Congress asks is the EEOC doing a good job or is it time to change the focus?

By Joy Waltemath

By Pamela Wolf, J.D.

On May 23, the House Education and the Workforce Subcommittee on Workforce Protections held a hearing to discuss what the subcommittee majority sees as the need for more responsible regulatory and enforcement policies at the EEOC. As part of the subcommittee’s ongoing oversight efforts, members reviewed the agency’s “overreach in recent years and highlighted opportunities to change course under new leadership,” according to a press release. But at least one witness at the hearing disagreed with that assessment, commending the EEOC on its critical role in identifying and eliminating discrimination, including through its systemic enforcement and litigation program.

At the hearing, subcommittee Chairman Bradley Byrne (R-Ala.) expressed concern over what he called “the EEOC’s flawed enforcement efforts under the Obama administration,” saying, “At the end of 2016, the EEOC had more than 73,000 unresolved cases. Thousands of individuals were still waiting for answers on the discrimination charges they filed. This is completely unacceptable. These are men and women who turned to the federal government for help and got lost in an inefficient bureaucracy.”

Class-based claims. One witness disagreed with the EEOC’s focus on class or systemic claims. “The agency’s self-imposed pressure to ‘fish’ for large, class-based claims has undermined the quality and effectiveness of its overall enforcement efforts and has distracted from ensuring that litigation remains an option of last resort,” said Rae Vann, vice president and general counsel for the Equal Employment Advisory Council, a nationwide association of employers.

Vann described the EEOC’s strategy as one based on “the assumption that widespread workplace discrimination is present in every district and region—and at every company—across the country.” She added, “Rather than focusing on increasing its systemic litigation docket, the EEOC should do more on the front end to ensure that all discrimination charges it receives are properly categorized, investigated, and resolved.”

On the other hand, Todd A. Cox, Director of Policy, NAACP Legal Defense and Educational Fund, Inc., underscored the importance of class claims. “Our country cannot hope to rid the workplace of employment discrimination on an individual case-by-case basis,” he said, discussing the EEOC’s systemic enforcement and litigation program. “Moreover, many of these cases would never be prosecuted by the private bar or civil rights organizations with limited resources, especially when the discrimination is occurring in underserved communities or the likelihood of obtaining significant monetary relief is minimal. An emphasis on systemic enforcement makes perfect sense strategically because it allows the EEOC to address and remedy workplace discrimination on a large scale.

“EEO-1 Report revision. The hearing also targeted what some characterized as the EEOC’s misguided regulatory actions, particularly the consequences of the EEOC’s expansive changes to the Employer Information Report EEO-1. The changes increased by 26 times (from 128 data points to 3,360 data points) the amount of employee information employers are required to file, according to the subcommittee.

Lisa Ponder, vice president and global human resources director for MWH Constructors, Inc., who spoke on behalf of the Society of Human Resource Management, questioned whether the EEOC can even use the information to identify pay discrimination in the real world. “The number of women engineers in the baby boomer generation is approximately 5 percent in our industry, so we have very few senior women engineers,” she explained. “However, the number of women engineers in the millennial generation is closer to 20 percent in our industry, so we have many more junior women engineers. There is no way to show that in reality we pay our senior engineers more than we pay those with much less experience.”

Ponder continued, “There will appear to be a pay differential based on gender when in fact the pay differential is based on years of experience … Not having the ability to counter the imbalance of the male-to-female ratio in the engineering field leads to a false narrative that could discourage women from pursuing a career in the science, technology, engineering, and math fields.

“Camille Olson, a labor and employment attorney who testified on behalf of the U.S. Chamber of Commerce, echoed concerns over how the EEOC would even use the massive amount of new data. “Despite the excessive burden imposed on employers, the EEOC failed to articulate a clear benefit associated with its proposed collection,” Olson said. “In addition to the problems inherent in the data that the EEOC proposes to collect, its proposed statistical approach will also be unhelpful in identifying discrimination.”

Olson also emphasized the need for stronger privacy protections for workers and employers, saying, “In the hands of the wrong people, the original pay data from the EEO-1 report could cause significant harm to EEO-1 responders and subject employees to potential violation of their privacy … Unfortunately, although it is statutorily required to do so, the EEOC has failed to set forth appropriate steps or protocols to ensure the privacy and confidentiality of EEO-1 data.”

Criminal background checks. Cox, though, expressed appreciation for the critical role that the EEOC has played both past and present in identifying and helping to eliminate employment discrimination. Among other things, he applauded the EEOC’s leadership on the criminal history front, particularly with the agency’s updated guidance on consideration of arrests and convictions in employment.

“The EEOC’s work on the guidance is not only commendable, it is also consistent with the growing national and bipartisan consensus that we need to rethink our criminal reentry systems to ensure that millions of Americans who have a criminal record, but who have paid their debt to society and are qualified for work, are not unjustly denied the opportunity to reintegrate back into society by the misuse of criminal background checks,” Cox said. “To allow the presence of an arrest or conviction record to bar an individual from meaningful employment forever, would deny to millions that most powerful and important American opportunity—a second chance.”

Cox observed that the fruits of the EEOC’s leadership in this area are apparent across the country. “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,” he noted. “Nationwide over 150 cities and counties have adopted ban the box. Twenty-five states have adopted ban-the-box policies, and 9 states have removed the conviction history question on job applications for private employers.”

In addition, Cox pointed out that as part of the President’s Obama’s Fair Chance Business Pledge, more than 100 companies, businesses, and employers have indicated they are “committed to providing individuals with criminal records . . . a fair chance to participate in the American economy” including Facebook, Google, Koch Industries, the Coca-Cola Company, PepsiCo., and Xerox.

Change in focus? Although not all witnesses who testified at the hearing thought the EEOC needs to change its focus, Byrne did, saying in closing that the agency should turn its focus toward what he considers “proper enforcement” of nondiscrimination policies. “What the EEOC should be focused on is improving enforcement of existing worker protections,” he said. “With a new Congress and new administration, we have an opportunity to move the EEOC in a new direction, and that’s precisely what America’s workers need.”

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