I 

115TH CONGRESS 

1ST SESSION H. R. 1646 

To amend title VII of the Civil Rights Act of 1964 to exclude the application 

of such title to employment practices that are in compliance with Federal 

regulations, and State laws, in certain areas. 

IN THE HOUSE OF REPRESENTATIVES 

MARCH 21, 2017 

Mr. WALBERG (for himself, Mr. BYRNE, Mr. HUDSON, and Mr. ROKITA) introduced the following bill; which was referred to the Committee on Education and the Workforce 

A BILL 

To amend title VII of the Civil Rights Act of 1964 to 

exclude the application of such title to employment practices that are in compliance with Federal regulations, 

and State laws, in certain areas. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Certainty in Enforce5 ment Act of 2017’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 


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1 (1) The Equal Employment Opportunity Com2 mission (EEOC) is one of several agencies respon3 sible for enforcing Federal laws against employment 

4 discrimination, but there are growing concerns about 

5 the enforcement and policy approach adopted by the 

6 EEOC, raising questions about whether the best in7 terests of workers and employers are being served. 

8 (2) In 1964 Congress consciously denied the 

9 EEOC the power to issue regulations pursuant to 

10 title VII of the Civil Rights Act of 1964 and has re11 frained from granting it that power ever since. Nev12 ertheless, like any other agency charged with en13 forcement, the EEOC may promulgate guidance 

14 under the statutes it enforces, but that guidance 

15 cannot require more than the statute it is enforcing 

16 requires and does not have the force of law. In some 

17 cases the EEOC’s guidances have been rejected by 

18 the courts. 

19 (3) In 2012 the EEOC promulgated enforce20 ment guidance regarding the use of criminal back21 ground checks that put employers in the position of 

22 acting contrary to Federal, State, and local laws 

23 that require employers to conduct or act on criminal 

24 background checks for certain positions, such as 


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1 public safety officers, teachers, and daycare pro2 viders. 

3 (4) In EEOC v. Peoplemark, Inc., a case chal4 lenging Peoplemark’s use of criminal background 

5 checks in making employment decisions, the Court 

6 of Appeals for the Sixth Circuit in October 2013 af7 firmed an award of $751,942 against the EEOC for 

8 prevailing defendant Peoplemark’s attorney’s and ex9 pert fees. 

10 (5) In EEOC v. Kaplan Higher Education Cor11 poration, a case challenging Kaplan’s use of credit 

12 reports in the hiring process, the Court of Appeals 

13 for the Sixth Circuit affirmed the district court’s de14 cision granting summary judgment in favor of 

15 Kaplan and stated that the EEOC brought a case 

16 on the basis of a ‘‘homemade methodology, crafted 

17 by a witness with no particular expertise to craft it, 

18 administered by persons with no particular expertise 

19 to administer it, tested by no one, and accepted only 

20 by the witness himself’’. 

21 SEC. 3. AMENDMENT. 

22 Section 703 of the Civil Rights Act of 1964 (42 

23 U.S.C. 2000e–2) is amended by adding at the end the fol24 lowing: 


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1 ‘‘(o) Notwithstanding any other provision of this title, 

2 the consideration or use of credit or criminal records or 

3 information, as mandated by Federal, State, or local law, 

4 by an employer, labor organization, employment agency, 

5 or joint labor management committee controlling appren6 ticeships or other training or retraining opportunities, 

7 shall be deemed to be job related and consistent with busi8 ness necessity under subsection (k)(1)(A)(i) as a matter 

9 of law, and such use shall not be the basis of liability 

10 under any theory of disparate impact.’’. 

Æ 


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