Title: Certainty in Enforcement Act of 2017
Policy area: Civil Rights and Liberties, Minority Issues

Summary:
Certainty in Enforcement Act of 2017
This bill amends equal employment opportunity requirements under the Civil Rights Act of 1964 to deem an employer's, labor organization's, employment agency's, or joint labor management committee's consideration or use of credit or criminal records or information, as mandated by federal, state, or local law, to be job related and consistent with business necessity.
The use of credit or criminal records shall not be the basis of liability under any theory of disparate impact. (Currently, an unlawful employment practice based on disparate impact is established if a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.)

[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1646 Introduced in House (IH)]

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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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Certainty in Enforcement Act of 
2017''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) The Equal Employment Opportunity Commission (EEOC) is 
        one of several agencies responsible for enforcing Federal laws 
        against employment discrimination, but there are growing 
        concerns about the enforcement and policy approach adopted by 
        the EEOC, raising questions about whether the best interests of 
        workers and employers are being served.
            (2) In 1964 Congress consciously denied the EEOC the power 
        to issue regulations pursuant to title VII of the Civil Rights 
        Act of 1964 and has refrained from granting it that power ever 
        since. Nevertheless, like any other agency charged with 
        enforcement, the EEOC may promulgate guidance under the 
        statutes it enforces, but that guidance cannot require more 
        than the statute it is enforcing requires and does not have the 
        force of law. In some cases the EEOC's guidances have been 
        rejected by the courts.
            (3) In 2012 the EEOC promulgated enforcement guidance 
        regarding the use of criminal background checks that put 
        employers in the position of acting contrary to Federal, State, 
        and local laws that require employers to conduct or act on 
        criminal background checks for certain positions, such as 
        public safety officers, teachers, and daycare providers.
            (4) In EEOC v. Peoplemark, Inc., a case challenging 
        Peoplemark's use of criminal background checks in making 
        employment decisions, the Court of Appeals for the Sixth 
        Circuit in October 2013 affirmed an award of $751,942 against 
        the EEOC for prevailing defendant Peoplemark's attorney's and 
        expert fees.
            (5) In EEOC v. Kaplan Higher Education Corporation, a case 
        challenging Kaplan's use of credit reports in the hiring 
        process, the Court of Appeals for the Sixth Circuit affirmed 
        the district court's decision granting summary judgment in 
        favor of Kaplan and stated that the EEOC brought a case on the 
        basis of a ``homemade methodology, crafted by a witness with no 
        particular expertise to craft it, administered by persons with 
        no particular expertise to administer it, tested by no one, and 
        accepted only by the witness himself''.

SEC. 3. AMENDMENT.

    Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2) is 
amended by adding at the end the following:
    ``(o) Notwithstanding any other provision of this title, the 
consideration or use of credit or criminal records or information, as 
mandated by Federal, State, or local law, by an employer, labor 
organization, employment agency, or joint labor management committee 
controlling apprenticeships or other training or retraining 
opportunities, shall be deemed to be job related and consistent with 
business necessity under subsection (k)(1)(A)(i) as a matter of law, 
and such use shall not be the basis of liability under any theory of 
disparate impact.''.
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