EEOC October 9, 2014 Letter for Hearing Record

October 9, 2014

The Honorable Tim Walberg
Chairman
Subcommittee on Workforce Protections
Committee on Education and the Workforce
U.S. House of Representatives
Washington, DC 20515

Dear Chairman Walberg:

Please accept this statement for the record from the Equal Employment Opportunity Commission (EEOC) in response to the September 17, 2014, hearing to consider H.R. 4959, "EEOC Transparency and Accountability Act," H.R. 5422, "Litigation Oversight Act of 2014," and H.R. 5423, "Certainty in Enforcement Act of 2014," and concerns raised during the hearing about the agency's enforcement and regulatory priorities. The EEOC has significant reservations about the proposed legislation discussed at the hearing and believes that the public record would benefit from additional information.

As you know, the EEOC is responsible for enforcing Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Equal Pay Act of 1963, the Americans with Disabilities Act of 1990, Section 501 of the Rehabilitation Act of 1973, the Civil Rights Act of 1991, and the Genetic Information Nondiscrimination Act of 2008. Vested with this responsibility, the Commission is dedicated to achieving our national vision of justice and equality in the workplace by preventing, stopping, and remedying unlawful employment discrimination.

As noted at the hearing, the Commission has made great strides over the years toward eradicating discrimination in the workplace. However, on the eve of its 50th anniversary, it is important to note that the Commission's work is far from complete. The EEOC strives to achieve its mission through public outreach and education, development and implementation of regulations and policy guidance, public meetings, mediation, investigation, and conciliation. When these steps are not successful, litigation is the enforcement step of last resort. This is demonstrated by EEOC's own data. Over the past two years, the EEOC has resolved a greater percentage of cause cases without litigation than any time in recent history. In contrast, the EEOC only litigates less than 5% of cause cases.

The EEOC takes the concerns of Congress seriously and has worked with our partners in the House and Senate to address their questions about EEOC operations and policy. However, we have significant concerns about the legislation discussed at the Subcommittee hearing.  The legislation would draw already stretched Commission resources away from investigating and resolving charges of discrimination and would undermine our ability to enforce the Nation's laws prohibiting employment discrimination.  Additionally, as is supported by the data, we are committed to our statutory obligation to conciliate and are concerned that the proposed legislation may actually hinder efforts to settle cases and avoid litigation, and instead would likely impose additional administrative costs on the agency and result in litigation over the EEOC's pre-suit activities. Our specific concerns are set forth below.

H.R. 4959, "EEOC Transparency and Accountability Act"

A. Section 2. Availability of Information About Cases on the EEOC Website

1. Section 2(a)(1) - All Civil Actions

This provision requires the EEOC to post information on its public website regarding all EEOC-initiated cases in which a judgment has been made on any cause of action in the case, without regard to whether the judgment is final. Specifically, it requires that the following information be included in the posting: (1) the court in which the case was brought; (2) the name and case number of the case, nature of the allegation, causes of action, and the outcome of each cause of action; (3) whether the EEOC was ordered to pay fees and costs and the amount paid; (4) whether the case was authorized by the Commission or brought pursuant to the authority delegated to the General Counsel, including the reason the General Counsel believed submission to the Commission for authorization was not necessary; (5) whether a sanction was imposed on the EEOC, including the amount of the sanction and the reason for the sanction; and (6) any appeal and the outcome of the appeal.

Section 2(a)(1) appears to target what Representatives Walberg and Hudson believe is "EEOC overreach." The bill asserts that this section, as well as other parts of HR 4959, will "help ensure the EEOC pursues worthwhile cases in good faith to prevent actual discrimination rather than abusing its powers of litigation in search of a problem."

This provision would require the EEOC to engage in duplicative and confusing public postings. First, the bill would require EEOC to post whenever "a judgment is made with respect to any cause of action in the case, without regard to whether the judgment is final." In practice, this means that in a case with multiple causes of action, EEOC would have to post on its website if one cause of action ends (whether through dismissal or settlement of the claim), while the rest of the case proceeds. The posting requirement applies to court orders regarding fees, costs, and sanctions. Such information could be interpreted by members of the public to mean that the case is resolved -- or that fees, costs, or sanctions have been imposed -- when the case is still pending and such decisions are not final. Thus, it would lead to confusion about the status of our cases and potentially lead to the dissemination of misinformation and inaccurate information by members of the public who utilize our site. The bill's posting requirement means that EEOC will likely have to post information about the same case multiple times (the bill's posting requirement does not apply only when EEOC is ordered to pay fees or costs, or when a sanction is imposed, but also when EEOC prevails).

Second, much of the information listed in Section 2(a)(1) of this bill is already provided on the EEOC website. For all cases filed, EEOC issues a press release announcing the filing of the case that includes the court, the name and case number, the nature of the allegations, and the causes of action. The EEOC also currently issues a press release when litigation ends for most cases.

Third, we fail to see the public value in listing on the website whether a case was authorized by the Commission or pursuant to the authority delegated to the General Counsel. The 2013-2016 Strategic Enforcement Plan (SEP) lays out the delegation criteria and this document is readily available to the public. Indeed, the bill's requirement that the General Counsel publicly justify why a case was not submitted to the Commission is contrary to the delegation provided for in the SEP.

In conclusion, we believe Sec. 2(a)(1) will impose an undue burden on EEOC, confuse the public, and possibly impede EEOC litigation activities, thereby adversely affecting EEOC's core enforcement functions.

2. Sec. 2(a)(2) - Commissioner Charges

Under this section, EEOC would be required to post on its public website the total number of Commissioner charges filed during the preceding fiscal year. The EEOC also would be required to post the "total number of resolutions of such charges disaggregated by type of resolution." "Disaggregation" means that, of the total number of Commissioner charges filed in the preceding fiscal year, EEOC must post the number of Commissioner charges filed in each State, and within each State, the number of charges that allege discrimination based on race, sex, national origin, religion, color, age, disability, or retaliation, or that allege a violation of the Equal Pay Act. See Sec. 2(b).

The bill does not define what constitutes a resolution. Posting information about Commissioner charges that are resolved short of litigation may prove problematic from a confidentiality standpoint. Title VII (and by incorporation the ADA and GINA) prohibits EEOC from making public any information about a charge unless and until it is the subject of a civil action. Posting the number of administrative resolutions by state, including the basis or bases of discrimination alleged, could easily make public the charge itself. In any given fiscal year, in many states no more than one Commissioner charge (if any) will be investigated and resolved. If, for example, EEOC posts that a Commissioner charge based on sex and disability was filed in Wyoming and resulted in a settlement favorable to the Commission, this information may be all that is needed to identify the employees and employer involved and breach the confidentiality provisions of Title VII. In contrast, the current practice of disclosing only the total number of Commissioner charges filed nationwide in a given fiscal year does not raise any confidentiality issues.

3. Sec. 2(a)(3) - Directed Investigations

EEOC would be required to post on its public website the total number of charges filed during the preceding fiscal year resulting from EEOC's use of its "directed investigation authority" under § 7(a) of the ADEA and § 11(a) of the Equal Pay Act. As with Commissioner charges, EEOC would have to also post "the total number of resolutions of such charges disaggregated by type of resolution." It is important to note that EEOC's charge inventory contains only a relatively small number of "directed investigation" charges in a particular fiscal year. This raises privacy concerns similar to those concerning Commissioner charges.

4. Sec. 2(a)(4) - Systemic Civil Actions

Sec. 2(a)(4) requires the posting of information regarding systemic cases filed under section 706 or 707 of Title VII. Much of this information is already provided in the press releases EEOC issues when a suit is filed. Thus, a separate such posting for systemic cases would be duplicative. Additionally, because this legislation focuses on Title VII cases only, such information could be misleading to the public since it implies that systemic cases only arise under one of the statutes we enforce.

B. Section 3. Good Faith Conference, Conciliation, and Persuasion

Title VII requires the Commission to attempt to resolve cause charges through conciliation. This provision would amend the statute to mandate "good faith efforts to endeavor" to resolve [cause] charges by "bona fide conciliation." In doing so, it would - at least in part - reverse the Commission's victory in the Seventh Circuit in EEOC v. Mach Mining, which is pending before the Supreme Court.

HR 4959 would amend § 706(b) of Title VII as follows (added language in bold, deleted language in strike through):

If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall use good faith efforts to endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, bona fide conciliation, and persuasion. Nothing said or done during and as a part of such informal good faith endeavors may be made public by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned employer, employment agency, or labor organization, except for the sole purpose of allowing a party to any pending litigation to present to the reviewing court evidence to ensure the Commission's compliance with its obligations under this section prior to filing suit. No action or suit may be brought by the Commission under this title unless the Commission has in good faith exhausted its conciliation obligations as set forth in this subsection. No action or suit shall be brought by the Commission unless it has certified that conciliation is at impasse. The determination as to whether the Commission engaged in bone (sic) fide conciliation efforts shall be subject to judicial review. The Commission's good faith obligation to engage in bona fide conciliation shall include providing the employer, employment agency, or labor organization believed to have engaged in an unlawful employment practice with all information regarding the legal and factual bases for the Commission's determination that reasonable causes (sic) exist as well as all information that supports the Commission's requested monetary and other relief (including a detailed description of the specific individuals or employees comprising the class of persons for whom the is seeking relief and any additional information requested that is reasonably related to the underlying cause determination or necessary to conciliate in good faith).

The EEOC has serious concerns about these provisions. The EEOC engages in good faith efforts when it attempts to conciliate a charge. Indeed, the General Counsel reviews the conciliation efforts before approving or recommending litigation and, where appropriate, has sent cases back for further conciliation. Protracted litigation is not something EEOC desires; rather, it seeks timely relief for the charging party. If EEOC can obtain this relief through conciliation, it endeavors to do so. These provisions would affect the EEOC's ability to process and resolve charges. They impose "good faith" and "bona fide" standards on EEOC's attempts to resolve cases through conciliation, without defining those phrases, thereby holding EEOC staff to unspecified but assumedly demanding standards. This will needlessly formalize a process that Congress meant to be "informal" and thus quick and effective for the parties. Instead, these requirements will frustrate and block efforts to resolve charges efficiently, effectively, and inexpensively through the informal conciliation process.

The requirement that staff collect and provide respondents with all information relating to the reasons for cause determinations would consume significant EEOC resources, as would identifying every individual in a class. The process of conciliation would undoubtedly be prolonged. Conciliation itself would become ineffective because anything said in conciliation could be entered in court and become part of the public record. Frank discussions during conciliation would be chilled as a result, potentially increasing the likelihood that conciliation would fail. Furthermore, the requirement that EEOC provide information to the respondent, but not the charging party, regarding the legal and factual bases for its cause determination and request for relief is on its face unfair to the charging party. Finally, the type of information EEOC will be required to provide is protected, privileged information that would not otherwise be available by law in response to civil discovery or a FOIA request. The reasons for finding cause and asking for certain relief necessarily include confidential, deliberative information and may include attorney work product. It is settled law that such information does not have to be disclosed to the public, opposing counsel, a charging party, or a respondent. This provision will turn that law on its head, by increasing litigation, not due to the merits of whether discrimination occurred, but due to the contours of the new statutory language.

This provision also would invest courts with subject matter jurisdiction over the question of whether EEOC engaged in bona fide conciliation efforts, thereby encouraging both dissatisfied charging parties and respondents to countersue EEOC whenever it files enforcement actions.

While encouraging such litigation, the bill fails to specify what relief will be available to a prevailing party under this provision. Will a court order EEOC to engage in further conciliation? And, if conciliation fails a second time, can the same party sue again? Or will a court dismiss the charge, or order relief for the charging party? We cannot imagine that the district courts will welcome the open-ended civil actions this provision encourages.

Judicial review of conciliation could also tie up an enormous amount of investigative staff resources. The time and effort required to show that enforcement staff had conducted bona fide conciliations in good faith would divert EEOC's limited staff resources from the intake of charges, and from investigating and resolving them. Investigators who conducted or participated in conciliation would be subject to subpoena and required to testify in court as to the nature of conciliation and the intent of themselves and others in seeking resolution of charges in conciliation. Such testimony could result in imprudent use of resources as well as intrusive inquiries regarding the inner workings of conciliation efforts.

The implications of H.R. 4959 go further. This provision not only pertains to conciliation of the cases filed in court, which number 100 to 200 per year, but also to every case that progresses through the conciliation process. Which cases will remain unresolved and which will be litigated is unknown at the time of conciliation. Staff would need to be prepared to show that all conciliations met the undefined standards in the Act.

EEOC conducts literally thousands of conciliations each year. In FY 2013, for example, staff conducted more than 3,500 conciliations: 1,437 were successfully resolved and 2,078 were not resolved. For staff to provide all information on the bases for cause decisions in all conciliations conducted each year would stymie efforts to process the nearly 100,000 charges filed with EEOC each year. Most importantly, H.R. 4959 would not only siphon off staff time and effort from investigating and resolving cases but would also drain resources away from the Commission's strategic enforcement priorities, which are essential to determining where the EEOC's limited resources should be channeled. This provision could easily increase EEOC's investigative and litigation responsibilities to the point where the agency would be overwhelmed.

The number of conciliations conducted in FY 2012 and FY 2013 is shown below:

Staff would be required to lay the groundwork to defend each and every one of these conciliations and demonstrate that they were conducted in good faith and were bona fide. The bill's requirements for formalizing and documenting each step of the conciliation process can only translate into significant administrative delays and barriers to the 1,500 successful conciliations the EEOC achieves each year. These new requirements are likely to result in a reduction in the number of successful conciliations. The end result will be fewer individuals receiving a remedy for the discrimination they have suffered, and fewer employers able to reach a prompt and private resolution of the violation found by the government. Cases will be prolonged needlessly in the administrative process. This is not what Congress intended by requiring that the EEOC informally endeavor to conciliate discrimination charges and use litigation as a last resort.

C. Sec. 4. Reporting to Congress when EEOC is Ordered to Pay Fees and Costs or Sanctions

1. Section 4(a) - Report by the IG

Section 4(a) requires the EEOC Inspector General to submit a report to certain committees of the House and Senate on court orders regarding fees, costs, and sanctions and to conduct an investigation to determine why such fees, costs, or sanctions were imposed. The IG is obligated by the Act to interview and obtain affidavits from "each member and staff person . . . involved in the case." Other provisions concern the Commission or the IG reporting to Congress on the investigation, on each case in which sanctions were imposed, and on the steps being taken to reduce the imposition of sanctions.

First, the focus on cases involving fees, costs, or sanctions suggests that these instances are numerous and unwieldy. The agency's record shows otherwise. Representative Kline, in championing this bill, notes that "courts have levied large sanctions against the EEOC for bringing lawsuits that were frivolous, unreasonable, or groundless." Cases in which courts have imposed in fact represent less than 1% of EEOC's ongoing litigation activity. They do not represent a pattern or practice of malfeasance by EEOC, and especially do not justify the suffocating oversight of EEOC's enforcement activities that would be imposed by HR 4959. Two or three cases questioned by the courts do not create a crisis situation or justify the exceptionally close scrutiny contained in HR 4959. The investigation of cases where sanctions were imposed would constitute another diversion of sparse staff resources from investigating and processing charges to responding to IG inquiries of each person involved in the case.

Second, the court order, which is a publicly available document, provides the court's reason for imposing fees, costs or sanctions. Indeed, the filings by both the EEOC and the defendant provide the views of both parties and those documents are part of the public record. Third, parts of this provision appear to intrude on the EEOC's government deliberative process privilege, specifically Section 4(a)(2)(A) and (D).

2. Section 4(b)

Section 4(b) requires that, for each case where fees, costs, or sanctions are imposed by the court, a report must be submitted to certain committees of the House and Senate detailing the steps being taken to reduce instances in which the court orders fees and costs or imposes sanctions, and requires that the report be posted to the website. Again, we fail to see how this information will assist either Congress or the general public in better understanding or monitoring the EEOC. Such information would lead to confusion since those orders may not yet reflect the final outcome of the case and OGC typically appeals such orders and is frequently successful in those appeals.

CONCLUSION

The bill appears to rely on misunderstandings about our operations and our statutory authority. The rationale for the bill - that EEOC "has operated in the shadows for far too long" - is not grounded in fact. The EEOC publishes a significant amount of operational information. Every case EEOC litigates is a matter of public record and therefore is subject to public and Congressional inspection and review.

Details concerning EEOC's pre-suit activities, such as charge processing and conciliation efforts, are not disclosed because Title VII requires that these activities not be made public. Discussions that lead to a decision to litigate a particular charge are confidential because they are protected by universally recognized privileges that protect the deliberative process, attorney-client consultations, and attorney work product. The existence and use of long-standing confidentiality provisions does not equate to "operating in the shadows."

In general, this bill appears to place draconian and duplicative reporting burdens on the agency that are more likely than not to lead to confusion about the status of matters in litigation and divert the EEOC's resources away from its mission to stop and remedy unlawful employment discrimination.

H.R. 5422, "Litigation Oversight Act of 2014"

As part of its Strategic Enforcement Plan for 2013-16, the Commission revisited the issue of delegation and, with a few modifications, reaffirmed the delegation set forth in the 1996 National Enforcement Plan. This bill would overrule this bipartisan decision and amend Title VII by adding a new subsection (1) at the end of § 705 of Title VII, 42 Section § 2000e-4. Subsection (l)(1) provides that, before EEOC can commence or intervene in litigation involving "multiple plaintiffs," or litigation involving allegations of "systemic discrimination or a pattern or practice of discrimination," a majority vote by the Commissioners must approve the litigation or intervention. Subsection (l)(2) authorizes any Commissioner "to require the Commission to approve or disapprove by majority vote whether the Commission shall commence or intervene in any litigation" (emphasis supplied). The authority vested in each Commissioner by subsections (l)(1) and (l)(2) cannot be delegated by the Commission or a Commissioner "to any other person." See § (l)(3).

Finally, within 30 days of the commencement of, or intervention in, litigation contemplated by subsection (1), EEOC must post on its public website the following: 1) the court in which the case was brought; 2) case name and number; 3) "[t]he nature of the allegation;" 4) [t]he causes of action brought;" and 5) "[e]ach Commissioner's vote on commencing or intervening in the litigation."

Impact on EEOC Operations

Under the current Commission-approved delegation of authority to the General Counsel, certain litigation and interventions require a majority of the Commissioners to pre-approve. This bill will adversely affect the Commission's ability to delegate litigation authority to the General Counsel (GC). This measure prohibits the Commission from delegating to the GC litigation and intervention authority regarding multiple-plaintiff, systemic, and pattern or practice cases. Thus, any delegation that currently exists involving these cases will become null and void.

In addition, while the bill does not expressly prohibit the Commission from delegating litigation authority to the GC with respect to other types of cases, it allows any Commissioner to call for a Commission vote with respect to these cases. As a practical matter, this means that any delegation to the GC can be revoked by any Commissioner on a case-by-case basis.

Although the Commission delegates litigation authority to the GC by majority vote, subsection (1)(2) vests each Commissioner with veto authority, and as such, the majority's delegation can be nullified by any Commissioner, at any time, regarding any case. The impact of this provision would reverse longstanding and bipartisan efforts to streamline the litigation process at the EEOC and make decisions about the allocation of scarce enforcement resources more predictable. Delegation has been critical to freeing up the Commissioners to perform their critical policy-making function.

This legislation would reinstate a process the Commission has found to be inherently inefficient. If used sufficiently often, this veto authority will effectively eliminate delegation and deter the agency's litigation program.

A. Flawed basis for the legislation

As noted by the witnesses in the hearing, the delegation of the commencement of litigation to the Presidentially-appointed, Senate-confirmed General Counsel was adopted unanimously in 1996 as part of the National Enforcement Plan. In the EEOC's SEP approved in December 2012, the Commission reaffirmed the existing delegation of litigation authority to the General Counsel and also moved toward greater interaction with the litigation program. The Commission currently delegates to the General Counsel the decision to commence or intervene in litigation in all cases except the following:

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

Also, a minimum of one litigation recommendation from each EEOC District Office shall be presented for Commission consideration each fiscal year, including litigation recommendations based on the above criteria.

Eric Drieband, a former EEOC General Counsel and a witness at the hearing, suggested that more cases had been sent to the Commission for approval in the past and sending more cases to the Commission for approval in the future would not prove burdensome. However, his testimony was based on critical factual errors and flawed reasoning:

• Nearly every case cited by Mr. Dreiband to support his argument that the Commission should vote on more cases was actually approved for filing by a vote of the full Commission, including: Peoplemark, Kaplan, Freeman, Catastrophe Management, Sterling, Bass Pro, and Dillard's.
• Several of the cases Mr. Dreiband cites in support of the need for more Commission oversight were resolved by a consent decree favorable to EEOC (American Samoa Government, Honeybaked Ham); some are currently on appeal (Geo, Swissport); one was dismissed but is currently under review by the EEOC for appeal (Womble); and one was vacated, overruled and has a red flag on Westlaw (Bass Pro). Thus, the outcomes in these cases have no relation to his argument that more Commission oversight in determining whether litigation should be commenced is needed.
• Mr. Dreiband's own conduct as General Counsel provides no support for the argument that more cases should be submitted to the Commission for authorization. Although Mr. Dreiband submitted a large raw number of cases to the Commission for a vote during his tenure, the vast majority were not class or systemic cases. Rather, most of them were individual ADA cases which, during Mr. Dreiband's tenure, required a Commission vote. In fact:
  • Of the 122 cases Mr. Dreiband submitted to the Commission from August 2003 to 2005, only 19 (or 5.5% ) involved multiple victims; the other 103 were individual ADA cases.
  • In FY 2004, Mr. Dreiband submitted only 6 of 147 filed multi-victim cases for a Commission vote (or approximately 4 % of the cases).
  • In FY 2005, Mr. Dreiband submitted only 12 of 136 multi-victim cases for a Commission vote (or nearly 9% of the cases).
  • There is no meaningful difference in the outcomes of the cases submitted to the Commission under Mr. Dreiband than those delegated to the field. Commission approved cases included those having significant impact on scope of the law (e.g Sidley Austin) and included those resulting in significant adverse decisions (e.g. Agro).
• The EEOC recovers significant monetary benefits for victims of discrimination through conciliation, and these benefits have increased significantly since Mr. Dreiband was General Counsel. For example, in FY2004 when Dreiband was General Counsel, the EEOC obtained $251 million in monetary benefits through conciliation compared to $372 million obtained in conciliation in FY2013.

Finally, it should be noted that, while he was General Counsel, Mr. Dreiband operated under the delegation rules regarding class and systemic cases that were similar to the current delegation -- not under the rules he is now suggesting should become law. In fact, in FY2013, the Commission approved 15 cases or approximately 11% of the 131 cases filed. Thirteen of the 15 cases approved by the Commission were systemic or multi-victim cases.

HR 5423, "Certainty in Enforcement Act of 2014"

This bill amends Section 703 of the Civil Rights Act of 1964 to provide that "it shall not be an unlawful employment practice" under Title VII to comply with a Federal, State, or local law "in an area such as, but not limited to, health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties. " Bill, Sec. 3. This language effectively repeals Title VII's conflict-with-state-law provision in Section 708 (section 2000e-7) by providing that practices compliant with such state or local laws cannot be unlawful employment practices subject to Title VII.

A. Scope of Legislation

This bill responds to the Commission's 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, 42 U.S.C. § 2000e (Guidance). Although the bill's introductory Findings focus on criminal background checks, the legislative language itself is applicable to all employment practices. For example, were this legislation to become effective, a locality could pass a law excluding Muslims from certain jobs, and employers complying with the local law would be exempted from Title VII liability. This is analogous to the Congress inviting states and localities to adopt voter literacy requirements or poll taxes, with the federal assurance that they would be shielded from all exposure under the Voting Rights Act. The broad scope of this bill cannot be overstated.

B. Findings

Finding 3 is incorrect. It states: "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 criminal background checks for certain positions, such as public safety officers, teachers, and daycare providers." The 2012 Guidance is based on the premise that employers do criminal background checks for legitimate reasons and can best manage the risk of crime in the workplace by screening applicants or employees in a targeted and fact-based way that is not discriminatory.

• Federal Laws Provide an Employer Defense: The EEOC's 2012 Guidance states: "Title VII does not preempt … federally imposed restrictions" and that "[i]n some industries, 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. Compliance with federal laws and/or regulations is a defense to a charge of discrimination. Nothing in the Guidance prohibits background checks.
• State and Local Laws Apply to Employers Unless The Laws Discriminate: Congress stated in Title VII that: "this subchapter does not exempt or relieve any person from" their responsibilities under state or local law. 42 U.S.C. 2000e-7. The only exception is state or local laws that "purport to require or permit the doing of any act which would be unlawful" under Title VII. Id. As long as states and localities enact laws that are not discriminatory, then Title VII expects compliance with them. Indeed, Example 11 in the Guidance concerns a nondiscriminatory exclusion from a childcare position of an applicant who pled guilty to an indecent exposure charge two years ago. Findings (4) and (5) incorrectly reference Peoplemark and Kaplan. They imply that the courts in these cases sanctioned or ruled against the Commission because the employers complied with state law. Compliance with state laws was not at issue in either the Kaplan or Peoplemark cases.

• In Peoplemark, because the EEOC was not able to present statistical evidence of disparate impact through an expert, the EEOC decided to voluntarily dismiss its suit. Peoplemark agreed to a Joint Stipulation of Dismissal with Prejudice, which designated Peoplemark as the prevailing party with respect to any entitlement to costs or attorney's fees.

  In Kaplan, the district court dismissed the Commission's case after concluding that the EEOC's efforts to identify the race of the relevant applicants were legally deficient and the Sixth Circuit affirmed this evidentiary ruling.

C. Flawed Basis for This Legislation

This bill responds to the Commission's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions and seems to be based on fundamental misunderstandings and mischaracterizations. On April 25, 2012, the Commission, in a 4-1 bi-partisan vote, approved and issued the Guidance. It is firmly rooted in Title VII, is not a radical change in policy, and is not itself binding. Instead, it provides the EEOC's interpretation of Title VII's prohibition on neutral policies that have a disparate impact on protected classes as applied to an employer's use of arrest and conviction records. It sets forth the basic premise that employers can best manage the risk of workplace crime by screening employees and applicants in a targeted and fact-based way that is not discriminatory. Indeed, a recent survey revealed that the vast majority of employers polled reported that they have adopted the principles set out in the Guidance.

Since at least 1969, the Commission has received, investigated, and resolved discrimination charges involving criminal records exclusions. The federal courts have analyzed Title VII as applied to criminal record exclusions since the 1970s. In 1987, when Justice Clarence Thomas was EEOC Chair, the Commission first issued guidance saying that criminal background checks, like other hiring requirements that exclude people, should relate to the job. Following already-established court precedent, this 1987 guidance listed three factors that employers should consider during the screening process: the nature of the offense, when it occurred and the nature of the job. The EEOC did not stretch the law in 1987; it simply followed the law and continued to do so in its 2012 Guidance.

The EEOC drafted the 2012 Guidance in part because a federal circuit court of appeals ruling in a Title VII criminal background check case called for the EEOC to analyze the Title VII implications of criminal background checks in more detail. In El v. Southeastern Pennsylvania Transp. Authority, 479 F.3d 232 (3d Cir. 2007), the Third Circuit commented that the Commission's 1987 guidance was short and rudimentary, and that the courts would benefit from the agency providing more in-depth legal analysis of Title VII statutory analysis and criminal background exclusions.

The 2012 Guidance also reflects the Commission's consideration of considerable public input. In both November 2008 and July 2011, the Commission held public meetings on the use of criminal history information in employment decisions at which witnesses representing employers, individuals with criminal records, and other federal agencies testified. After the 2011 hearing, the Commission received and reviewed approximately 300 written comments from stakeholders. Prominent organizational commenters included the NAACP, the U.S. Chamber of Commerce, the Society for Human Resources Management, the Leadership Conference on Civil and Human Rights, the American Insurance Association, the Retail Industry Leaders Association, the Public Defender Service for the District of Columbia, the National Association of Professional Background Screeners, and the D.C. Prisoners' Project. Throughout the process of drafting the Guidance, individual Commissioners and staff met with representatives from various stakeholder groups to obtain more focused feedback on discrete and complex issues such as the U.S. Chamber of Commerce, SHRM, HR Policy Association, College and University Professional Association for Human Resources, the National Employment Law Project, the Lawyers' Committee for Civil Rights Under Law, and the Equal Employment Advisory Council. The Commission also considered written comments from individuals, including Ms. Lucia Bone, who testified at this Committee's June 10, 2014 hearing about her sister's tragic murder and the need for criminal background checks for in-home service workers. To be sure, the Guidance does not foreclose employers from performing criminal background checks; rather, the Guidance clarifies how such background checks can be performed in compliance with the law.

The EEOC has continued to interact with its stakeholders since issuance of 2012 Guidance. EEOC staff around the country participated in conferences and public events to explain the Guidance: the agency reached over 80,000 people nationwide through over 900 outreach events since 2012. A report on these outreach events is included here in Appendix A. The EEOC also issued several short, plain-language documents that clearly summarize the Guidance for employees, job applicants, employers and counsel:

• The Guidance itself begins with a bulleted Summary that is 1.5 pages long and explains the main points in the Guidance.
• Questions and Answers were issued the same day as the Guidance, in April 2012. See http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm
• A plain language, "What You Should Know" about the Guidance was issued shortly after the main document. See http://www.eeoc.gov/eeoc/newsroom/wysk/arrest_conviction_records.cfm

Finally, the EEOC contributed to plain-language materials called "Reentry MythBusters," including one on the Title VII implications of using arrest and conviction records in employment, through its membership in the federal Interagency Reentry Council, organized by the Attorney General.

In the last year, an increasing number of businesses have explicitly adopted the principles laid out in the Guidance, demonstrating their acceptance of it. According to a recent survey of 600 employers (provided as Appendix B), a year ago just 32 percent of respondents said they had adopted the principles contained in the 2012 EEOC Guidance. This year, 88 percent report they have done so. Moreover, 64 percent of the surveyed companies report that they perform individualized assessments for candidates who have conviction records, as recommended by the guidance. Finally, in the wake of the issuance of the updated Guidance, several companies and jurisdictions have adopted so-called "ban-the-box" policies, delaying the consideration of criminal records until later in the employment process, a policy recommended by the EEOC guidance.

Conclusion

We appreciate the opportunity to comment on our efforts to promote equal employment opportunity and to provide additional information on the EEOC's enforcement and regulatory priorities for the hearing record. We look forward to continuing to work with Congress to ensure the nation's workplaces are free of discrimination.

Sincerely,

/S/

Todd A. Cox, Director
Office of Communications
and Legislative Affairs

cc: The Honorable Joe Courtney
Ranking Member