the conviction was - is a 

widespread practice that has devastating results on communities of color, As Roberta Meyers, codim:tor ofthc: Naliollal H.I.R.E, Project testified (MTB at 81 , lines 20-23): "8 criminal re.:ord is 

usually the nwnher one automatic disqualif1<:f for employment. And w<: know that m:my employers, public 

and privaLe. will go as far as OOIingonjob posLings ... such a thing. ~ Prior to the EEOC's issuance ofthc: 

updated Enforcement Guidance, the use of automatic disqualifiers wilScxtremely widespread, as 

doculTlCnted in a study by the National Employment Law Project. "65 Million Need Not Apply: 

The Case for Reforming Criminal Background Cheeks for Employment" (2011).' To address this 

problem, the Guidance recommends as Best Practice that employers follow the procedure 

popularly known as "Ban Ihe Box," i.e., oot asking candidates to disclose criminal history in the 

initial application, because "an employer is more likely to objectively assess the relevance ofan 

applicant's conviction ifit becomes known when the employer is already knowledgeable about 

the applicant's qualifications and ellpcrience." (Guidance, Section V·B·3, \ellt al n. 109.) 

When pt()ple who have criminal records an: denied opponunities 10 work, locking those 

workeT$ out of the job market has a devastating impact on low-income communities of color. As 

Dr. Holur emphasized (written testimony at page 3): 

Children and youth growing up in very low·income neighborhoods, where large 

fractions of adult men do not work, are likely to have even worse outcomes in life 

than those from similar families but better neighborhoods [citations omitted]. The 

absence of role models for work and labor market contllcts and connections for 

young men in these neighborhoods likely further worsens their employment 

opportunities in the future .... 

Prof. Holur also pointed out that noncustodial fathers who cannot find work cannot 

make child support payments . 

• The study is available ""line al htto;/lnelp.3cdn net/(: 1696a416l bc2c85dil 10m§2vj76 pdf, last accessed 

January 10.2013, al 12:05 p.m. 

4 
42 

The EEOC's Guidan<::e was sorely needed. Yel it is only a small first step in what will be a 

long journey to correcting the discrimination in hiring that so acutely affects people of color with 

criminal rewrds in their attempts to re--enter society after completing a criminal sentence. 

II. The record at the briefing plainly demonstrated tha! the EEOC designed 

the Guidance to help employers assess criminal history words sensibly; j! does nOI 

diSC9urage employers from doing criminal baekground chcrks. 

The testimony presented at Ihe briefing by Carol Miaskoff, Acting Associate Legal 

Counsel for the EEOC (wrilten statement at 1-2), could not have been more clear on this point: 

MThe updated Guidance does not prohibit employers' use of criminal background 

checks or criminal history information to make employment decisions. The 

Guidance does, however, outline how employers can use such background checks 

and the information they yield in a fact-based and targcted way that is consistent 

with Title VII." 

In other words, the Guidance has neither the purpose nor the effe<:t of reducing the use of 

criminal history record checks by employers. Instead, the Guidance illustrates appropriate 

procedures for evaluating candidates' criminal history information for those employers who 

conduct such checks. 

The Guidance suggests that a selection process can be shown to be demonstmbly jobrelated and consistent with business necessity when an employer follows two steps: 

(\) uses a targeted screen !hat, jltfer ulia, earefully identifies specific convictions that, 

if repeated in the position being filled, would present risks to the employer's legitimate 

interests and the length of time after the offense that the risks persist; and 

(2) for any applicant who has a record within the parameters orthe above screen, 

conducts an individualized assessment to determine whether the evidence ofrehabililation 

that the applicant offen persuades the employer that the applicant should not be considered at 

risk for C(Immining another crime. 

A. Individualized A§scssment 

With regard to the individualized assessment of an applicant with a criminal record, Dr. 

Jeffrey Sedgwick's testimony was critical or the EEOC's use of social science research data in 

the Guidance, but in fact Dr. Sedgwick's own review of social science data strongly supported 

the EEOC's recommendation for using an individualized a§scssmem. 

[n his written testimony (at page 10), Dr. Sedgwick endorsed the views of Prof. 

Strohilevitz thai, to evaluate the risk of hiring an applicant with a criminal history, "decision 

makers Ishould havel somelhing thai ap proximales (omplcte info rmation about each 

s 
43 

applicant, so Ihal readily discernible facts like race or gender will not be overemphasized and 

more obscure but relevant facts, like pasl job perfonnance and social capital, will loom larger.~ 

[Emphasi$ in bold added.] Past job perfonnance is one of the main indicators to be consulted in 

the individual assessment. (See Guidance at Section V-B-9). From Ihe social science literature, 

Dr. Sedgwick identified several other factors that he found to be particularly relevant for 

evaluating the potential success of person with a criminal conviction history as an employee, as 

follows (at pages 4-5): 

I) The number of past offtnse, committed by someone is a good predictor ofwhcther he 

will commit crimes in tkc future. 

2) Lack of education increases the risk of committing another crime and, conversely, 

att aining more formal education makes re-offending less likely. 

3) Success in overcoming a substance abuse probtem is ollen a positive faclor for people 

who avoid committing crimes aller serving a sentence. 

4) A person who is in a sta ble family relationship is much less likely to commit crimes in 

the future. 

In the firsl two factors, Dr. Sedgwick endorses elements Ibal are similar to those the EEOC 

Guidance reo::ommends employers consider as part orthe individual assessment (i.e., tkc number 

of prior criminal convictions and whether the applieanl h.as post-offense educational 

achievement; see Guidance at Section V-B-9). As for the Ihird and fourth factors, Dr. Sedgwick 

apparently take$ the view, based on the researeh literature, that tkc Guidance would be improved 

ifit also recommended that employers consider both the time a penon with a criminal history 

h.as been "clean and sober," i.e., in recovery from alcohol or drug dependence, and whether he 

maintains stable family supportive relalionships. The undersigned groups support criminal 

records policies thai give applicants an opportunity 10 provide evidence of rehabilitation thai may 

include sobriely and/or stable family supportive relationships of all types. 

B. Negligent Hiring Liability and the Guidance 

The Guidance provides employers with infonnation effectively 10 avoid negligem hiring 

liability. An employer that uses the selection process outlined in the Guidance is virtually certain 

10 be prolected from liability for negligent hiri ng. When employers carefully consider tile risks 

present in particular job$, they will find that, as courts have observed. j mostjob$ do not pose 

, See, e.g .. Ponticas Y. KMS Invs .. 331 NW.2d 907, 913 (Minn. 1983), discussing rc<jui",,,,,,,ms wh<cn lh~ 

job requires an employee "to regularly deal with members oflhe public.

q Unless there is some panicular 

aspect oflhejob lhal requires greater concern (such as access to passkeys to apartments), Ifth e employer 

has made adequate inquiry or otherwise ltas a reasonably suffic ient basis to conclude the employee is 

reliable and fit for thcjob, no affinnative duty rests on him to investigate lhe possibility Ihallhe applicant 

has a criminal record." Seeolso. EW11lJ Y. Morse/I. 284 Md. t60, 167, 395 A.2d 480. 484 (1978). 

6 
44 

risks that require a criminal background che<;:k. Most cases imposing ncglib'C11t hiring liability 

that involve individuals with conviction histories arise when the employer has complctely failed 

to do either a check of all references or a criminal history records check. Julie Payne, General 

Counsel for the U.S. operations ofG4S Secure Solutions (USA). IIIC .• a unit ora global private 

security company. included cases in her writtell testimony where doing a proper background 

che<;:k before hiring absolved the employer from liability for alleged IIcgligellt hiring (page 13, 

Appendix A, bottom ofpagc). 

There was speculation by some witnesses and Commissioners at the briefillg that the 

prospect of the EEOC's eilber bringillg an ellfor<:ement actioll or conducting a probing and 

expellsive illvestigation ofan employer's criminal history records screelling practices would 

cause some employer, somewhere, to stop doing criminal history background checks to avoid the 

expense of defending an investigation of potential Title VII liability.6 Bul this speculation was 

not supported by specific facts, or even by anecdotes. Garell Dodge, for example, admined that 

he Ilad not heard of any case where a compallY was considering discontinuing background 

che<;:ks b<xause of the EEOC Enforcement Guidance. (Dodge, MTB at 116-17.) 

Ms. Payne said in her written testimony (at page 4) that employers perceive "[t]he 

potemial costs of not screenillg [for criminal records] are enonnous," and that ill her experience 

the "average" award in a negligent hiring case is as much as three million dollars. But while 

employers may fear multi-million dollar verdicts in negligent hiring cases (ill part b<xause 

consultants and counsel fan this particular flame), whether significant numbers of such verdicts 

actually exist is suspecl. In olle paragroph, Ms. Payne cites three widely different "average" 

award figures, all of which are ultimately sourced only to web pages maintained by human 

resources c0ll5ll1tllnts or liability consu]tilllts who use those pages to promote their services.1 

• While Ms. Payne complained that her company had spent "hundreds of thousands of dollars" in 

defending an EEOC class-wide investigation where the company had refused to hire a minority 

candidate fOT a security guard position whell it found he had two misdemeanor theft convictions. 

(Payne, MTB at 99-100) it is hard \0 evaluate the merits of her complaint that the EEOC 

investigatioll is unreasonably burdensome, since she did not specify the anllual revenues and 

profits of this privately held multi-national company that employs more than 33,000 SC(:urity 

guards ill the U.S. alolle (Payne, written testimony al 2). Nordid she describe the company 

policy the EEOC is investigating. If the policy beillg reviewed is 311 automatic, permanent 

disqualification of any applicant ever convicted ofa misdemeanor, it is hardly surprising that the 

EEOC has decided to open a systemic investigation of the company - such a policy would very 

likely have 311 adverse impact on minority applicants and would violate the fundamental 

principle3 of Title VII thallhc fcdc.."l court:l ftlld the EEOC enulleiatcd over 25 years DgO. 

, &e Payne written testimony al page 5: 

Despite employers· efTons in this area, they lose more thall 70 percent of such lawsuits, and the 

Ilvt:Ngt jury p/lli" tijJ" ... " rd is m(1't tlran 51.11 milli"" . Approximately 66 percent of ntgligtnt 

hiring "illis nsull in """",Is Il PtNlgi"g SIIM,OM in d"m"g~. "The Workplace ViolclICe 

7 
45 

Further, the majority of~ases claiming "negligent hiring" involve employees who are alleged to 

be "unfit" for a wide variety of reasons Ihat have nothing to do wilh having a erimin.al record" 

In sum, while the risk of an employe r facing a multi-million dollar verdict or settlement may 

exist, that risk is remote. [f employers follow the procedures recommended in the Guidance, the 

possibility that the EEOC will launch a class-wide investigation is at least equally remote. 

Certain positions that involve access to homes or care of children, Ihe elderly, or people 

with disabilities, include higher levels of care in hiring decisions. Employers who have such 

positions in their workforce know fu ll well that they need to conduct criminal background checks 

when they hire new employees fOT these positions and are frequently required to do so by state 

and federal laws. The Enforcement Guidance provides these and other employers with a 

roadmap to uc~essfully perform such evaluations. 

Ill. As confimled by the testimony of the representalive from the Society for 

Human Resource Manal!$ment and other witnesses. the Guidance sets out l1e~ible. fair, 

balanced. and worlcable pf9Cedures for assessi ng what prior convictions art relevant 10 1M 

risks presented in the job and for evaluating applicants wOO have convjctions 

The Society for Human Resource Management (SHRM) is the leading a!lSQCiation in the 

world for human resource professionals. Mr. Segal, representing SHRM, testified (written 

testimony at pages 5-6) that when the updated Guidance was issued in April, 2012, 

"SHRM members were pleased to see that Ihe guidance did not impose any new 

bright-line rules explicitly designed to prohibit employer access to and use of 

certain infonnation. Instead, the Commission. in this guidance, continues to 

embrace use of the long-standing three-factor test identified by the case Green v. 

MiSSQt/ri Pacific Railroad Company when evaluating crimina] history. [Nature of 

the offense, nature ofthejob, and time elapsed since conviction or completion of 

sentence.] ... l1Icse factors are familiar to HR professionals. Indeed, SHRM has 

nOI received significanl negalivefeedbackfrom ils members aboUllhe guidance 

as u whole. HR professionals have long taken seriously the need to balance the 

rights of job applicants against the needs of the employer when criminal history 

information is considered." [Emphasis added.] 

Research Institute reports !hal /he a"",rage juryaward/or c;';/ sui/$ On behalfoflhe injured is $J 

million. [Bold italics added; citations omined.] 

Mr. Dodge' . written te£limony citH the urne th_ Ilgu...,. (POll'" 5, text.t noIe t).nd page 6. tut at 

notes Ig-]9). Neither M ... Payne nor Mr. Dodge ofTer any explanation of why they assen three mutually 

incompatible ~avernge~ award figures as uue facts aOOotjury awards in neglig~nl hiring cases. 

I f or example, a clO5e reading of the descriptions of negligent hiring cases ciled in the wrillen testimony 

of Ms. Payne and Mr. Dodge reveal. thaI the majority ofthesc cascs had nothing \0 do with hiring an 

employee who had a prior criminal conviction. 

8 
46 

Since the Guidance fundamentally refleds only a restatement, with ~e clarification and 

additional detail, of long-standing principles followed by many human resouree managers, il is 

natural that e~perienced human resouree personnel do not see the Guidance as discouraging!he 

use of criminal background eheeU. As Mr. Segal testified in ~ to a question from 

Commissioner Gwana (MIB at 200. lines 15-21): 

In my e:xperieoee, as an attorney who advises eiimlS, and in SHRM's 

u~nce. this has not resulted generally in employers diseontinuing use of the 

background checks. Whal we have seen as employers looking 10 lhe guidance u 

juS! that {sic. i.e., as "guidance"] and in reviewing more carefull y the Green factors. 

Other human resource professionals and InIdc association rq>rellC11latives also indicated ill 

their testimony that the Guidance provides guidelines for employers that are fle:xible, fair. balanced 

and workable:. Mr. larson, who COIl$UIIS \\-ith small busiroesses ranging from 15 10 300 employees, 

observed that smaller businesses that had no( bem previously alert 10 the issues addressed aIIeW in 

the EEOC's updated Guidance should no( evm need to add stafTlO comply fully with the 

reconuncnded procedures..' 

IV. The Guidance did not change IIny legal requjrements. jl sjmply dess:ribed a 

practical melhod for emplowrs 10 comply wilh the legal reguiremellts of Tjt]e V]! 

The updated Guidance i$.Sued in 2012 was primarily a restatemmt and consolidation of 

prior policy documents issued during the Chainnanship ofClan:occ Thomas. (EEOC 

EIlfon:emcnt Guidance, Section II, text at nn. I S-16 and those notes.) As Ms. MiaskofT also 

testified at the briefing, those poliey statements grew out ofa series of decisions by the EEOC in 

the 19705 and early 19805 that found criminal record disqualifications discriminatory based on 

an analysis similar to the Green factors noted in the preceding section oflhese comments. 

(MiaskofTwrilten testimony at 2, notes 4-5.) 

AS noted in Mr. Segll's testimony, since the Guidance utilizes the Green factors, longestablished cooccpu thaI are fllIDiliar and comfortable for human resource managers to apply, 

professionals in human resources have not rc-poned encounlCring $ignificant difficulties in 

• MT. I,.aJ1On testified lhatlhe evaluation processes an: familiar lOernploycn who comply with OIlier 

federal 5!atUles such as the AmericAr'IlI with Disabilities Act Amendments Act (ADAAA) and lhe Flmily 

and Mcdicall.eave Act (wriuen tal~ment II page 3): 

The actualtimc to mak~ an individualiwl ~--cuc evaluation should 001 be overly 

btirdenaome upon the empLoyer on"" ,hi. i ... "" 1"""""'" i ... 1f "' $% no- Ia. of MIIIinaent 

job offcra and once the data ;1 ptlltftd. decisions can be make nther quickly. 

Compania .I ~ mined to make decisions ~ganlina >a:fUC$IS for ~ble 

,,"ommooiation under the ADAM will quickly grasp ,he It~ in lhe ~mended 

analysis process. n.ose famili. r with pnx:essing FlMA leave ffijUe5!5 will haye. similar 

analytical fntmework. 

9 
47 

following the procedures ruommcnded in the Guidan<:e for using targeted screens and 

individualized assessment to apply the Green factors to hiring applicants. 

V. The EEOC developed the Guidance over a period ofmany years wjth the 

assjstance ofbmad public input provided in two publjc hearinGs and jn 300 public comments. 

The EEOC conducted a thoughtful and thorough process in soliciting input on this issue 

of critical concern to millions of U.S. workers. Beginning in 2006. under then Chair Naomi Earp, 

the EEOC conveyed its intcrest in updating the Enforcement Guidance on the Consideration of 

Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act 

of 1964. According to Commissioner Victoria Lipnic, this update was Ilecessary "in light of the 

technological and case law developments of the last two decades'· since the Commission first 

issued the guidance under Chairman Clarence Thomas in 1987. ,D 

The EEOC has held several open meetings through which it has solicited and received the 

views of a divcrse set of stakeholder groups, including employer representativcs, and participated 

in numerous forums organized by the key stakeholders." The EEOC invited leaders from the 

management community to participate on panels at public EEOC m~tings in 2008 and 2011. At 

the 2011 m~ting, the Commission received infonnalion about employer best praetices for hiring 

individuals with criminal records. The Commission received roughly 300 comments after its 

July 2011 meeting, many of which were from employer representatives, small business owners, 

and human resource professionais.'l Virtually every major industry group with a stake in 

,. Commissioner Lipnic's statCll"'nt upon voting to adopt the Guidance, April 25, 2012. page l. 

"Me Mee1ing of November 20, 2008 _ Employment Discrimination Faced by Individuals with Arrest 

and Conviction Records III hllp :lfwww.~.gov ecoclmeetings.lll·20'{)81inde~.cfnt and M«ting of July 

26, 20 II _ EEOC to Examine Arrest and Conviction Records as a Hiring Barrier al 

http ://www.~.gov eeoclmwingsl7·26·llfind ~.cfnt. 

" The views of the organizatioM and constituencies thaI this Commission invited to testify at the briefing 

"'"Cre all presented to the EEOC in public conunents. In addition to the CQmments submittedjointly by 

Commissioners Kirsanow, Heriot and Gmano. critical orc3utionary CQmments about updating the 

Guidance were submitted by Mr. Dodge on behalf of the Council for Employment Law Equity; by Ms. 

Bone for Sue Weaver CAUSE; by the National Association of Professional Background Screeners; by the 

National Retail Federation: and by th~ Society for Human Resource ManagCll"'nt, all of whom presented 

\estimony at the briefing on December 7. Though Mr. Fishman's finn did not submit conunenlS, i~ or 

eighl consumer reporting agencies like hts company did, lO addition to the comments submitted by their 

association. The National Small Business Association does not appear to have commented to the EEoc, 

but the CQOcems of many of its constituents were undoubtedly ren«ted in the comments submitted by the 

National Federation of Independent Bl.ISiness. Mr. Dodge's discussion of neg ligen I hirins, retention and 

supervision cases also covered most of the substance ofthe statement of Ms. Payne at Ihe briefing on 

hehalf ofGS4 and private security companies. 

10 
48 

criminal history record cheeb made its views known to the EEOC.

1l Notably, the comments 

were IWO to one in favor of updating Ihe Guidance. 

When dmfting the 2012 Enforcemenl Guidance, CommissiOl1 stalTagain met with various 

employer and employee representatives 10 obtain focused feedback on discrete issues. This 

review process culminated in lhe Commission's April 2S, 2012, bipartisan vote to Ipprove the 

Enforcement Guidance. 

VI. The faet that Congress expressly provjded in Titl e VII that the fedeml 

statule Pre=cmpts any state o r loca l laws Ihal rtgvire an eruployu to yiolate Tine VI!. as 

stAled in the Guidance. creates!he thcon;!ical poIemial for employers to face conflicting Ic@1 

obligations. but few employers will ever encountc r such a conflic t in the real world 

Some COII«TII has been rai5Cd because the Guidaru;e states that assened compliance: with 

state or local law is not a defense to a violation ofTitlc VII." Ms. MiaskolTcxplained this 

provision very plainly (MiukolTwrilten testimony al page 10): 

Title VII prohibits disparate impact discrimination and il also ineludC$language 

Iha! preempts SUle or local laws when those laws " purpor1[J to require or permit 

Ihe doing of any act which wo uld be an unlawful employment practice" und .... the 

llatutc. [Citing 42 U.S.c. f 2QOOc.7.] Therefore, if an employer's exclusionary 

policy or practice has a dispanlle impact and is 1101 job related and consistent wilb 

busines5l)CCeS15ity, the fact thaI il was adopted to comply with. state or local law 

does not shield the employer from Title VII liability. 

The ciled seelion of the stalute haJ been in place since 1964. II is nol the EnfQlttment 

Guidance, bUI Tille VII itsclfwhie h preempts state o r loc.llaws that require an employer 

to viola le Title VII. It would be. di.ucrvice 10 employers iflhe EEOC were to fDilto 

inform them about Title VII's preemption of state law in thi, area. 

" Ao::ording to • lilt of!be public commenu "" fiLe III !be EEOC, compiled by !be National En1JIloyment 

Law Project" signatory to Ibis letter, ..... jor ... tionaI businca and tnde lSIOCialions IlIat weighed in with 

public comments included !be U.S. Chamber ofComrnc-ru, Ame-rican Bankers Association, American 

Camp Association, American IJuurmKc: AJ.soo;iation, Food Mark~ing l.witule, International AJaociation 

of Amuse .... nt Parks and Anrac:liOlls.lnlCmational Associalion of Exhibitions and Evenu, National 

F~deration oflndependenl BusiJ>CI.S, National Mult; Hoosing Coone il (NMHC) & National Apartment 

Association (NAA), National Coundl oflnvt.tigative and Security Services (NeISS), ~roleum 

Marketers Associalion of America, and Retail Industl)' Luden Association. 

" Footnole 167 of the Guidance states.: 

SH Int'l Union v. Johnson Control., Inc .. 499 U.s. 187,210 (1991) (noting Ihat1i]fllate ton 

law funben discrimi ... li"" in ~ WOItplac:e and jm:~11 employers from hiring women who 

In!: capable ofmanufacturin& the product as efficiently as men, then i\ will impede the 

lI;Complishment of Congress' pis in enacting Tide VII"); Gulino v. NX SUIte Educ. Ocp·I. 

460 F.ld 361, 380 (ld Cir. 2(06) (. mnning!be dimicl court's conclusion that '"the mandates of 

state law arc no defense 10 Title Vll iiabilily"). 

II 
49 

None of the "itnesses at tile briefing could relate a single instance in which one of 

their members or customers had identified a state statute or loc:allaw that might require 

an employer to violate Title VII. Su o c.g .. Commissioner Kladney's question 10 the third 

panel of witnesses (MTB at 217-18): none of those panclisu were ."'al'e or. single 

ins~ where. state statute that requirtd. disqualification had been ickntified as, 

potential conniet between state I,w and Title VII. 

11le strict requirermnu to prove, dispamte impact violation cin:umscrilx! 

narrowly the statutes that can present employers with this type ofconnict. State statutes 

~ not preempted simply be<:ause the statute requires background cltecks. but only if the 

statutes impose excessive disqualificatiolU. Not only must' $Iatutory disqualification 

have dispamte impact on minority worken, but tlte requirtd disqualification must be 

without relation 10 the job and not be required by business nect$Sity. II is not surprising 

that none of the "i~ at the briefing could identify even one employer who has f!lCed 

• connict crea.ted by suclt, statute. 

Conclusion 

The EEOC Enforcement Guidance on the Use of Arrest and Conviction Records 

in Employment Decisions, as updated by the EEOC in 20 12, is a thouglttful, flexible. and 

workable roadmap for employers 10 follow. The Guidance explailU 10 employen how to 

conduct and \IX any appropriale background checks they reasonably require, without 

violating the rights that job applicants have under Title VII. 

We thank the Commission for the opportunity 10 present tbese commenu for the 

Commission's consideration in preparing any report on the briefing. If you have any 

questions. ple85C contact Ray McClain PI The Lawyers' Committee for Civil Rigltts 

Under Law at nncdain@laW)'$'rscommill£(;orgorLexerQuamiept The Leadersltip 

Conference on Civil and Human Rights at auamje@<:jvjlriith\S,ora. 

Respectfully submitted, 

Ray 

~~ P. McClain 

Director, Employment Project 

Lawyers' Comminee for Civil Rights Under Law 

1401 New York Avenue, N.W., Suite 400 

Washington, DC 20005 

Joined by the follo"ing organiutions: 

9toS [organiutions continued on following page] 

12 
50 

[Additional submissions of Ms. Berrien follow:] 

[The EEOC report, ‘‘Strategic Plan for Fiscal Years 2012-2016,’’ 

may be accessed at the following Internet address:] 
51 

http://www.eeoc.gov/eeoc/plan/upload/strategic_plan_12to16.pdf 

[The EEOC report, ‘‘Strategic Enforcement Plan FY 2013-2016,’’ 

may be accessed at the following Internet address:] 

http://www.eeoc.gov/eeoc/plan/upload/sep.pdf 

[Questions submitted for the record and their response follows:] 

U.S. CONGRESS, 

Washington, DC, July 16, 2013. 

Hon. JACQUELINE A. BERRIEN, Chair, 

Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 

20507. 

DEAR CHAIR BERRIEN: Thank you for testifying at the May 22, 2013 Subcommittee 

on Workforce Protections hearing entitled, ‘‘Examining the Regulatory and Enforcement Actions by the Equal Employment Opportunity Commission.’’ I appreciate 

your participation. 

Enclosed are additional questions submitted by committee members following the 

hearing. Please provide written responses no later than August 16, 2013, for inclusion in the official hearing record. Responses should be sent to Owen Caine of the 

committee staff, who can be contacted at (202) 225-7101. 

Thank you again for your contribution to the work of the committee. 

Sincerely, 

TIM WALBERG, Chairman, 

Subcommittee on Workforce Protections. 

QUESTIONS FROM CHAIRMAN WALBERG (MI-07)

Questions addressing the EEOC’s recent and proposed enforcement guidance, and 

the process by which it is promulgated. 

1. What new enforcement guidance is the EEOC considering issuing and can you 

provide a timetable for issuing any new guidance? Specifically, is the EEOC considering new guidance on reasonable accommodation under the Americans with Disabilities Act? Finally, can you give us your assurance that any future guidance will 

be provided to the public for comment prior to making it final? If not, why? 

2. On May 8, 2013, the EEOC held a hearing regarding employer wellness programs under the varying requirements of federal non-discrimination laws, the 

Health Insurance Portability and Accountability Act, and the Patient Protection and 

Affordable Care Act. The health care law codifies and expands the existing rules for 

workplace wellness programs, and proposes to increase, from 20 to 30 percent, the 

amount by which health plans can vary their premiums for participation in wellness 

plans. The health care law also endorses the value of workplace wellness plans by 

requiring health plans offered through health care exchanges under the law to include wellness and chronic disease management as a core benefit. In light of the 

health care law’s treatment of wellness programs and the existing federal regulatory 

scheme governing their structure, does the EEOC plan to issue guidance on workplace wellness programs? If so, will the EEOC work with the Departments of Labor 

and Health and Human Services in promulgating this guidance? Will the EEOC 

allow for a notice and comment period on any wellness guidance they consider? 

3. The EEOC, along with other federal agencies, has specifically focused on gender 

pay discrimination. The EEOC is part of the National Equal Pay Task Force and 

provided compensation discrimination training to enforcement personnel across 

agencies. The Office of Federal Contract Compliance Programs (OFCCP) recently rescinded its enforcement guidance on pay discrimination and replaced it with broader 

investigation procedures, without providing much guidance to help employers determine proactively whether or not they are in compliance. What are the EEOC’s current plans with regard to gender pay discrimination guidance and enforcement? 

How has the EEOC coordinated with other agencies, including the OFCCP to ensure 

employers do not face conflicting or overly burdensome regulation in this area? 

4. Several studies show a relationship between a poor credit history and risk of 

loss to a business, a customer, or a fellow employee. How does the EEOC plan to 

use empirical, scientific-based evidence in the development of new guidance, specifically credit history guidance? 
52 

5. Employers conduct credit checks to protect them, their customers, and other 

employees from financial harm. For example, the Association of Certified Fraud Examiners (ACFE) said in a recent report that the top two red flag warnings exhibited 

by perpetrators associated with fraud were instances in which the fraudster was living beyond his or her financial means or experiencing financial difficulties. Further, 

employee theft accounts for nearly $1 trillion annually. Employers are troubled by 

the prospect of limits on the use of credit histories for employment. Will the EEOC 

issue credit guidance? If the EEOC intends to issue credit guidance what is the timing? Will that guidance go through the APA, OMB, or Comptroller General review 

process? If not, why not? 

6. Your guidance on criminal background screening is 55 pages long and contains 

167 footnotes. It requires complex individualized assessments involving a multitude 

of amorphous factors. Even sophisticated attorneys may not know how to advise 

their clients. Please provide the questions you have received regarding this guidance 

and the responses to those questions provided by the EEOC. 

7. The EEOC and the Federal Trade Commission are working together on FAQs 

to the EEOC’s criminal background check guidance. Will the FAQs address employers’ responsibility under the EEOC guidance and the Fair Credit Reporting Act? 

What is the status of the FAQs? 

8. Central to the EEOC’s criminal background check guidance is the requirement 

that employers conduct an ‘‘individualized assessment’’ coupled with a targeted 

screen. While not mandating such, the guidance states that ‘‘although Title VII does 

not require individualized assessment in all circumstances, the use of a screen that 

does not include individualized assessment is more likely to violate Title VII.’’ It 

also states a targeted screen coupled with an opportunity for an individualized assessment is a circumstance in which the EEOC believes employers will consistently 

meet the ‘‘job related and consistent with business necessity’’ defense. How does the 

EEOC intend to enforce individualized assessments? By strongly urging employers 

to conduct ‘‘individualized assessments,’’ the guidance imposes a new burden on responsible employers seeking to comply with it and avoid an EEOC investigation. 

Will enforcement in this area be driven by whether an employer has developed a 

screen and conducts individualized assessment, and, alternatively, will lack of any 

screen or individualized assessment be grounds for an EEOC investigation? 

9. Is there a time or point in the hiring process when the EEOC believes it is 

appropriate to conduct a criminal check? Is it ever appropriate to ask about criminal 

history on an application? Is it ever appropriate to consider criminal history prior 

to an interview? 

10. Regarding the EEOC’s criminal background check guidance, what if an employer finds out an individual lied on his or her employment application regarding 

their criminal history? If that individual is fired for their lack of honesty about a 

prior conviction, could the employer still run afoul of the guidance? 

QUESTIONS REGARDING THE EEOC’S DELEGATION OF LITIGATION AUTHORITY TO THE

GENERAL COUNSEL

11. The general counsel is required to bring a case before the EEOC for a vote 

to proceed to litigation in four instances, including those in which the case would 

likely create public controversy. What types of cases would fall in this ‘‘public controversy’’ category? Given the high level of interest on the criminal history background checks guidance, and its controversy thus far, do you expect the general 

counsel to bring such cases before the commission for a vote to proceed prior to litigation? 

12. Should the EEOC decide to pursue litigation that considers partners as ‘‘employees,’’ would you expect the commissioners to vote on whether to commence any 

such litigation? Would you expect such litigation to trigger any of the instances in 

which the EEOC requires commissioners to vote to proceed? For example, do you 

believe the litigation would have a high likelihood for public controversy? Would it 

involve a major expenditure of resources? Would it present issues in a developing 

area of law? 

13. In 2012, 122 lawsuits were filed in the name of the EEOC, but only three of 

those were submitted for the commission’s consideration. Do you feel this is an appropriate proportion? Were fewer than 3 percent of the lawsuits brought in the commission’s name last year appropriate for submission to the commission? 

14. Courts have recently found several cases brought by the EEOC to be 

meritless. For example, the EEOC was ordered to pay the defendants’ costs and attorneys’ fees in the Peoplemark and CRST Van Expedited cases. Did the commissioners approve the commencement of litigation in those cases and if not, why not? 

Given that the EEOC as a whole is ultimately accountable for outcomes in litiga-
53 

tion, do you agree the commissioners should play a greater role in approving cases 

that proceed to litigation? 

15. The commission has delegated authority to district directors to negotiate settlements and conciliation agreements, and to make reasonable cause determinations 

in a wide range of circumstances. How does the commission exercise oversight of 

that delegation and what limits are imposed on the discretion of district directors? 

QUESTIONS REGARDING THE EEOC’S POLICIES AND PROCEDURES IN INVESTIGATIONS

AND LITIGATION

16. President Obama has commented on the importance of transparency in government. The EEOC’s commissioner charges generally result in broad-based systemic investigations of an employer’s business practices and can be based on a commissioner reading a newspaper article about a company or a company’s hiring statistics. Is the EEOC required to explain or articulate any basis for the charge or 

what led to the charge before the employer is subjected to a broad-based systemic 

investigation by the EEOC? Do you believe the approach is consistent with the importance of transparency in government and due process in our legal system? 

17. Why has the EEOC focused on conducting directed investigations, as opposed 

to investigations initiated in response to a complaint? How does the EEOC decide 

whether to spend resources on directed investigations in light of the substantial 

backlog of complaints? 

18. In many cases, the EEOC engages in a ‘‘conciliation’’ or settlement process, 

regularly demanding the statutory maximum in terms of a monetary settlement 

offer and insisting on sweeping changes to the employer’s human resource operations. Frequently, the settlement demands have no relationship to the historical 

jury verdicts in the region, and generally do not take the employer’s defenses into 

consideration. What steps are you taking to ensure the EEOC is engaging in effective, good-faith conciliation prior to litigation? 

19. For years, the EEOC has litigated challenges to proper conciliation with varying degrees of success. Currently, the EEOC is taking two completely new litigation 

positions: (1) courts have no authority to review the EEOC’s conciliation efforts; and 

(2) no information about conciliation can be put before a court unless the EEOC consents. These positions make the EEOC accountable to no party or court for its conciliation efforts. After almost 40 years of litigating the issue of conciliation, why is 

the EEOC now attempting to take that issue off the table? Please provide any and 

all documentation regarding this EEOC position. 

20. Why do certain EEOC regional directors refuse to share information about 

what the EEOC learned during its investigation during the conciliation process even 

though they ultimately must do so in litigation if conciliation fails? Wouldn’t sharing 

relevant information with the target of the investigation help resolve more cases 

and accomplish the goal of compliance with Title VII? 

21. Private lawyers who sue employers engage in a cost-benefit analysis to determine whether the cost and risk of going forward to trial is warranted by the potential financial outcome. As the steward of taxpayer dollars, do you believe the EEOC 

should do this too? What are the EEOC’s procedures for resolving cases in a timely 

manner to reduce costs to employers, and ultimately the taxpayer? 

22. The EEOC’s Strategic Enforcement Plan states the EEOC has superior access 

to data, documents, and potential evidence of discrimination in recruitment and hiring, and therefore is better situated to eliminate barriers in recruitment and hiring 

than are individuals or private attorneys, who have difficulties obtaining such information. In determining whether to bring other systemic litigation, does the EEOC 

consider whether the individuals affected have the means and ability to seek redress 

through private civil litigation? In your view, should it do so? 

23. In litigation, the EEOC claims an attorney client privilege with charging parties and claimants. But in practice the EEOC does not consider their wishes when 

deciding whether to settle a case or go to trial. Why should the EEOC be able to 

have it both ways unlike attorneys in other litigation? 

24. The EEOC is required to establish or make available an Alternative Dispute 

Resolution (ADR) program that may be available for the pre-complaint process and 

the formal complaint process. The EEOC, however, may make a determination regarding whether to offer ADR in a particular case. 

a. Once a decision has been made by EEOC as to whether to offer ADR, are the 

parties involved notified of that decision prior to further administrative contact? If 

not, why not? 

b. What percentage of cases does the EEOC offer ADR in the pre-complaint process? 
54 

c. What percentage of cases does the EEOC offer ADR in the formal complaint 

process? 

d. Does the EEOC offer ADR during initial counseling of the complainant? If not, 

what informal methods of resolution does the EEOC counselor offer? 

e. How does the EEOC decide whether to offer ADR in a particular case? 

f. In deciding whether to offer ADR in a particular case, does the EEOC take into 

account a claimant’s desire to mediate, litigate, or settle? 

25. When a complainant wishes to file a class complaint after initial counseling, 

the complaint is sent to the relevant EEOC field or district office, where an EEOC 

administrative judge determines whether to accept or dismiss the class complaint. 

To be certified as a class, the administrative judge must decide the certification requirements of numerosity, commonality, typicality, and adequacy of representation 

are fulfilled. 

a. Does the EEOC separately communicate with each member of the proposed 

class in its determination of the class certification requirements? 

b. Does the EEOC collect documents and other non-testimonial evidence from 

each member of the proposed class in its determination of the class certification requirements? 

c. Is the employer notified during this process a class complaint is under consideration? If not, why not? 

26. In fiscal year 2012, how many lawsuits did the EEOC win outright, through 

jury verdict or summary judgment? 

27. The EEOC claims process has a costly effect on small businesses, especially 

when the case is litigated. What are the EEOC’s internal procedures for resolving 

cases in a timely manner to reduce costs to employers, and ultimately consumers? 

QUESTIONS REGARDING PARTNERSHIP AGREEMENTS AND THE DEFINITION OF

‘‘EMPLOYEE’’ UNDER FEDERAL NON-DISCRIMINATION LAW

28. As the Supreme Court noted in Clackamas Gastroenterology Assocs. v. Wells, 

the definition of ‘‘employee’’ in anti-discrimination laws—that it is ‘‘an individual 

employed by an employer’’—is ‘‘completely circular and explains nothing.’’ Thus the 

determination as to whether partners in a particular partnership are ‘‘employers’’ 

or ‘‘employees’’ is based on a multi-factored, facts-and-circumstances test. To the extent the statute needs clarification, do you believe litigation is the proper avenue 

through which to define partnerships? 

29. Today, most partnerships, particularly large partnerships, adopt internal management practices such as governing boards that allow them to delegate managerial 

functions while maintaining partner ownership of the firm, control over professional 

work product, and voice on issues critical to the partnership. In your view, does the 

delegation of partnership authority to internal governing boards transform the partners of a firm into employees rather than employers? What factors, in the EEOC’s 

view, are most critical to determining whether and when such a delegation transforms partners into ‘‘employees?’’ 

30. In the last decade the EEOC brought a highly publicized lawsuit against the 

law firm Sidley Austin, alleging its partners were employees and its retirement policy for partners therefore violated the Age Discrimination in Employment Act. 

What, in the EEOC’s view, were the most significant characteristics of Sidley’s partnership structure that led the EEOC to conclude that its partners were ‘‘employees?’’ 

31. Is the EEOC currently pursuing directed investigations of mutually agreed 

upon retirement policies for partners that were not commenced following a charge 

filed by a partner? If so, what factors did the EEOC consider in deciding to prioritize 

those investigations over the tens of thousands of backlogged cases involving employee complaints? 

32. The EEOC’s Strategic Enforcement Plan lists six enforcement priorities. Do 

you intend to make mutually agreed upon retirement policies in legal and accounting professional partnerships a focus of the EEOC’s enforcement efforts? If so, which 

of the six enforcement priorities identified in the Strategic Enforcement Plan make 

mutually agreed upon retirement policies for partners an EEOC priority? 

QUESTIONS REGARDING THE EEOC’S INTERACTION WITH THE DEPARTMENT OF LABOR’S

OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP)

34. Did the EEOC comment on the OFCCP’s rescission of the agency’s 2006 Compensation Standards and the issuance of OFCCP Directive 307? Why not? The 

EEOC agreed with the 2006 Compensation Standards. Has the EEOC’s position 

changed? 
55 

35. As you know, Executive Order (EO) 12067 requires the EEOC to ensure coordination of federal equal employment opportunity enforcement efforts. In particular, EO 12067 requires the EEOC ‘‘to develop uniform standards, guidelines, and 

policies defining the nature of employment discrimination’’ and ‘‘develop uniform 

standards and procedures for investigations and compliance reviews.’’ Did the EEOC 

review OFCCP’s notice of rescission of the 2006 Compensation Standards and the 

issuance of Directive 307 under EO 12067? Did the EEOC provide any feedback to 

OFCCP about the approach contained in Directive 307? Please provide any and all 

correspondence between the EEOC and OFCCP on this subject. 

36. Under the EEOC’s Compensation Manual, published in 2000, the EEOC instructs investigators to ‘‘determine the similarity of jobs by ascertaining whether the 

jobs generally involve similar tasks, require similar skill, effort, and responsibility, 

working conditions, and are similarly complex or difficult.’’ The EEOC’s Compensation Manual continues, ‘‘[t]he actual content of the jobs must be similar enough that 

one would expect those who hold the jobs to be paid at the same rate or level.’’ Does 

the EEOC interpret OFCCP Directive 307 to be altogether consistent with these 

EEOC instructions? 

37. As you know, in August, 2012, the National Research Council of the National 

Academies of Sciences (NAS) released a report entitled ‘‘Collecting Compensation 

Data from Employers.’’ This report was commissioned by the EEOC. The report contained two primary recommendations: 

Recommendation 1: In conjunction with the Office of Federal Contract Compliance 

Programs of the U.S. Department of Labor and the Civil Rights Division of the U.S. 

Department of Justice, the U.S. Equal Employment Opportunity Commission should 

prepare a comprehensive plan for use of earnings data before initiating any data 

collection. 

Recommendation 2: After the U.S. Equal Employment Opportunity Commission, 

the Office of Federal Contract Compliance Programs, and the U.S. Department of 

Justice complete the comprehensive plan for use of earnings data, the agencies 

should initiate a pilot study to test the collection instrument and the plan for the 

use of the data. The pilot study should be conducted by an independent contractor 

charged with measuring the resulting data quality, fitness for use in the comprehensive plan, cost, and respondent burden. 

a. What is the status of the EEOC’s implementation of these recommendations? 

Has the EEOC and OFCCP developed a comprehensive plan? If so, please provide 

a copy of the comprehensive plan. If not, why not, and when will it be completed? 

b. Has an independent contractor been selected for a pilot project? 

c. How will the EEOC ensure coordination with OFCCP with regard to these recommendations? 

d. Has the EEOC had any discussions with OFCCP about the comments OFCCP 

received in response to the Advance Notice of Proposed Rulemaking on a Compensation Data Collection Tool, 76 Fed. Reg. 49398 (Aug. 10, 2011)? 

e. Will the EEOC commit to using its authority under EO 12067 to require 

OFCCP to adhere to the NAS recommendations before issuing any proposed regulations on collecting compensation data? 

QUESTIONS FROM REPRESENTATIVE HUDSON (NC-08)

1. There is a case in which an employee filed a gender discrimination case against 

her employer. When the employer tried to meet with the EEOC representative and 

the employee for consultation, the employer instead found the EEOC representative 

acting as a prosecuting attorney for the employee instead of a negotiator between 

the parties. The employer was not notified prior to the meeting of the terms of these 

discussions, and whether or not the EEOC representative would be used in a mediating role or prosecuting role, leaving the impression these meetings were informal 

negotiations. 

a. To what extent does the EEOC give a notice of terms to all parties involved 

prior to in person consultations? 

b. In other cases is it protocol for an EEOC representative to play negotiator/ mediator and prosecutor during an investigation? 

c. If employers are not notified of the status of the consultation meeting, what are 

their administrative rights to have counsel present and/or delay the meeting until 

counsel is present? 

2. As you know, the EEOC’s Chicago District Office is currently investigating 

PricewaterhouseCoopers regarding their partnership agreement and mandatory retirement age. The six-factor partnership test adopted by the Supreme Court in 

Clackamus would presume the partners at PricewaterhouseCoopers are not subject 

to the ADEA. 
56 

a. Should the EEOC decide to pursue litigation of this case, do you believe it 

would involve a major expenditure of resources or have a high likelihood for public 

controversy? 

b. Given the Strategic Enforcement Plan’s objective of retaining the decision to 

commence litigation over cases that (1) will involve a major expenditure of resources; (2) present issues in a developing area of law; or (3) cases with a high likelihood for public controversy, would you expect the commission, and not the general 

counsel, to vote on whether to commence litigation against PricewaterhouseCoopers? 

EEOC Response to Questions Submitted for the Record 

1. What new enforcement guidance is the EEOC considering issuing and can you 

provide a timetable for issuing any new guidance? Specifically, is the EEOC considering new guidance on reasonable accommodation under the Americans with Disabilities Act? Finally, can you give us your assurance that any future guidance will be 

provided to the public for comment prior to making it final? If not, why? 

RESPONSE: Members of the Commission have spoken publicly about their interest 

in issuing revised guidance on reasonable accommodation under the ADA. In particular, the existing guidance does not reflect changes to the definition of ‘‘disability’’ 

resulting from enactment of the ADA Amendments Act of 2008 (ADAAA). Additionally, a number of legal issues concerning reasonable accommodation have arisen in 

the more than 10 years since our existing guidance was last revised, and others are 

likely to arise as the question of whether an individual has a disability within the 

meaning of the ADA becomes less important as a result of the ADAAA. For example, in June 2011, the Commission held a meeting on the extent of an employer’s 

obligation to provide leave as a reasonable accommodation. http://www.eeoc.gov/ 

eeoc/meetings/6-22-11/index.cfm. 

Other areas of interest for the Commission, as evidenced by public meetings we 

have held in the past two years include pregnancy discrimination, http:// 

www.eeoc.gov/eeoc/meetings/2-15-12/index.cfm, and the application of the ADA to 

employer-sponsored wellness programs. http://www.eeoc.gov/eeoc/meetings/5-8-13/ 

index.cfm. Some Commissioners and a number of stakeholders present at those 

meetings expressed the hope that the EEOC would issue guidance on these subjects. 

However, I cannot say whether the Commission will decide to issue guidance on 

these or other topics. The specific guidance that the Commission decides to issue, 

its content, and the time frame within which it is issued are all the product of a 

deliberative process, and a majority of Commissioners must agree on the outcome. 

We value the views and varying perspectives of our stakeholders, and routinely 

seek input from the public in developing guidance. 

2. On May 8, 2013, the EEOC held a hearing regarding employer wellness programs under the varying requirements of federal non-discrimination laws, the Health 

Insurance Portability and Accountability Act, and the Patient Protection and Affordable Care Act. The health care law codifies and expands the existing rules for workplace wellness programs, and proposes to increase, from 20 to 30 percent, the amount 

by which health plans can vary their premiums for participation in wellness plans. 

The health care law also endorses the value of workplace wellness plans by requiring 

health plans offered through health care exchanges under the law to include wellness 

and chronic disease management as a core benefit. In light of the health care law’s 

treatment of wellness programs and the existing federal regulatory scheme governing 

their structure, does the EEOC plan to issue guidance on workplace wellness programs? If so, will the EEOC work with the Departments of Labor and Health and 

Human Services in promulgating this guidance? Will the EEOC allow for a notice 

and comment period on any wellness guidance they consider? 

RESPONSE: As noted in response to Question 1, Commissioners and stakeholders 

present at the May 8, 2013 Commission meeting on the ADA and wellness programs 

certainly expressed interest in the Commission issuing guidance on this subject. 

Again, whether guidance is issued and what the content of that guidance will be 

will need to emerge from the Commission’s deliberative process. 

In developing any guidance, the Commission will coordinate closely with the Departments of Labor, Health and Human Services, and the Treasury (Internal Revenue Service), all of whom have issued regulations under the Affordable Care Act 

concerning wellness programs. The Commission has had considerable experience 

working with these agencies to understand laws that are outside our area expertise, 

most notably as part of the process of issuing proposed and final regulations to implement Title II of the Genetic Information Nondiscrimination Act. We will also consider input from the public, and already have access to both the written testimony 
57 

of participants at the Commission meeting as well as comments submitted during 

the 15 days following the meeting when the meeting record remained open for public comment. 

3. The EEOC, along with other federal agencies, has specifically focused on gender 

pay discrimination. The EEOC is part of the National Equal Pay Task Force and 

provided compensation discrimination training to enforcement personnel across agencies. The Office of Federal Contract Compliance Programs (OFCCP) recently rescinded its enforcement guidance on pay discrimination and replaced it with broader 

investigation procedures, without providing much guidance to help employers determine proactively whether or not they are in compliance. What are the EEOC’s current 

plans with regard to gender pay discrimination guidance and enforcement? How has 

the EEOC coordinated with other agencies, including OFCCP to ensure employers do 

not face conflicting or overly-burdensome regulation in this area? 

RESPONSE: The Commission’s current Strategic Enforcement Plan (SEP) emphasizes the importance of ‘‘a concentrated and coordinated approach’’ to enforcement 

that focuses on six priority issues, one of which is gender pay discrimination. EEOC 

plans to continue its enforcement and outreach to promote compliance. This emphasis on coordination is particularly well-established with respect to gender pay discrimination, because the EEOC and the Department of Labor have two longstanding 

Memoranda of Understanding about coordinating on training and investigations. 

Indeed, in 2011 to 2012, the EEOC included OFCCP staff in its nationwide training about gender pay discrimination, so that staff from both agencies learned the 

same principles. This training reached approximately 2000 people. The EEOC’s 

Memoranda of Understanding can be found at http://www.eeoc.gov/laws/mous/ 

index.cfm. 

4. Several studies show a relationship between a poor credit history and risk of 

loss to a business, a customer, or a fellow employee. How does the EEOC plan to use 

empirical, scientific-based evidence in the development of new guidance, specifically 

credit history guidance? 

RESPONSE: The specific guidance that the Commission decides to issue, its content, and the time frame within which it is issued are all the product of a deliberative process, and a majority of Commissioners must agree on the outcome. Should 

the Commission decide to issue any guidance regarding employers’ consideration of 

the credit histories of applicants and/or employees, it will consider the public input 

received from business and employee stakeholders as part of the October 2010 Commission meeting on credit histories, and will also consider relevant research in developing such guidance, as it does whenever it issues any policy or guidance. 

5. Employers conduct credit checks to protect them, their customers, and other employees from financial harm. For example, the Association of Certified Fraud Examiners (ACFE) said in a recent report that the top two red flag warnings exhibited 

by perpetrators associated with fraud were instances in which the fraudster was living beyond his or her financial means or experiencing financial difficulties. Further, 

employee theft accounts for nearly $1 trillion annually. Employers are troubled by 

the prospect of limits on the use of credit histories for employment. Will the EEOC 

issue credit guidance? If the EEOC intends to issue credit guidance what is the timing? Will that guidance go through the APA, OMB, or Comptroller General review 

process? If not, why not? 

RESPONSE: The specific guidance that the Commission decides to issue, its content, and the time frame within which it is issued are all the product of a deliberative process, and a majority of Commissioners must agree on the outcome. Since it 

has not been determined what form any such guidance would take were it to be 

issued, which review process might apply has not been determined. However, if and 

when the Administrative Procedure Act applies, the Commission will, as it has in 

the past, satisfy the requirements of the APA when issuing regulations. 

6. Your guidance on criminal background screening is 55 pages long and contains 

167 footnotes. It requires complex individualized assessments involving a multitude 

of amorphous factors. Even sophisticated attorneys may not know how to advise their 

clients. Please provide the questions you have received regarding this guidance and 

the responses to those questions provided by the EEOC. 

RESPONSE: The EEOC recognizes that many of our stakeholders, including small 

businesses, job applicants, and employees, need information about this Guidance 

and our laws in general, but do not want (and do not have the time) to read the 

longer, more legally complex document itself. 

Consequently, whenever the EEOC issues a substantive sub-regulatory guidance 

like the April 2012 Arrest and Conviction Guidance, it publishes one or more short, 

reader-friendly Q&A documents that serve two purposes: (1) to explain the most im-
58 

portant points in the longer guidance in a straightforward manner; and (2) to respond directly to some of the most frequently asked questions about the longer document. While the EEOC does not archive all of the questions and comments received 

around the country, the most frequently-asked questions come to our attention and 

we strive to be responsive. 

For the Arrest and Conviction Guidance, the EEOC issued two plain-language 

documents. First, the EEOC issued basic ‘‘Questions and Answers’’ shortly after the 

publication of the Guidance in April 2012. See http://www.eeoc.gov/laws/guidance/ 

qa—arrest—conviction.cfm. There, the EEOC answered seven basic questions that 

reflect some of the comments and questions the Commission received after its July 

2011 public meeting about arrest and conviction records as a hiring barrier. See 

http://www.eeoc.gov/eeoc/meetings/7-26-11/index.cfm. This Question and Answer 

document begins by explaining how employment actions based on criminal background checks could become a Title VII issue, a question frequently raised by members of the public. 

Later, to respond to questions about the Guidance itself, the EEOC published a 

‘‘What You Should Know’’ document. Here, the EEOC explained in two sentences 

how an employer could show that its criminal background check was consistent with 

Title VII under the Guidance. The EEOC also emphasized that the Guidance does 

not prevent employers from using criminal background checks to screen applicants 

and employees in a meaningful way, a point about which public discussion continued. See http://www.eeoc.gov/eeoc/newsroom/wysk/arrest—conviction— 

records.cfm. 

7. The EEOC and the Federal Trade Commission are working together on FAQs 

to the EEOC’s criminal background check guidance. Will the FAQs address employers’ responsibility under the EEOC guidance and the Fair Credit Reporting Act? 

What is the status of the FAQs? 

RESPONSE: The EEOC and the FTC are working on two brief technical assistance 

publications with respect to background checks, one for employers and another for 

individuals. Written in plain language, the publications are designed to explain to 

employers what their responsibilities are under the equal employment opportunity 

laws and the Fair Credit Reporting Act with respect to background checks, and to 

explain to individuals what their rights are. The publications would not focus only 

on criminal background checks or set forth any new policy. The agencies are still 

designing the publications but hope to finalize them in the spring of 2014. 

8. Central to the EEOC’s criminal background check guidance is the requirement 

that employers conduct an ‘‘individualized assessment’’ coupled with a targeted 

screen. While not mandating such, the guidance states that ‘‘although Title VII does 

not require individualized assessment in all circumstances, the use of a screen that 

does not include individualized assessment is more likely to violate Title VII.’’ It also 

states a targeted screen coupled with an opportunity for an individualized assessment is a circumstance in which the EEOC believes employers will consistently meet 

the ‘‘job related and consistent with business necessity’’ defense. How does the EEOC 

intend to enforce individualized assessments? By strongly urging employers to conduct ‘‘individualized assessments,’’ the guidance imposes a new burden on responsible employers seeking to comply with it and avoid an EEOC investigation. Will enforcement in this area be driven by whether an employer has developed a screen and 

conducts individualized assessment, and, alternatively, will lack of any screen or individualized assessment be grounds for an EEOC investigation? 

RESPONSE: Enforcement in this area, like EEOC enforcement in other areas, generally will be driven by charges we receive. When the EEOC receives a charge of 

employment discrimination, we investigate the claim to gather relevant evidence. 

We first assess the potential merits of the charge, which includes a careful consideration of the underlying facts. As part of the investigative process, we provide the 

employer with the opportunity to respond to the allegations. In evaluating charges 

alleging that someone has been excluded from a job based on an arrest or conviction 

record, EEOC investigators will apply the legal standards in Title VII as explained 

more fully in the EEOC’s guidance, including the principles favoring targeted 

screens and an opportunity for an individualized assessment. The outcome of a particular Title VII investigation will turn on the application of these principles to the 

unique facts of each case. 

Simply asserting that a screen is ‘‘targeted’’ or that the employer has conducted 

an individualized assessment will not in itself be determinative. The EEOC investigators will focus on evidence of how the screen or the individualized assessment 

has been implemented in practice. 

9. Is there a time or point in the hiring process when the EEOC believes it is appropriate to conduct a criminal check? Is it ever appropriate to ask about criminal 
59 

history on an application? Is it ever appropriate to consider criminal history prior 

to an interview? 

RESPONSE: EEOC’s guidance explains how an employer may appropriately and legally consider the criminal history of an applicant or employee. The guidance is intended to assist job seekers, employees, employers, and many other agency stakeholders. As a ‘‘best practice,’’ the Commission recommends in the Guidance that employers avoid asking about criminal history on the job application itself. The policy 

rationale is that an employer is more likely to objectively assess the relevance of 

a conviction if it becomes known after the employer is already knowledgeable about 

the individual’s qualifications and experience. 

The Guidance also recognizes that ‘‘[the employer’s c]ompliance with federal laws 

and/or regulations is a defense to a charge of discrimination.’’ The Guidance notes 

that ‘‘employers are subject to federal statutory and/or regulatory requirements that 

prohibit individuals with certain criminal records from holding particular positions 

or engaging in certain occupations.’’ Employers may want to inform applicants early 

in the hiring process if one of these federal exclusions applies. 

10. Regarding the EEOC’s criminal background check guidance, what if an employer finds out an individual lied on his or her employment application regarding 

their criminal history? If that individual is fired for their lack of honesty about a 

prior conviction, could the employer still run afoul of the guidance? 

RESPONSE: Generally applicable and consistently implemented policies against falsifying or misrepresenting information in an application are enforceable. An employer whose practice is to terminate anyone whom it finds out has lied on an employment application may terminate someone who lies in response to a question 

about his or her criminal background. However, if the employee’s prior arrest or 

conviction, not the fact that he or she lied about it on an application, is the reason 

that the employer terminated the employee, EEOC will apply the principles in the 

guidance to evaluate any charge of discrimination that is filed. 

11. The general counsel is required to bring a case before the EEOC for a vote to 

proceed to litigation in four instances, including those in which the case would likely 

create public controversy. What types of cases would fall in this ‘‘public controversy’’ 

category? Given the high level of interest on the criminal history background checks 

guidance, and its controversy thus far, do you expect the general counsel to bring 

such cases before the commission for a vote to proceed prior to litigation? 

RESPONSE: The Commission does not maintain a list of types of cases that may 

generate public controversy because what is considered controversial necessarily 

changes over time. In deciding whether litigation of a particular case is likely to 

generate public controversy, the General Counsel considers various factors, including whether the litigation of similar cases in the past generated public controversy 

or adverse publicity, whether any issue in the litigation has been the subject of discussion in the Congress, and whether any issue in the case has been the subject 

of significant debate in the media. The Commission recognizes that, as things currently stand, cases challenging an employer’s use of criminal history as an exclusionary criterion are likely to generate public controversy. The General Counsel accordingly has presented all such cases to the full Commission for a vote, and will 

continue to do so for the foreseeable future. 

12. Should the EEOC decide to pursue litigation that considers partners as ‘‘employees,’’ would you expect the commissioners to vote on whether to commence any 

such litigation? For example, do you believe the litigation would have a high likelihood for public controversy? Would it involve a major expenditure of resources? 

Would it present issues in a developing area of law? 

RESPONSE: A case in which the applicable legal standards are settled law, such 

as whether partners were covered as employees, would generally not be submitted 

to the Commission. The Supreme Court set out the factors to be considered in making such a determination ten years ago, and the Commission has litigated the issue 

in the context of law firms without generating public controversy. The decision 

whether any such case involves a developing area of the law, a major expenditure 

of resources, or is likely to generate public controversy is decided on a case-by-case 

basis. 

13. In 2012, 122 lawsuits were filed in the name of the EEOC, but only three of 

those were submitted for the commission’s consideration. Do you feel this is an appropriate proportion? Were fewer than 3 percent of the lawsuits brought in the commission’s name last year appropriate for submission to the commission? 

RESPONSE: Prior to the Commission’s adoption of a Strategic Enforcement Plan in 

December 2012, there was no number or proportion of cases which were to be submitted to the full Commission. One of the primary purposes of the Commission’s del-
60 

egation of litigation authority to the General Counsel in the 1995 National Enforcement Plan (NEP) was to drastically reduce the number of litigation recommendations submitted to the Commission to free up the Commissioners to focus on larger 

policy issues. Delegation of authority to the General Counsel to approve litigation 

is especially appropriate for EEOC since EEOC has a presidentially appointed and 

Senate confirmed General Counsel whom Congress made responsible for the conduct 

of litigation on behalf of the Commission. The Commission carefully reviewed the 

delegation under the NEP and reaffirmed delegation under the Strategic Enforcement Plan in December 2012 with the addition that one litigation recommendation 

from each District Office be submitted to the Commission each fiscal year, including 

litigation recommendations which otherwise meet the criteria for Commission approval. 

14. Courts have recently found several cases brought by the EEOC to be meritless. 

For example, the EEOC was ordered to pay the defendants’ costs and attorneys’ fees 

in the Peoplemark and CRST Van Expedited cases. Did the commissioners approve 

the commencement of litigation in those cases and if not, why not? Given that the 

EEOC as a whole is ultimately accountable for outcomes in litigation, do you agree 

the commissioners should play a greater role in approving cases that proceed to litigation? 

RESPONSE: The Commission approved litigation in the Peoplemark case in September 2008. CRST was approved for litigation by the General Counsel in September 2007. While both of these cases were filed during the prior administration, 

it is clear that CRST was not a Commission-level case when the case was authorized for litigation. 

The EEOC appealed the district court’s award of attorney’s fees in Peoplemark. 

The case has been briefed and argued and is currently awaiting decision by the 

United States Court of Appeals for the Sixth Circuit. The EEOC argued on appeal 

that Peoplemark is not entitled to attorney’s fees because it failed to show that the 

EEOC’s suit, at any time during the litigation, was frivolous, unreasonable, or without foundation—the standard the United States Supreme Court has established for 

awarding fees to a defendant in a Title VII action. 

The EEOC appealed CRST to the 8th Circuit and although a divided panel upheld 

much of the lower court decision, it revived two individual claims and thus set aside 

the fees as the defendant was not a prevailing party. The CRST ruling held that 

the Agency must, at least in non-pattern-or-practice class cases, identify and conciliate for each claimant in the administrative process before filing suit on their behalf. 

This ruling departed from prior settled law and practice and was thus unforeseen 

at the time the case was filed. The EEOC later dismissed one claim and settled the 

one remaining claimant case this year. On remand, CRST filed a new petition for 

fees, which the district court granted, awarding $4.7 million in attorney’s fees, expenses, and costs. EEOC anticipates that it will appeal the fees order. 

Peoplemark, CRST and the few other losses we have suffered over the past few 

years are but a small part of the EEOC’s highly successful litigation program. For 

example in 2012, we resolved 253 merits lawsuits for a total of $44,205,586 in monetary relief. Our success rate in litigation has been more than 90 percent for the past 

5 years at least. This year we conducted 10 trials and won 8 of them, all of the victories involving cases filed pursuant to the Commission’s delegated authority. 

As noted above, the Commission has carefully reviewed the delegation of litigation 

authority to the General Counsel and reaffirmed that delegation under the Strategic 

Enforcement Plan in December 2012 with the addition that one litigation recommendation from each District Office be submitted to the Commission each fiscal 

year. 

15. The commission has delegated authority to district directors to negotiate settlements and conciliation agreements, and to make reasonable cause determinations in 

a wide range of circumstances. How does the commission exercise oversight of that 

delegation and what limits are imposed on the discretion of the district directors? 

RESPONSE: The EEOC has received nearly 100,000 charges each year for the last 

three years. Agency staff, including District Directors, is responsible for investigating and resolving charges. Delegation to the District Directors is critical to an 

efficient charge resolution system, as without it, the inventory of charges would increase dramatically. 

There is no express limitation on the exercise of delegated authority by District 

Directors, but they are guided in their exercise of delegated authority by the agency’s Strategic Plan and Strategic Enforcement Plan (both were Commission-approved). The Chair is responsible for overall management of agency operations and 

personnel; various intermediate personnel directly supervise agency staff. The Director of the Office of Field Programs (OFP) is responsible for day-to-day supervision 
61 

and oversight of the work of the District Directors. Among his regular interactions 

with the Chair and members of the Commission, the Director of OFP briefs the 

Commission quarterly on the administrative enforcement program of the agency 

(which includes investigation and resolution of private sector charges through mediation or conciliation), as provided in the Strategic Enforcement Plan. As members 

of the Senior Executive Service, District Directors’ performance is evaluated at least 

annually by the Director of the Office of Field Programs, and reviewed by a group 

of Senior Executives from within and outside the EEOC who are appointed by the 

Chair in accordance with Office of Personnel Management guidelines. 

In addition, as part of the agency’s Strategic Plan, a Quality Control Plan (QCP) 

is being developed that establishes specific criteria for evaluating the quality of 

EEOC investigations and conciliations and provides for an expanded review system 

to conduct assessments of investigations and conciliations in each district. 

16. President Obama has commented on the importance of transparency in government. The EEOC’s commissioner charges generally result in broad-based systemic investigations of an employer’s business practices and can be based on a commissioner 

reading a newspaper article about a company or a company’s hiring statistics. Is the 

EEOC required to explain or articulate any basis for the charge or what led to the 

charge before the employer is subjected to a broad-based systemic investigation by the 

EEOC? Do you believe the approach is consistent with the importance of transparency in government and due process in our legal system? 

RESPONSE: The EEOC uses Commissioner charges under Title VII of the Civil 

Rights Act and the Americans with Disabilities Act when there is reason to believe 

discrimination has occurred. Congress authorized the use of Commissioner charges 

when it enacted Title VII in 1964 and they have been used for decades for investigations of varying scope, from individual to class-based. 

In 1972, Congress broadened the Commissioner charge authority, removing a requirement that there be ‘‘reasonable cause’’ to investigate. In 1984, the Supreme 

Court upheld the authority of the Commission to issue and investigate Commissioner charges, under the same standards applicable to charges filed by members 

of the public, to determine whether the law has been violated. Equal Employment 

Opportunity Commission v. Shell Oil Company, 466 U.S. 54 (1984). The Supreme 

Court stated that this authority was essential to achieving the purposes of Title VII. 

Id. at 77. 

Investigations initiated through these mechanisms are consistent with requirements of transparency in government and due process. As required by statute, the 

EEOC advises the employer of the alleged discrimination in the Commissioner 

charge, and explains its findings at various stages in the process, including in the 

predetermination interview, Letter of Determination, and conciliation. The employer 

is given opportunities to resolve the findings voluntarily through conciliation, and 

the employer is not bound by the EEOC’s findings in the administrative process but 

has the right to a trial de novo in court. 

While the employer is apprised of the alleged discrimination, the statute limits 

the bounds of transparency. Title VII explicitly prohibits the agency and its staff 

from making ‘‘public in any manner whatever information’’ the Commission may obtain in an investigation, including the existence of an investigation. 42 U.S.C. § 

2000e-8(e). 

17. Why has the EEOC focused on conducting directed investigations, as opposed 

to investigations initiated in response to a complaint? How does the EEOC decide 

whether to spend resources on directed investigations in light of the substantial backlog of complaints? 

RESPONSE: The EEOC devotes the vast majority of its resources to investigations 

initiated in response to charges filed by members of the public. In contrast, directed 

investigations comprise a small portion of the Commission’s resources. For example, 

in FY 2012, almost 100,000 charges were filed with EEOC, and over 111,000 were 

resolved. In contrast, the agency initiated only 24 directed investigations in FY 

2012. 

The authority for directed investigations is found in the Age Discrimination in 

Employment Act (ADEA), 29 U.S.C. § 626(a) and (b), and the Equal Pay Act (EPA), 

29 U.S.C. § 206(d), both of which give the EEOC the authority to investigate under 

sections 9, 11 and 17 of the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. 

§§ 209, 211 and 217. The term ‘‘directed investigation’’ is not a statutory term but 

is used by the EEOC to refer to investigations initiated by the agency under these 

provisions, which authorize the EEOC to investigate without an existing charge of 

discrimination filed by a member of the public. The ADEA language grants the 

EEOC the power to make investigations when ‘‘necessary or appropriate for the administration’’ of the ADEA, 29 U.S.C. § 626(a). Section 11 of the FLSA gives the 
62 

EEOC the authority to ‘‘investigate such facts, conditions, practices, or matters as 

[it] may deem necessary or appropriate to determine whether any person has violated any provision of this chapter or which may aid in the enforcement of the provisions of this chapter * * *’’ 29 U.S.C. § 211(a). 

The EEOC exercises its statutory authority to initiate directed investigations and 

Commissioner charges to maximize the effectiveness of its law enforcement efforts 

when the agency has reason to believe that discrimination has occurred, even 

though an individual member of the public may not have come forward to file a 

charge. Congress authorized Commissioner charges and directed investigations in 

order to provide the EEOC with a mechanism to address possible discriminatory 

acts that otherwise might go unaddressed. 

The EEOC uses these tools to investigate situations where individuals may for 

various reasons be unwilling or unable to file charges, for example when the employee fears retaliation should he or she file a charge. Other cases may be initiated 

on behalf of victims who are in underserved communities, have been totally excluded from the workplace, or are unaware of discriminatory hiring or job referral 

barriers, such as racial, gender or age preferences covertly used by employment 

agencies at the behest of an employer. Commissioner charges and directed investigations are methods of seeking relief for these victims of discrimination. 

In 2006, the Commission unanimously voted to reaffirm the importance of Commissioner charges and directed investigations as a central component of the EEOC’s 

systemic program. In adopting the recommendations of its Systemic Task Force, led 

by Vice Chair Leslie Silverman, the Commission approved a series of measures to 

strengthen the agency’s efforts to address pattern or practice, policy and/or class 

cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location. The Task Force found that Commissioner 

charges and directed investigations ‘‘are important tools in the effort to combat systemic discrimination, as many victims of discrimination do not come to EEOC because they fear retaliation, do not know about their rights, or are unaware of the 

discrimination (particularly where the issue is hiring).’’ 

18. In many cases, the EEOC engages in a ‘‘conciliation’’ or settlement process, regularly demanding the statutory maximum in terms of a monetary settlement offer 

and insisting on sweeping changes to the employer’s human resource operations. Frequently, the settlement demands have no relationship to the historical jury verdicts 

in the region, and generally do not take the employer’s defenses into consideration. 

What steps are you taking to ensure the EEOC is engaging in effective, good-faith 

conciliation prior to litigation? 

RESPONSE: Conciliation is the statutorily required process by which the EEOC attempts to resolve discrimination through ‘‘informal means of conference, conciliation, 

and persuasion.’’ 42 U.S.C. § 2000e-5. The purpose of conciliation is to remedy the 

violation, as required by statute. If a particular policy or practice was found to be 

discriminatory, the EEOC would seek to have the employer change its practices to 

end the discrimination and to prevent further discrimination from occurring. Conciliation occurs only after the investigation of a charge has been completed, and the 

EEOC has reached a determination that the evidence establishes that there is ‘‘reasonable cause’’ to believe that discrimination occurred. 

The percentage of successful conciliations has been increasing during the Chair’s 

tenure. Successful conciliation rates: FY 2010–27 percent; FY 2011–31 percent; FY 

2012—38 percent; FY 2013 (midyear)—40 percent. Specific data is reflected below: 

Fiscal year Cause 

resolutions Conciliations Percentage 

FY 2010 ....................................................................................................... 4,981 1,348 27.1%

FY 2011 ....................................................................................................... 4,325 1,351 31.2%

FY 2012 ....................................................................................................... 4,207 1,591 37.8%

One of the steps the Commission is taking to insure effective, good-faith 

conciliations is the development of a Quality Control Plan that establishes criteria 

for evaluating the quality of investigations and conciliations. The proposed Quality 

Control Plan was developed by a staff work group with extensive public and internal 

input. It is currently under consideration by the Commission. 

Further, the Commission disagrees with the notion that it fails to consider employer defenses or insists upon excessive monetary demands in conciliation. The 

Commission is responsible for furthering the public interest in remedying discriminatory conduct and that is our primary consideration in framing our relief demands. 
63 

EEOC has consistently taken steps to ensure effective and fair conciliations. The 

Office of the General Counsel and the Office of Field Programs routinely train employees on conciliations and issued field guidance on issues raised by recent case 

law concerning the Agency’s conciliation obligations. As part of the litigation review, 

the Office of the General Counsel and the Commission, as appropriate, review the 

conciliation history of each case prior to authorizing litigation. If conciliation is insufficient legally or otherwise, the case is returned to the local office to conduct further conciliations or is disapproved for litigation. 

19. For years, the EEOC has litigated challenges to proper conciliation with varying degrees of success. Currently, the EEOC is taking two completely new litigation 

positions: (1) courts have no authority to review the EEOC’s conciliation efforts; and 

(2) no information about conciliation can be put before a court unless the EEOC consents. These positions make the EEOC accountable to no party or court for its conciliation efforts. After almost 40 years of litigating the issue of conciliation, why is the 

EEOC now attempting to take that issue off the table? Please provide any and all 

documentation regarding this EEOC position. 

RESPONSE: With regard to judicial review of the Commission’s efforts to obtain a 

conciliation agreement, the Commission recently has addressed the issue in several 

judicial districts where there are no controlling appellate decisions on whether Title 

VII authorizes judicial review of EEOC conciliations. The Commission has relied 

upon the plain language of Title VII, which allows the Commission to declare conciliation unsuccessful if it has been ‘‘unable to secure from the respondent a conciliation agreement acceptable to the Commission.’’ The Commission has argued in its 

cases that this language evidences an intent to commit conciliation, which the statute describes as an ‘‘informal’’ method of achieving an agreement, to the discretion 

of the Commission and to make it non-reviewable by a court. 42 USC § 2000e-5(f)(1). 

Similarly, the plain language of 42 USC § 2000e-5(b) states that nothing said or 

done in conciliation may be made public or used as evidence in a subsequent proceeding without the consent of the persons concerned. The Commission has argued 

that this statutory provision reflects congressional intent to keep the negotiations 

of the conciliation process, like those in any settlement process, generally confidential and unrestrained by the concern of subsequent judicial scrutiny. 

Significantly, some appellate courts have recognized that other parts of the 

EEOC’s administrative process—namely its investigation and reasonable cause determination—are judicially unreviewable. See, e.g. EEOC v. Caterpillar, 409 F.3d 

831 (7th Cir. 2005). 

The EEOC recognizes that it has a duty to attempt to conciliate before bringing 

a civil action and, moreover, it has an enormous incentive to conciliate effectively. 

Over the last five years, the EEOC has attempted conciliation in 4,000 to 6,000 

cases a year. As stated in response to Question 18, many matters are successfully 

conciliated by the Commission each year, but when conciliation fails, the EEOC is 

able to pursue litigation in only a small fraction of those cases. 

20. Why do certain EEOC regional directors refuse to share information about 

what the EEOC learned during its investigation during the conciliation process even 

though they ultimately must do so in litigation if conciliation fails? Wouldn’t sharing 

relevant information with the target of the investigation help resolve more cases and 

accomplish the goal of compliance with Title VII? 

RESPONSE: There are multiple opportunities to provide and receive information 

concerning a pending investigation. An investigation typically begins when an individual files a charge of employment discrimination alleging that the employer discriminated against him/her because of a basis prohibited by the statutes EEOC enforces. In EEOC’s 53 field offices, our staff sends a copy of the charge to the employer and then investigates the allegations contained in the charge, collecting documentary evidence and in some cases interviewing witnesses. The employer has an 

opportunity to submit a position statement in response to a charge and information 

may be shared with the employer at various points during the investigation if doing 

so facilitates the investigation. As the investigation ends, the EEOC investigator 

holds a Pre-Determination Interview (PDI) with the employer, in most cases, by 

phone. During the PDI, the investigator reviews with the employer or the employer’s representative the evidence collected and also asks the employer whether it 

wishes to submit any additional evidence which might be relevant to EEOC’s analysis of the evidence. If EEOC concludes based on the evidence that there is ‘‘reasonable cause to believe discrimination has occurred,’’ the agency issues a Letter of Determination, which details the legal and factual bases for the ‘‘reasonable cause’’ 

finding. 

During the conciliation process, which begins only after a Letter of Determination 

has been issued, the charging party, the employer and EEOC discuss how the mat-
64 

ter might be resolved. Conciliation focuses on two issues: (1) how the charging party 

can be made ‘‘whole,’’ i.e., what relief is necessary to place the charging party as 

near as possible in the situation he or she would have been if the discrimination 

had not occurred, and (2) what steps the employer should take to end the discrimination and prevent further discrimination. During conciliation, the central focus of 

the discussion is the appropriate relief to remedy the discrimination, rather than 

liability issues. EEOC staff share information with the employer during the Pre-Determination Interview and during conciliation. 

21. Private lawyers who sue employers engage in a cost-benefit analysis to determine whether the cost and risk of going forward to trial is warranted by the potential 

financial outcome. As the steward of taxpayer dollars, do you believe the EEOC 

should do this too? What are the EEOC’s procedures for resolving cases in a timely 

manner to reduce costs to employers, and ultimately the taxpayer? 

RESPONSE: Unlike private litigation, the potential financial outcome is not the 

only or even the primary benefit the Commission considers. Advancing the public 

interest in stopping and remedying discrimination is the most important consideration for EEOC as a law enforcement agency. In many cases, broad-based injunctive 

relief is an equally or more important benefit than the financial outcome. The pace 

of EEOC litigation, like all litigation in the federal courts, depends upon numerous 

factors, including factors beyond the litigants’ control. However, the Commission 

generally makes early attempts to settle cases and continues to identify settlement 

opportunities throughout the litigation. 

22. The EEOC’s Strategic Enforcement Plan states the EEOC has superior access 

to data, documents, and potential evidence of discrimination in recruitment and hiring, and therefore is better situated to eliminate barriers in recruitment and hiring 

than are individuals or private attorneys, who have difficulties obtaining such information. In determining whether to bring other systemic litigation, does the EEOC 

consider whether the individuals affected have the means and ability to seek redress 

through private civil litigation? In your view, should it do so? 

RESPONSE: Yes, in all litigation decisions the Commission considers whether the 

affected individuals have the resources to seek redress. As a federal law enforcement agency with extensive responsibilities and limited resources, however, the 

Commission also considers broader law enforcement interests. In systemic cases in 

particular, the Commission has a strong interest in securing broad-based injunctive 

relief to prevent future discrimination, and must consider whether private enforcement efforts would result in such relief or whether the Commission’s participation 

in the litigation is necessary to ensure that adequate remedies, including targeted 

equitable relief, are obtained. 

23. In litigation, the EEOC claims an attorney client privilege with charging parties and claimants. But in practice the EEOC does not consider their wishes when 

deciding whether to settle a case or go to trial. Why should the EEOC be able to have 

it both ways unlike attorneys in other litigation? 

RESPONSE: As a law enforcement agency supported by tax dollars, the EEOC, unlike private attorneys, not only has an obligation to seek relief for aggrieved individuals, but must also ensure that the public interest is served when it conducts litigation. EEOC does consider the interests of charging parties in its litigation. Although 

EEOC determines the conditions under which it will resolve litigation it brings, the 

monetary relief it will accept in a settlement often depends on what the claimant(s) 

believes is satisfactory. But even where there is agreement among EEOC, claimants, 

and the defendant on the amount of monetary relief to be paid to the claimants, 

EEOC will not settle a case unless adequate injunctive and affirmative relief are 

also provided. 

EEOC files suits in its own name, and unless a charging party or other claimant 

intervenes, it is the only plaintiff. Like any other party, EEOC has sole discretion 

regarding the terms on which to resolve the claims it brings. Although EEOC usually seeks relief for one or more individuals in its suits, its primary purpose in 

bringing litigation is to further the public interest in eliminating employment discrimination. Charging parties are informed prior to the initiation of an EEOC suit 

that although EEOC will be seeking particular relief for them, its first obligation 

is to the public interest, and thus at some point in the litigation EEOC may act 

in a manner that the charging party believes is contrary to his or her interests. In 

Title VII, ADA, and GINA suits, charging parties also are informed of their right 

to intervene in EEOC’s suit. 

EEOC does not claim an attorney-client relationship with claimants, and therefore 

there is no inconsistency in its refusal to settle a case even though monetary relief 

has been offered that is satisfactory to the claimants—a situation that rarely occurs. 
65 

EEOC believes that in providing the agency with litigation authority in 1972 for the 

purpose of both ‘‘implement[ing] the public interest [and] bring[ing] about more effective enforcement of private rights,’’ General Telephone Co. of the Northwest, Inc. 

v. EEOC, 446 U.S. 318, 326 (1908), Congress could not have intended that claimants 

in EEOC suits would be denied the right to communicate confidentially with EEOC 

attorneys, putting them in a worse position than if they had filed separate actions, 

which Congress believed many could not afford to do. Thus, EEOC takes the position that although it does not have an attorney-client relationship with claimants, 

the elements of the attorney-client privilege apply to EEOC’s interactions with 

claimants that are necessary for the agency to litigate its claims effectively. This 

means not only that communications between EEOC attorneys and claimants are 

protected from disclosure, but ex parte contacts by opposing attorneys with claimants are prohibited. 

24. The EEOC is required to establish or make available an Alternative Dispute 

Resolution (ADR) program that may be available for the pre-complaint process and 

the formal complaint process. The EEOC, however, may make a determination regarding whether to offer ADR in a particular case. 

a. Once a decision has been made by EEOC as to whether to offer ADR, are the 

parties involved notified of that decision prior to further administrative contact? If 

not, why not? 

b. What percentage of cases does the EEOC offer ADR in the pre-complaint process? 

c. What percentage of cases does the EEOC offer ADR in the formal complaint 

process? 

d. Does the EEOC offer ADR during initial counseling of the complainant? If not, 

what informal methods of resolution does the EEOC counselor offer? 

e. How does the EEOC decide whether to offer ADR in a particular case? 

f. In deciding whether to offer ADR in a particular case, does the EEOC take into 

account a claimant’s desire to mediate, litigate, or settle? 

RESPONSE: The procedures applicable to discrimination charges filed against private and state and local government employers differ from the procedures applicable 

to complaints filed against the federal government as an employer. This question 

appears to confuse the Federal complaint process (complaints against federal agencies) with the system EEOC uses to process complaints against private sector and 

state and local government employers. We are providing a general explanation as 

to how EEOC uses mediation to resolve disputes involving employees and employers 

in the private and public sectors. 

EEOC uses mediation extensively as part of its processing of charges filed against 

private and state and local government employers. Participation in mediation is 

strictly voluntary and at no cost to the parties. EEOC supplies the neutral who 

leads the discussion between the charging party and employer as they seek to come 

to a mutual agreement as to how to resolve the matter. Mediation is offered to approximately 65 to 70 percent of all charging parties. Once the charging party accepts the offer, we then ask the employer whether they wish to mediate the dispute. 

As shown below, the majority of employers do not agree to mediation: 

2010 Respondent acceptance rate: 24.4% 

2011 Respondent acceptance rate: 25.6% 

2012 Respondent acceptance rate: 25.5% 

If the parties agree to mediate, the success rate is extremely high: more than 70 

percent of the mediations result in resolution of the charge. 

2010 73.7%; 2011 73.4%; 2012 76.6% 

In addition, the agency encourages the employer community to enter into Universal Agreements to Mediate (UAMs). These agreements reflect employers’ commitment to participate in mediation. At the conclusion of FY 2012, the agency had secured a cumulative multi-year total of 2,140 UAMs, which is a 7.1 percent increase 

from FY 2011. 

For complaints against federal agencies as employers, complainants must first 

participate in counseling by an EEO counselor employed by the federal agency. The 

federal sector process delineates between a pre-complaint process (counseling), during which ADR is routinely offered, and the formal complaint process. Accordingly, 

we cannot provide specific answers to questions A-F. 

25. When a complainant wishes to file a class complaint after initial counseling, 

the complaint is sent to the relevant EEOC field or district office, where an EEOC 

administrative judge determines whether to accept or dismiss the class complaint. To 

be certified as a class, the administrative judge must decide the certification requirement of numerosity, commonality, typicality, and adequacy of representation are fulfilled. 
66 

a. Does the EEOC separately communicate with each member of the proposed class 

in its determination of the class certification requirements? 

b. Does the EEOC collect documents and other non-testimonial evidence from each 

member of the proposed class in its determination of the class certification requirements? 

c. Is the employer notified during this process that a class complaint is under consideration? If not, why not? 

RESPONSE: The processing of class complaints of discrimination filed by Federal 

employees against Federal Agency employers is governed by 29 CFR 1614.204 and 

differs from the private sector administrative process. 

In the Federal sector process, a Federal employee files a complaint with the Agency that allegedly discriminated against him or her. A complainant may move for 

class certification at any point in the process when it becomes apparent that there 

are class implications to the claims raised in the individual complaint, but they 

must first seek counseling with an agency counselor. Once the class complaint is 

filed with the agency, the agency representative forwards the complaint and the 

counselors report to the Commission. The Commission assigns the complaint to an 

administrative judge or complaints examiner. (§ 1614.204(c)). 

(a) The EEOC does not separately communicate with the individual class members or collect documents or other evidence directly from class members. The administrative judge communicates with the class agent, who acts for the class during the 

proceeding. (§ 1614(a)(3)). 

(b) The administrative judge communicates with the class agent if more information is needed to make a decision regarding the prerequisites for certification of a 

class complaint. 29 CFR 1614.204(d)(2). The administrative judge does not communicate directly with class members. 

(c) The administrative judge transmits the decision to accept or dismiss the class 

complaint to the Federal Agency and the class agent. The Agency then takes final 

action by issuing an order within 40 days of receiving the hearing record and the 

administrative judge’s decision. (§1614.204(d)(7)). The final order notifies the class 

agent whether the Agency will implement the decision of the administrative judge. 

The Agency must use reasonable means to notify all class members of the acceptance of the complaint for further processing. (§1614.204(7)(e)). 

26. In fiscal year 2012, how many lawsuits did the EEOC win outright, through 

jury verdict or summary judgment? 

RESPONSE: In FY 2012, the Commission resolved 13 litigation cases through a favorable court order (judgment following a verdict, default judgment, or summary 

judgment for the Commission). 

27. The EEOC claims process has a costly effect on small businesses, especially 

when the case is litigated. What are the EEOC’s internal procedures for resolving 

cases in a timely manner to reduce costs to employers, and ultimately consumers? 

RESPONSE: EEOC is sensitive to the concerns of small business and devotes significant resources to educating small businesses so that they do not run afoul of the 

EEO laws. In fact, the Small Business Administration Ombudsman has given EEOC 

a rating of ‘‘A’’ or ‘‘A¥’’ for every year of this last decade for its efforts in responding 

to small business concerns. EEOC’s administrative enforcement procedures provide 

small business with opportunities to resolve charges efficiently. EEOC offers mediation to both parties at the beginning of a charge. If both the employer and employee agree to mediation, over 75 percent of those charges are resolved successfully 

in the mediation process, and those resolutions occur in an average of 90 days. Likewise, employers are encouraged to settle charges prior to the completion of our investigation and to provide timely information to EEOC to rebut the allegations in 

a charge. Either can ensure efficient resolution of a charge. 

EEOC has created fact sheets, brochures and compliance guidance which are 

available through the EEOC website. Small businesses can obtain these materials 

free of charge through EEOC’s publication center. Copies may be ordered through 

EEOC’s website at http://www/eeoc.gov/eeoc/publications/index.cfm or via a toll 

free telephone number (1-800-669-3362). EEOC has also developed fact sheets and 

publications specifically for small employers, such as ‘‘Small Employers and Reasonable Accommodation’’ and ‘‘Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors.’’ To help small employers understand 

newly enacted laws, the EEOC has posted ‘‘Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008’’ and ‘‘Questions and Answers for Small Businesses: EEOC Final Rule on Title II of the Genetic 

Information Nondiscrimination Act of 2008’’ on its website. These documents also invite small employers to contact our Small Business Liaisons to obtain confidential 

assistance with compliance in specific workplace situations. 
67 

Also, EEOC provides no-cost outreach and education programs as well as feebased training and technical assistance to all employers. The training and materials 

we provide to small employers have been designed to give them the information 

they need to comply with the federal anti discrimination laws enforced by EEOC. 

In FY 2012, EEOC conducted 577 free outreach events directed toward small businesses, which reached about 63,000 small business representatives. An additional 

4,654 small business representatives attended fee-based events. The most popular 

topics for small business audiences were Mediation, An Overview of EEOC, Sexual 

Harassment, Charge Processing, Title VII of the Civil Rights Act and the Americans 

with Disabilities Act. 

A Small Business Liaison is assigned to every EEOC office. Small Business Liaisons answer questions about the laws EEOC enforces, our mediation program and 

what to expect during an investigation. When a charge of discrimination is filed 

with EEOC against a small business, our field offices send a letter informing the 

employer of the availability of the Small Business Liaison. The letter invites small 

businesses to visit our website and informs small employers that any inquiry or request for assistance directed to the Small Business Liaison will not adversely affect 

the investigation of the charge. 

Mindful of the importance of continuing to improve our outreach to small businesses, EEOC’s Small Business Task Force, led by Commissioner Constance S. 

Barker, was established at Chair Berrien’s request in FY 2011. 

28. As the Supreme Court noted in Clackamas Gastroenterology Assocs. v. Wells, 

the definition of ‘‘employee’’ in anti-discrimination laws—that it is ‘‘an individual 

employed by an employer’’—is ‘‘completely circular and explains nothing.’’ Thus the 

determination as to whether partners in a particular partnership are ‘‘employers’’ or 

‘‘employees’’ is based on a multi-factored, facts-and-circumstances test. To the extent 

the statute needs clarification, do you believe litigation is the proper avenue through 

which to define partnerships? 

RESPONSE: Although the anti-discrimination statutes do not provide an extensive 

definition of the term employee, the Supreme Court has observed in several decisions that ‘‘’when Congress has used the term ‘employee’ without defining it, we 

have concluded that Congress intended to describe the conventional master-servant 

relationship as understood by common-law agency doctrine.’’’ Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 445 (2003) (quoting Nationwide Mut. 

Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992)). In Clackamas, the Court relied on 

EEOC Guidelines that ‘‘discuss both the broad question of who is an ‘employee’ and 

the narrower question of when partners, officers, members of boards of directors, 

and major shareholders qualify as employees.’’ Id. at 448-49 (citing 2 Equal Employment Opportunity Commission, Compliance Manual §§ 605:0008—605:00010 

(2000)). 

Like many federal employment and labor statutes, the statutes EEOC enforces 

broadly define employee. Court decisions and EEOC Guidelines provide a sufficiently clear framework for assessing the factually-intensive question of whether 

particular individuals are employees covered by the anti-discrimination statutes. 

29. Today, most partnerships, particularly large partnerships, adopt internal management practices such as governing boards that allow them to delegate managerial 

functions while maintaining partner ownership of the firm, control over professional 

work product, and voice on issues critical to the partnership. In your view, does the 

delegation of partnership authority to internal governing boards transform the partners of a firm into employees rather than employers? What factors, in the EEOC’s 

view, are most critical to determining whether and when such a delegation transforms partners into ‘‘employees?’’ 

RESPONSE: As the Commission has explained in its Compliance Manual, the determination of whether an individual is an employee, rather than an independent contractor, partner, or other non-employee, is fact-specific. This determination depends 

on the actual working relationship between the individual and the partnership. The 

relevant question is whether the individual acts independently and participates in 

managing the organization (not an employee), or whether the individual is subject 

to the organization’s control (an employee). The EEOC has identified six non-exhaustive factors relevant to making this determination: 

• Whether the organization can hire or fire the individual or set the rules and 

regulations of the individual’s work; 

• Whether and, if so, to what extent the organization supervises the individual’s 

work; 

• Whether the individual reports to someone higher in the organization; 

• Whether and, if so, to what extent the individual is able to influence the organization; 
68 

• Whether the parties intended that the individual be an employee, as expressed 

in written agreements or contracts; and 

• Whether the individual shares in the profits, losses, and liabilities of the organization. 

In Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 449-50 

(2003), the Supreme Court approved of the EEOC’s emphasis on ‘‘the common-law 

touchstone of control’’ when determining whether an individual with the title of 

partner is an employee under the EEO laws. The Court noted that whether shareholder-directors in that case were employees could not be determined by asking if 

the director-shareholder position ‘‘is the functional equivalent of a partner’’ because 

‘‘there are partnerships that include hundreds of members, some of whom may well 

qualify as ‘employees’ because control is concentrated in a small number of managing partners.’’ Id. at 445-46. The Court adopted the six-factor control test from 

EEOC’s guidance, emphasizing that the coverage determination depends on ‘‘all the 

incidents of the relationship * * * with no one factor being decisive.’’ Id at 451. 

Thus, if a determination were made in a particular case that individuals holding 

the title of ‘‘partner’’ are actually employees, it would be a factual determination 

guided by existing law. 

30. In the last decade the EEOC brought a highly publicized lawsuit against the 

law firm Sidley Austin, alleging its partners were employees and its retirement policy 

for partners therefore violated the Age Discrimination in Employment Act. What, in 

the EEOC’s view, were the most significant characteristics of Sidley’s partnership 

structure that led the EEOC to conclude that its partners were ‘‘employees?’’ 

RESPONSE: In its brief to the U.S. Court of Appeals for the Seventh Circuit, the 

EEOC looked at a number of factors that led it to conclude that at least some of 

Sidley’s partners could properly be considered employees. In particular, the Commission’s brief discussed remuneration, noting that the extent to which partners share 

in the firm’s profits varies tremendously, and many received most of their pay in 

a form that resembled salary. The brief discussed ownership, and noted that the 

amount of each partner’s required capital contribution varied considerably from individual to individual. Finally, the Commission’s brief discussed management. 

Sidley was governed by a 36-member executive committee; members of that committee owned almost 80 percent of the firm. The executive committee, and its 8- 

member management committee, made all of the firm’s critical decisions, including 

partnership admission, partner expulsion, pay/ownership allocations, practice group 

head appointments, opening and closing of offices, and who will join the executive 

committee. 

31. Is the EEOC currently pursuing directed investigations of mutually agreed 

upon retirement policies for partners that were not commenced following a charge 

filed by a partner? If so, what factors did the EEOC consider in deciding to prioritize 

those investigations over the tens of thousands of backlogged cases involving employee complaints? 

RESPONSE: There are currently two pending directed investigations of alleged violations of the Age Discrimination in Employment Act (ADEA) based upon policies 

which mandate retirement at a specified age for person employed in various positions, including as partners. 

32. The EEOC’s Strategic Enforcement Plan lists six enforcement priorities. Do you 

intend to make mutually agreed upon retirement policies in legal and accounting 

professional partnerships a focus of the EEOC’s enforcement efforts? If so, which of 

the six enforcement priorities identified in the Strategic Enforcement Plan make mutually agreed upon retirement policies for partners an EEOC priority? 

RESPONSE: Retirement policies are not a priority issue under the EEOC’s Strategic Enforcement Plan. Whether individuals are employees under the federal civil 

rights laws is an important issue of access to justice that is a priority (#5) for the 

agency under the Strategic Enforcement Plan. 

While the establishment of priorities in the SEP is designed to provide focused 

attention and resources in order to have greater impact, the SEP does not preclude 

the agency from addressing other issues of discrimination. 

QUESTIONS REGARDING THE EEOC’S INTERACTION WITH THE DEPARTMENT OF LABOR’S

OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP)

34. Did the EEOC comment on the OFCCP’s rescission of the agency’s 2006 Compensation Standards and the issuance of OFCCP Directive 307? Why not? The EEOC 

agreed with the 2006 Compensation Standards. Has the EEOC’s position changed? 
69 

RESPONSE: The EEOC reviewed OFCCP’s notice of proposed rescission of the 2006 

compensation standards in January 2011 after it was published in the Federal Register; reviewed a draft notice of final rescission in January 2012 pursuant to EO 

12067; and reviewed draft notices of final rescission in November and December of 

2012 as part of the Office of Management and Budget’s EO 12866 interagency review process. The EEOC commented on the notice of rescission in November 2012. 

The EEOC did not review Directive 307 and therefore did not comment on it. 

The substance of the EEOC’s interagency comments and conversations is protected from disclosure by the deliberative process privilege. 

The EEOC’s position in 2006 that the OFCCP’s compensation standards were consistent with Title VII has not changed. However, the EEOC also does not disagree 

with the OFCCP’s decision to rescind the standards and to adopt new standards 

that are also consistent with Title VII and that give the agency more flexibility to 

enforce EO 11246 in a manner consistent with Title VII. 

35. As you know, Executive Order (EO) 12067 requires the EEOC to ensure coordination of federal equal employment opportunity enforcement efforts. In particular, 

EO 12067 requires the EEOC ‘‘to develop uniform standards, guidelines, and policies 

defining the nature of employment discrimination’’ and ‘‘develop uniform standards 

and procedures for investigations and compliance reviews.’’ Did the EEOC review 

OFCCP’s notice of rescission of the 2006 Compensation Standards and the issuance 

of Directive 307 under EO 12067? Did the EEOC provide any feedback to OFCCP 

about the approach contained in Directive 307? Please provide any and all correspondence between the EEOC and OFCCP on this subject. 

RESPONSE: As stated in the answer to Question 34 above, EEOC did review 

OFCCP’s notice of rescission and provided feedback to OFCCP. The EEOC did not 

review Directive 307 and therefore did not comment on it. Attached are copies of 

nonprivileged correspondence between OFCCP and EEOC on this subject. 

36. Under the EEOC’s Compensation Manual, published in 2000, the EEOC instructs investigators to ‘‘determine the similarity of the jobs by ascertaining whether 

the jobs generally involve similar tasks, require similar skill, effort, and responsibility, working conditions, and are similarly complex or difficult.’’ The EEOC’s Compensation Manual continues, ‘‘[t]he actual content of the jobs must be similar enough 

that one would expect those who hold the jobs to be paid at the same rate or level.’’ 

Does the EEOC interpret OFCCP Directive 307 to be altogether consistent with these 

instructions? 

RESPONSE: There is no conflict between the EEOC Compliance Manual language 

quoted above, which appears in the Guidance section about disparate treatment, 

and the relevant language in OFCCP Directive 307. In particular, Directive 307 

states at pp. 12-13: ‘‘For purposes of evaluating compensation differences, employees 

are similarly situated where it is reasonable to expect they should be receiving 

equivalent compensation absent discrimination. Relevant factors in determining 

similarity may include tasks performed, skills, effort, level of responsibility, working 

conditions, job difficulty, minimum qualifications, and other objective factors.’’ In addition, the EEOC’s Compliance Manual’s disparate treatment subsection also states 

that the method suggested for conducting a comparative compensation analysis is 

not intended as an exclusive method, and subsequent subsections detail other methods for determining whether compensation discrimination or discrimination in practices that affect compensation have occurred—topics that are also addressed in Directive 307. 

37. As you know, in August, 2012, the National Research Council of the National 

Academies of Sciences (NAS) released a report entitled, ‘‘Collecting Compensation 

Data from Employers.’’ This report was commissioned by the EEOC. The report contained two primary recommendations: 

Recommendation 1: In conjunction with the Office of Federal Contract Compliance 

Programs of the U.S. Department of Labor and the Civil Rights Division of the U.S. 

Department of Justice, the U.S. Equal Employment Opportunity Commission should 

prepare a comprehensive plan for use of earnings data before initiating any data collection. 

Recommendation 2: After the U.S. Equal Employment Opportunity Commission, 

the Office of Federal Contract Compliance Programs, and the U.S. Department of 

Justice complete the comprehensive plan for use of earnings data, the agencies should 

initiate a pilot study to test the collection instrument and the plan for the use of the 

data. The pilot study should be conducted by an independent contractor charged with 

measuring the resulting data quality, fitness for use in the comprehensive plan, cost 

and respondent burden. 
70 

a. What is the status of the EEOC’s implementation of these recommendations? 

Has the EEOC and OFCCP developed a comprehensive plan? If so, please provide 

a copy of the comprehensive plan. If not, why not, and when will it be completed? 

b. Has an independent contractor been selected for a pilot project? 

c. How will the EEOC ensure coordination with OFCCP with regard to these recommendations? 

d. Has the EEOC had any discussions with OFCCP about the comments OFCCP 

received in response to the Advance Notice of Proposed Rulemaking on a Comprehensive Data Collection Tool, 76 Fed. Reg. 49398 (Aug. 10, 2011)? 

e. Will EEOC commit to using its authority under EO 12067 to require OFCCP 

to adhere to the NAS recommendations before issuing any proposed regulations on 

collecting compensation data? 

RESPONSE: a. EEOC is thoroughly considering the NAS Study recommendations 

and will take them into account before proceeding with new collections of compensation data. As part of the review and consideration of the NAS Study recommendations, EEOC staff has discussed the recommendations with representatives of the 

U.S.D.O.J. Civil Rights Division and OFCCP, as well as agency stakeholders such 

as the National Industry Liaison Group. 

b. EEOC has neither sought nor selected an independent contractor for a pilot 

project. 

c. See responses to a and b, above. 

d. EEOC has reviewed comments received by OFCCP in response to its ANPRM. 

We have not had formal discussions with OFCCP about those comments. 

e. Pursuant to E.O. 12067, EEOC will, as it has to date, communicate with 

OFCCP and continue to work closely with the OFCCP concerning the collection of 

compensation data. 

REP. HUDSON QFRS

1. There is a case in which an employee filed a gender discrimination case against 

her employer. When the employer tried to meet with the EEOC representative and 

the employee for consultation, the employer instead found the EEOC representative 

acting as a prosecuting attorney for the employee instead of a negotiator between the 

parties. The employer was not notified prior to the meeting of the terms of these discussions, and whether or not the EEOC representative would be used in a mediating 

role or prosecuting role, leaving the impression these meetings were informal negotiations. 

a. To what extent does the EEOC give a notice of the terms to all parties involved 

prior to in person consultations? 

b. In other cases is it protocol for an EEOC representative to play negotiator/mediator and prosecutor during an investigation? 

c. If employers are not notified of the status of the consultation meeting, what are 

their administrative rights to have counsel present and/or delay the meeting until 

counsel is present? 

RESPONSE: a. It is unclear from the questions at what stage of the EEOC investigation the consultation meeting occurred. Generally, employers and employees 

may meet in a mediation, which is a confidential process separate from the investigation. (See answer 25). Parties to an EEOC mediation generally do not, in advance of the mediation session, share positions or terms to which they would agree. 

There is considerable sharing of terms of settlement during the mediation. 

They may also meet during conciliation, which only occurs after the investigation 

if the agency has made a determination that there is reasonable cause to believe 

discrimination has occurred. (See answer 20.) In conciliation, EEOC invites both 

parties to meet, either in person or over the phone. EEOC generally conducts conciliation in one of two ways, i.e., the EEOC office shares the details of the proposed 

conciliation terms in advance in a letter, or plans to share the terms during the conciliation conference so they can be explained and questions answered. 

b. During an investigation of a charge, the EEOC acts as a neutral fact-finder and 

gathers and evaluates evidence. The investigator may also seek to resolve the 

charge through a settlement agreement prior to a determination on the merits of 

the charge. At the end of the investigation, the EEOC makes a determination on 

whether the evidence establishes that there is ‘‘reasonable cause’’ to believe that discrimination occurred. If the evidence establishes a violation, the investigator now 

shifts roles. As required by the statutory conciliation process, the investigator must 

represent the EEOC’s interest in obtaining an appropriate remedy for the discrimination found. 

c. Employers are notified of the status and scheduling of a conciliation conference 

and have the right to have counsel present. Scheduling of the conference is done 
71 

at a mutually agreeable time. The EEOC’s Compliance Manual provides that conciliation with respondents should generally occur face-to-face, or by phone if this cannot be arranged or if the proposed agreement is straightforward and brief. It also 

provides that whenever possible, conciliation should occur with respondent officials 

who have authority to enter into an agreement. 

2. As you know, the EEOC’s Chicago District Office is currently investigating 

PricewaterhouseCoopers regarding their partnership agreement and mandatory retirement age. The six-factor partnership test adopted by the Supreme Court in 

Clackamas would presume the partners at PricewaterhouseCoopers are not subject to 

the ADEA. 

a. Should the EEOC decide to pursue litigation of this case, do you believe it would 

involve a major expenditure of resources or have a high likelihood for public controversy? 

b. Given the Strategic Enforcement Plan’s objective of retaining the decision to 

commence litigation over cases that (1) will involve a major expenditure of resources; 

(2) present issues in a developing area of law; or (3) cases with a high likelihood for 

public controversy, would you expect the commission, and not the general counsel, 

to vote on whether to commence litigation against PricewaterhouseCoopers? 

RESPONSE: The Supreme Court’s decision in Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 446 (2003) held that ‘‘there are partnerships that 

include hundreds of members, some of whom may well qualify as ‘employees.’ ’’ The 

Court endorsed the multi-factor, fact-based approach set forth in EEOC’s Compliance Manual as the correct approach to determining whether a person impacted by 

a mandatory retirement policy should or should not be considered an employee. See 

also Responses 28-29 above. 

The General Counsel sought Commission approval for litigation against 

PriceWaterhouseCoopers based upon the findings of the Chicago District Office’s direct investigation of the firm’s mandatory retirement policy for partners. The Commission voted to disapprove the recommended litigation. 

[Addendum to EEOC’s response to questions submitted follows:] 
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Sysl.mlcCompon .. Uoo Olraiml ... Uon (St.nda,d'lond Volu""ry Culdelln .. 

10' 5011·[ •• I,,. ''on oICom""MoU"" P .. clicoo latComplianco "'lIh E>oocull .. 

Ora., l1U6 wllh "pool 10 ~y""",'e 

Com"""""I,," Diraiml ... ,lon 

(VoI"n"ry (;"'0.11"..1_ OFCO' I. pm"""ln, '0 fMCInd tbo S.ond.nl. 

... h!ch h.a .. Umllod OFIXl". ob;Ji'Y tn 

.fIoctlvely In, .. Upto ..... Iyu and Iden,jfy rom ]>,,,,..lIon dLocrim lnotlon. 

In .., doin .. 0= .. Ill con,ln,," '0 . dh_ to ,ho 1'1'll>d1'l .. of 11,I. 'I'll of 

'hoCivlllllsh" Ad of 1_ . ... "..ndod rntt. \'1111" In ... nlp,t", oompon .. Uon dloet'lfO,noUon .nd ... Ill .. In.,I,"," 

noxlblll,y in I" " .. of in''''i1Iotl .. ' pprwth ... "d '0010. Oru;!' . I"" 

P"'poM' to .. tsLlI,h p..,.,.,.J" .. fo, 

I"_llp"'" """'po .... 'loo dlraimln.U"" ,h"'"lh 'h .... dIllOtl.1 

mo."" of ",I", Ito <ompli' n"" .... n".I. dIMClI ... and 01'- ."If,uldo""". 

O~ i. propool""o ..-Ind ''''' V.I"n'. ry Could.lI .... boco"M 'hoy.ro 1.~ly "0..-1 by tho 1'0001'01 

(;o •• ",",on' o>"' ..... lng """''''"nl'y .nd h ... 00l I>.".n .ffocti •• ""fo"",,,,,,n' 

""'''81-

D~ .. S; Comment> m"", """"",i.ed on <>< boforo Mlrch o. lOll. 

. ...-..... : You m'y,"bml'commoHlo. 

Idonllned by "",,,bot '~SO-ZN~. by o"Y of ,ba rail""'; .... m.,bodo: 

• Fod~",I.II,,'.""'~ing 1'''''.1: hi!p:!! ,.,......"'8ul.llo" .. ,.,... r'oUow ,h. 

'''!'f.'x~:n'i ~~~~~1:;;=~~" of 5 paS" at fewe'l. • Moll: DlMClO'. IlM.loo 01 Polley. Plonnlntl.ond Prosnm o...lopmOD'. 

0!fIc0 of 1'odotot r,,",,-.et Compllon"" 

Prowom •• lIoom N3'12. 200 

C"",.lIt"lIon Avon"e. NW .. Wooblns'''''. OC20210. 

"-"""1" oI,,,bonl .. lo", ... ilI not ho .ckno .. lodpd: ""-or, tho .. ndo, m.y 

«<I""" <OI'III"""U_ ,bal . ",boni .. lon 

~~~tt::~IT9~~:ri::;~f ~ (2011 G~]~1317 f'M'YJ!t_ ... "'" toll- I .... numbotto). 

All co ....... " """'00. Includl", ."Y por$<>1'IOll"fo""oU." provided . will bo ... il.bl.onll .. " hnp:1! 

M'WW''''8u1ol;"" • .",v.nd for p""lie 

irulpoollo" Jur;ng norm.l buoln ... 

h"""," Room C3n~. 200 Co""I,",lon 

A .... ""., NW .. W .. hlns'on, OC 202l1l. Indlvldu.1> n •• dlllll ... 1"Of"" to "",I ... common" will bo provide<! .. l1h 

'ppropri.,. alda ."ch .. ..,.0.<0 0' print m .... m ... , Cop;". of ,hi. Notloo of 

I'ropooood RMcI .. lon will bo mod. 

... II.bloln 'h. foIlO .. I"\","""., I.orxc 

prin" "",m.: .I"",ronlc I. on compu,.,. di.k: .nd o"dlolOpe. To 

~"!~~':::J'J:l;~=\!.,::~~::: 

ofl'ro~ Iloo<;I .. ion ;"." .11.""" rwm.,. oo",oc! O!'a:l'., ,he lolopOOno 

numbo .. '" . Jd ..... 11,,<></ .bo"". 

'(IA """'HEA "'OI1IIAhOM CONTACT: 

UI"""o,.I>i.I.lon 01 I'olley, Plon"i",. . nd Ptogto., Dow.lop ... n,. om,," of 

FodontlCon' ..... Compll.""" .......... ms, 

200CoO.<1itution A""nuo. roIW .. ~""", 

N3422. W •• hington , OC 202.0. 

T.krphoJt., (lQ~1 ~9.1-<)'02 (""'00) Of 

(2011693-1337 (TIn 

............... , .... """""",hOM: 

], Sock3'0uftll 

Tho Il<pa"_n' oIl.o n~o OFr.CP onl"""" Exoc"ll .. Otdot 11206 whleh 

""lui"" Fedo .. l eo-.m"""" 

""n'_ .nd . ubeo,","".".,o 

provldo oqual .... ploytnon' op~unll1 

Iht<.ush .m""",I"" "">on .nd !IO"~lraim\".'lon buod on .--, 001.". ...,ionol 0I18in ... lIs'on. at_. Com""n .. tlon dlraiml ... "OtI 100 .. fo'm of dioc:rim! .... ;on pronibltod by tho 

"~Ot-der. 

OFU;P o.fo""", 00"'_"'" 

oornpU. _ wl1h ,hl,obl.."I"" 

prlm.rily by <OIIJucti .... oompli.nc:o 

... luo'iono. 15<0" CPR 011-1.:0.1 

OPCCI".I ........ ndl'" policy I. '0 folio .. 11,1. VI! prinelpl .. w-.... 00"ductln8 .,.,01)"'$0 OJ po'.nUO! dlllerlmi ... ,lo" u"do, ExocuU .. Ordo, ! 114fi. Incl""11III oom"",,..",,,, 

dl$etl",I ... ,,,",_ Compe" .. ,I"" 

dillerl",i"";on ... y occu, o" . n Indlvid".l bo.b, <>< 'ys'en'ic.olly , 'h.ol 10, 

I, I .... 'doopnood In on "",,";1.0,10" du" 

10 dIO<l'I"'ino' '''Y <ompe .... 'I"" 

0)',1""". OF'CCP , .. ditionolly lias .. .. bli.hOO p,ooedu ... fo, In"""!go,',,, 

oorn_ll"" o\l"""",ln,,lo", .. ...,11 .. o,h", lo,m. 01 dl>crlmlnoUon, throosh 

In"ruellons fot I" oompH.,..,. .m""" 

"",".'nod In Ilit Ol'O:r t'ederol Con,,",,,, Compll.nco Monuol (1'COoI1. 

dlMClI""" and other ."If g"lda""" m .... ,.t •. 

Ido,,'llylns.nd ,entodyi''l com_,lon dlraimln.U"" ho, boon on Impol1' n' pOrt ofOl'CCl' """'pliHl,," . lfort. fo, ma"y y ..... Concomo .bou' oompon .. tlon dloc:rimln.U"" led OFCCP In (:01 ... "", y_ (<:YI7000 to 

bosln ""lulrin8co"',"""otO '" .uhml< """,_<Ion d." ""l"''' .. II" ,he ochodull .... lotter" ,ho ou_ 010 oom~U.",," ... I".IIon ... mollO' of 

""" ... ond .. PO" or,h. do,. reponOO 

In 0 !>OW Eol".l o.,,,,,,,"nlly S"","), • which co.tmt<I con''""'''''' -.. 

""lulffO<! '" "' .... " '0 O!'lXI', m.. 

Scheduling I .. " ....... pp"'vOO ""do, lhe 1' . ....... Of~ Rod""'koo Ae' OMB NO . 1215-0012; .... 55 F1l &1012. &1036 

(Novombor '3. ZOOO) fot ,h. nOli"" 

"'3'nll", ' ho Equ.1 OpportunllY 

5u""'1.j In <:Y 2000. O~ .100 bopn 

""l"',I", 00"',"",,0 .. '0 pfOOoC1I .. ly condUCl In"'~lh 0",1)'>01 ollbol, 

.,."..pon .. ,\on O)'''om. to on", .. ,ho, 1_ .ystom. oom<t 001 diraimlno'Of)'. 

(s"" 41 CF'R 1)IH!.11(bMlj.1 

OFU;l' chonrd h •• pprooch to l"v .. ,lp,l", """'ponoollOlO 

dl_ml .. Uon In 200II. On Ju .. 16. 

2006.01''0:;1' p"bl;.1Hod In the rotl ... 1 "-"Slol •• 'wo nnal lda,,~ """"",.no> 

.. IOled to Io."'i!)'i", comproootl .... diocotmlnaU,," u"d", Exocuti .. Or,I., 

11206 'hOI """"i.....d ;n"", ..... "o,," of OFGCP ",!ul"!ono.nJ 11,1. 'I'll 

ptlnc!pl"" In'.",...!", Nondlraimi ""ltln Moqul.." .. n" 01 

Ex"'_u,I •• Ord", 112'6 wi,h ""-' '0 Sy.wmlc (;om"""",'lolI DloctIrnln."OtI 
74 

t·w.ra l R"8I,'e,tVol. 16. No. I tMond ~. r~n ... ry 3. 2011 tpropooo<! Rul ... " 

(S .. ndard.1 ond Volun .. ry Guld<U .... 

fo, Solf·I.oluoUon of C.ompon" 'I<»I 

I'rocIIC<II f., CompU • ..,. wllh E.<oo:"lh,,, 

On:I<, I 11<6 ",Uh ""'peel 10 .~Y".ml< 

Com"..soUon UI""';mln.,h", 

(V.lun .. ryGuld.II ..... I. 1_11 FR 3512411uno 15. 2006) !or Ih. $Iond.r<!o 

and 11 FR 35'14 II""" 16. """'I !or Iho Volun .. ry Guldolln ... 1 f\u,bor. Ot"CO' 

"""in¢ed lhe f,q",,1 Opponunl,y Survoy In 2006. (s..11 t"H SJ032 (Sopl"",bot 

8.2_)·1 

Tho S .. nd,rdo ... fonh , n .... tJsld 

procod"ro!or In",,"llpllnl.nd 

.... Iy.r., ')'Olcml< """,,,.n .. llon 

d'-l",I .. allon c-. Sy" ... I< 

comporuoll"" dillCl"lmlnalion I. donnod 

.. dl$<rimllLlllon un<lor 0 P"''''''' ... 

p .... k .. or di,poral' '"",' ... n'. Is.. 1, I'll '" 3S1411.1 Tho s .. ndard. preocrlbo p,.,.,..,.u .... '0 he 1011_ by 01'Ol' ""mpl",,,,,,, nffi<>m when cOlIdl>Cling 

1 ...... lptlon •• f .)'O,oml< compo ... llon 

dlocr1",lnlllon In all caoos. Includl,,!! 

bow to group omplO)'MS wh ... 

c."n".. ... """ I. 10 bo ""m".ted In 0 dioc,i",lnot;'m .... Iyolo ...... "Irl"l! on«:<lntol ovlde,.,. of """,,,.ns. llon diocrimino,i<>n """'1" in unu,u,1 CUM. 

.nd ""IUlllnSlho OM ofmu ill plo 

=~":':~:rJ:;:= 'I::~~ grou". oro diocrim'''''tory. Th_ 

plOC<!du ..... ,. 10 he followt<l regordl ... 

0( .... I .... of, ".niculor cuo. Tho 

riJidH, of lho Sland.rd, rep"""'.'" 

'Jsn;flcan' don>at1"to from Ot"OCl'". ' .... "1.""1 ,.!loIl,,!! 01 """'""",",lion 

In .... ,lpllon .nd .... 1"1<01 proood",,", In 11>0 10< .. of,h. cuo bo.oed on 11110 VII 

pritIClpl .... In .... IIS. llons of 'y'1<lnlc 

compen .. tlon dlocrlmlnollon ... 

complo' ... d no,,,,,,,,,. Dull., lho 

conduct of IXHDplill1l« .... lu"lono. 

m"CO' boo ,rad!!lon.lIy IncuMd "" 

Idontlm .. com"" .... 'ion dlOCTimlnaUon Ihrough lho dewlop ...... , 

of 0 •• tIely of In ... tll'"'. and 

.""lytieall""I •. Th. u" of. I",tI""lo. 

1001. '" combln"l.n .r _10 .• """"d. upon lho r",,, of 0 .peclRc CUI .•• d 

Includ .. «>fIJIuill., with I.bot 

• c.,,""", .... nd <>tho. "po"'. " 

.PW!1$'~~J.rd • • 1.., . lgnIH""nll,II",I, 

Of"CCP· • • bllill ,. Id •• 'ily 

componsolion diocrlminollon by 

Imposin8 o_ly notrow In ... llp'lon 

ptOCOd" .... lb. , t" hor,nd who' would 

be ""lui...! under Tit 0 VII princlpl .. In 

1!!lp'lon. Yor """mpl •• ,h. 5,.ndord. 

"".Iho'. o ... pll. "n" ..... I.,.... OI'CU' will nOl ioouo . "",Icoof 

.1.1.11011 (NOVlwilhou, pro.ldi .. . I>OCdOl. 1 •• ldoROO 10 ,uppon Of"CCP·. 

" 'UOIlcaI on l ly.I •. aul undot Till. VII. 

• P""om 0< V .... 1eo cI __ wld~ 

dio".n,. ' .... lm<1I' ".... ""'y bo P""''' by otallollca. _. "-II .. Int·1 Bmlh<:t/IoM 

nfT"""' ..... •. l)ojt"J SIal ... UI U.S. 

n •. 33<>-<0 119771: 1'01"",,",. Shul". 3" P.2d .... _, IIX: Cit. 19117). q. O/'"CCI' v. Ci<>on....,.,o Mill •. I"" .. No. 39-0PC-3g. u..cI, lon . nd Ordot 01 

Rom. nd . • lIp cp . .. " 15o<·y.r 1.0001 

NO'. 10. 19951: OFCCp •. joci<M>nvil'" 5M/»<'nI •• U -OF"C-I. Doci,lon . nd 

Remand OrdOl . • llp op. " s Is.c:·y 01 

1.0"'" May g. '99$1. M""""OI. Wq"lr;"g 

""",dot,1 ovIdon""l. plrllcul"ly p....,. .... II. In ""'"1"'0 .. '1on "...,. .. 

","ploy_ oft.n . to u .... >ntI) of lno 

"""'""",",lion I"OCOlv<><I b)'!X>-wor""'" .nd . .. . ... ul •. • nocdOl.lll ovid....,. 

from vlcll ... ofl"'ydloalml ... 'I.n "",y _ .. lot. 

Tho Standard·o mandOl.", "'" 0 

mulliplo _iM ",. ly,1o "'Idonlily 

eumpOO .. ,lon dlocnmln. ,km I. also 

~y n.m>W .nd i. no' "'Iult"od unci .... 

Ti,l. VI! princlpl ... WhH •• multi pl. 

"", ... IWI 0 .. 1)'01. moy bo. """,I ,,,,,I 

I" IdMllfyU,l<:<>mpotlr .. llon 

diocrlml ... tion. "'hOI ".'I .. lcol Of 

non""iOli<oI . .. I,... mo, bo bol'" oullo<l. dopoondllll on lho foct. or ,bo 

~. I" ,MIt. "'. now ""Ii""" .h. S!lndord. "",lflCOn.ly undonnln. 

O!-Uy, .bllily '" v\a<Ir<Iu,l, 

Inv""lg.ol. ond id.nlrr~ com""nsolion diS<:rlmi .. ,IOlI. 

Tho Volentary Guld.lln ...... bll.h 

pl"tlaodu .... , ... , OOn""''''' ""n oloc, I. 

uM In oondl>Cllng lhe .. If-onaly'" ot 

~~ mb~~~'::~":.:!Z'!' I:FR 011"""'"1" ....... ,...,' ..... u "",no 

, n.I)'I,,:.1 ~"_ oonlOlnod In ,h. Vol"nlOry Culdell_ . OFO::!' ....... Id 

deem . ""ot!aClOI. ,.booo .. II· .... I"'.lon ·.......".."1)' ..-,·,n. 

pn>ce<Iu .... ""tIl00d In tho VOIU"tOll 

~~1:;:2' ~b~nll:l~~~d wi' 

"""nllnO!. OI'CCl'·o ... iew of.he 

oml!aCl"'·' com". ... twn practlC1llS 

dun., . rompl"n". o •• I"atlo. In ,he m. nno"peclfood I" ,ho VoIun'or)' 

Guld.li .... (s.. 71 FRO! 3S122.1 In mu;p· •• ,oerl. "",.lnoo 2000. 

con.ract ... boWl """ly ullllzod .h • 

. ... 1)'11<01 l"'fC'du"" ",,'11""" in 11>0 Volun"r)' Guld.lI"", whon . n. I)"tlnl 

~i:;rl~(~X,f.r":lk:oo undor 

"'ddilionolly. ,ho .... 1)'1iool model ... 

fMh In Ihe Volu"'III)'Guldolin ... u""" from mony of lho ...... n ...... ,ho 

In_III"I>-. procodu"", proocrlbod by 

Ih. S .. nd"d,. For ." .• ,,'pl •• I,," 

Volun"ry G"ldoH_ " ,.bll.he<I 

<on,lo Ilsld n"m .. 1eo1 'h ........ ldo by 

..hlch Ill. slmil.tly . lIu.,od ornplo)'<>O 

il"'uplnp .... ,. be . nolyUld. 0Fa:P 

hell ...... lIuI, r ....... o I:Onlrl<:toro. lb ... 

'n_hold, may be .. ,,,.,,lInsly rJlfl;cull 

'0 1'1'1 001. 

II . Pmpuo.1 

OI'CCP proP"'"'" '0 .....end "'" S"ndotd. ond 11>0 VolunlOry Guldoll"", 

In Ih .I .~nll"I)' . OFU:Pboll._ 1I i. 

unll<lC1lSSal)' '0100." ""w P ...... I RqI •••• notlcoo rtk:ulo'ln~ I" 

1"''''1''"''1''1 ... or 1'JIJ. VU princlpl .. 

... 1,,0<1 10 ""mpenoo'ion dlocrl",lno,wn. 

O!-'CCP will 00<111"", ,. rollow 1'J.lo VII 

princlpl .. In 1"""'''1''11., and 

on.lyr!., oom"" ... 'I.n d Iocrim InOlIo. 

and In l"lOtp""lng "'IIuloli"" .... 1.10<1 ,,, 

"""'po"'lion dillerimln"I"". n.. 

=,:! ~I::.~ "::':~~~ ')'lHIO of OFCO' dlocriml""ti.n 

;n''''ivli.no. Onco ..-:Indo<l. " .. hi", 

In lho S .. ndltd$ or 1110 V"lun" ,y 

Culd.Hn ..... Ih.i, """,mbl .. ""uld ho 

.. 110<1 upo" " • ,""'m.n' oIOFlXl'·. 

lnIOl1'''''''lo" 0111110 VII prlnclpl ..... 

0t'CCP ,",,!!uloliono. 

!llho SlOndoTd. '''' ....:Indod. OFCci' 

will ,.lnolllUtotho proc'lco of ~0tC 1.1", 

lIS dloctollon 10 do",lop corn""n"lIon 

dlOalml .. ,jon In . ... II'Ii<>n procodu_ 

In Iho ..... mOnn", I, d.""i<>po OIhot 

;n'''';gotlon procodu .... OF"(:(:P will 

""nllm.oJly ton"" Ih_ P<O<*lu ... ,o • .. ua ,hl lll>o, .ro .. ofloctl ... "d efflClon' .. poo.lbl •. OFUl' will 

do..-I,,!, . nd I .. u" ",,,,,,""Iioo 

In"",Upllon procodu"", In t~ ..... 

mann .... p_u .... fo< Inv.ollp llnJl 

",hw form. 0' dlllClimlnotion. lor 

CJOImplo through tb. F"t;C.M. dlrecll .... 

. nd st&fI guldo....,. m"oriol •. .... monllono<l . bov • . Ol'(fl' ho. 

found ,lui, oonltOClOt"l .. ",Iy u .. lho 

. n. l)'Ibl proooduro , o8!l"'toc! In Ih. 

Voluntlll)' Gul doll .... lot omdUC1;., th. 

compo ..... 'iun ""'I)'ON ",,!ulnld by 

""",I"" SO-2.11(bMJ). In tho low 

Ins"""", who" oon'_ ... 110 .. cond"",od I.el, oompon .. lton ,",I~.I . 

In lhollUlnno . ........ o<I In 'ho 

Volu".1II)' G"idoll ..... ,he cootdlnaUon 

pn>ce<Iu .... of lho Volun"ry Guldolin .. 

110 ... not pro....! ,. bo on .lflClenl 

molhod f ..... nlyl., ,h., Ih. 

conlract .. ·• COInpo ... IIOt1 .y" .... I. not 

d;"""RllflOkIty. 100 "3"ncr hoI 

concludo<l Ih" .ho V.lun"'l)' G"ld.lln .. b ••• nOl proved 10 bo .ilhot 

on eflOClI"" ""hid. for p"",ldloS 

Buld.""" .!>oul how 10 conductlh. 

.",,1,... Wq"lrod by MClinn so- l.1?{bH31 Of.n .ffec1t ... In«nUWI f., 

conI"", ... 10 conduct 11>0 . nolyoi. in 

,ho mo ..... deocrIbod In ,he VoIun'ot)' 

Cold.lI ..... In ,he aboonco or ,he Volunlot)' 

Cul(\&I1 ..... r:ctIlroctoro will "III bo 

obllp'ed 10 conduct .. If ..... I'''"''''. 01 oom_ .. llot! proc'''''''''' ""Iulrod by 

U Gl'R OO-l.1?(bllJ). mu:r .. Ill 

r:ctIllnue '0 provldo any.,,",,", 

""mpll.nco ....... "0. on ooction 00-
75 

rod .'al R"8i>1erIVol. 76, No. IIMonday, January 3. 201liProp<>oe<1 Rul ... 

2.11{b!lll,h""'llh .. riou. meon •• lndudl"ll wollioan ,Dd tho Web ,110 

dl"ribo,lon of I'fooquo"'ly A,kod 

Ques~.n ... ,pproprlato, ""00 ,h.n Ihroush tho wuon"" 01, Fed.,,1 

R"""I..- -!co. OtttP In>it ... nylnt_tod ""ny '0 commonl on lito p",~1 10rMCinJ Ih. 

SIOn<Wd .. "d Ih, Volu"'ory Guldell .... 

M<Id& A. Sk i •. 

_·O!P<-ofFodrroJC-' ..... <#npl .. _ ............ 

1,""""10'0.>.100'''''''''-',""'''_1 

-"""""-

DEP"' RT"'E~ OF TRANSPORTATION 

.9 CFR PI n 228 

(00<"" ..... f"" __ ~1 

• """"",e .. Soll l)"od tMa~ equ~"",",,11 

Rol,ted t. Comp Cot. 

'G!IiCl': Fed.nl Roil .... d 

"'d",lnl>."tlon (FRA). Dopan,""nt of 

T"n'f'O'\oHon (OOTI. 

' C1IOI!: Noll"" olpmpooed rulomakl"ll 

INPRM). 

$UlIMI"V: To corry out • woe ~.lo ... 1 ",lom.~I"lI ..... <1 .... 

FRA I. P"'l""'lng to aMlO "'8UI.tlON ~bln! mln;,"um .. r..ty • • d !>wllh 

requ'",mon" rOO' ... mp "'" ,ha' . "11 .... d provld ..... Iooplng qu ........ to . ny oil" ,,,,In ... plo_.fIS .. 1 

""'plo_ •• "d dl."",clIl"l1Mn'loo .... plor-.nd Indlyld""l. ompl~ '0 ... intoln I .. right of woy. Th. propoood 

resul.,lon, w""ld ,ul'I'l.n, .. IOII"8 guldoll""" ,ho, In."'P"" .,.!otl"ll 

.. "utor)' """,1 .. mo"l .. _&<I t\ecadoo ... tli.t. thlt .. ilrood.provlded eomp ctnI 

bod ..... IIr •.• nd .. nitory.and . lIord 

1_ . mplor-I"d Indlyldu.1s In 

opf'O'\uni'y lot"'" f ... from tho InlO<rUptions couood by no"" undot.h<> 

control of ,h. "iltOlld. In lurther ... 

~ 

poltOfl '. tho nll.moldn, m,nd.te, tho 

tOguls'lo'" would lDOludo lb. . ddltl .... 1 ""u' or)' '"'Iul ... mo,,". onactod In 200II. thot Clmp "" ... bo 

p"",ided wl.h ;"d"", loll .... poUobl. wit", . • nd othor I .. M .... o p"" ... lho boalth of .och worke ... . 

U"der "PO"" bu. ",1,,0<1 ""u'ory • utl>orl,y, f1lA 10 pro_I"II to .m."d togulotlono on ,",n"ructlon of ompl."... 

• Ioopi"" qu ........ In ""n\cul ••. FRA p~ tolmplo","n' . 2008 ,,,,ulWy . m..,"_nl Ihat. on ond ,ftor Oooombot 

3t, :roo\I. eomp co ... pro>ldod by. 

railroad Of .\oopln8 qu.nen ""ch .. l •• ly 

for Indl>IduII. omployod '" .... I" .. ln 'ho righ' 01 woy of. "iI"",.j .to wl'hln ,ho ICOpo of ,ho prohibit!"" "ll"ln" bqlnnlng ""n","",lon ot 

""", .. '",<:lIon of "",!Ioyeo ,looping 

qu.>rt ... "lOr ro,l.... ...It<hlng or 

hUlIIpl"ll 01 ", .. rdou, ma.otl,1. .·RA '. .. 1 .. lnlluld.li .... wI,h _po'" to ,ho 

locotl"", In .. lotion , •• wltchlnl or 

hump!", 01 huordOWl m .. ori.l, 01. Clmp cat tba, Is occupied ""clu.IY<'ly by 

l.di.ldu,I, .mpl~ '0 ",.intoln 0 

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76 

From: 

To: 

Date: 

Subject: 

SHARON ALEXANDER 

Burrell, Meredith (CRT); Coukos, Pamela - OFCCP 

111012012 12:04 PM 

Re: Electronic version of Rescission Text 

Thanks. Pam. What's your lime line for final DOL clearance? 

»> Coukos. Pamela - OFCCP" <Coukos.Pamela@doLgov> 119120127:06 PM >>> 

Great seeing you guys today. Attached is an electronic version of the 

document I gave you. As I mentioned this is being shared informally 

with some of our Task Force partners in advance 01 the final DOL 

clearance so please take tare with Ihe draft 

Let me know if you have any questions or want to discuss. 

From: 

To: 

Date: 

Subject: 

"Cookos, Pamela - OFCCP" <Coukos.Pamela@dol.gov> 

SHARON.ALEXANDER@EEOC.GOV 

1/101201212:53 PM 

RE: Electronic version of Rescission Text 

I think it's imminent. 

-Original Message----

From: SHARON ALEXANDER {mailto:SHARON.ALEXANDER@EEOC.GOVj 

Sent: Tuesday , January 10, 2012 12:05 PM 

To: Cookos. Pamela - OFCCP; Meredith (CRT) Burrell 

Subject Re: Electronic version of Rescission Text 

Thanks. Pam. \/\/hat's your time tine for final DOL clearance? 

>>> "Coukos, Pamela - OFCCP" <CoukOS.Pamela@dol.gov> 1/912012 7:06 PM 

»> 

Great seeing you guys today. Attached is an electronic version of the 

document I gave you . As I mentioned Ihis is being shared informally 

with some of our Task Force partners in advance of the final DOL 

clearance so please take care with the draft. 

Let me know if you have any questions or want to discuss. 
77 

From: 

To: 

Date: 

Subject: 

"Coukos, Pamela· OFCCP" <Coukos.Pamela@dol.gov> 

SHARON.ALEXANDER@EEOC.GOV 

1/10120121 :08 PM 

RE: Electronic version of Rescission Text 

Looks like it will be over at OMS in the next couple of days. 

--Original Message····· 

From: SHARON ALEXANDER (mailto:SHARON.ALEXANOER@EEOC.GOV] 

Sent: Tuesday, January 10, 2012 12:05 PM 

To: Coukos, Pamela· OFCCP; Meredith (CRT) Burrell 

Subject: Re: Electronic version of Rescission Text 

Thanks, Pam. 'Mlat's your time line for final DOL clearance? 

>>> "Coukos, Pamela· OFCCP" <Coukos.Pamela@dol.gov> 1/912012 7:06 PM 

>>> 

Great seeing you guys today. Attached is an electronic version of the 

document 1 gave you. As I mentioned this is being shared informally 

with some of our Task Force partners in advance of the final DOL 

clearance so please take care with the draft. 

Let me know if you have any questions or want to discuss. 
78 

[Whereupon, at 11:10 a.m., the subcommittee was adjourned.] 

Æ