Seyfarth Synopsis: Senate Committee on Health, Education, Labor and Pensions Chairman Lamar Alexander (R-TN) takes aim at the EEOC’s EEO-1 data collection proposal and systemic litigation efforts through proposed legislation.

On March 16, 2016, Senate Committee on Health, Education, Labor and Pensions Chairman Lamar Alexander (R-TN) introduced a bill taking aim at the EEOC’s new EEO-1 data collection proposal, penchant for systemic litigation, and lack of transparency regarding its litigation-related expenditures. The proposed EEOC Reform Act (Senate bill S.2693) would require that:

  • Before the EEOC implements its new EEO-1 data collection proposals, the agency must collect the same data from the executive branch as well as verify, compile, ensure confidentiality, and protect that information. It must calculate the amount of time this takes—including how many staff hours were reallocated from working on tackling its backlog of complaints of discrimination—and submit annually a report to Congress on this information.  This report must also be made available to the public for comment.
  • The EEOC prepare a comprehensive plan for how it will use, collect, verify, protect, and ensure the confidentiality of the new EEO-1 data and not begin collecting this information until the agency reduces its backlog of 76,000 private sector complaints of discrimination to fewer than 3,660—the same number of data points employers will be required to provide under the EEOC’s new EEO-1 proposal.
  • Individual Commissioners have the power to require the Commission to approve of any proposed litigation and that there must be a Commission vote before the agency proceeds with any litigation involving multiple plaintiffs or allegations of systemic discrimination. Votes must be posted on the EEOC’s website.
  • The EEOC provide information to Congress, on its website, and in its annual report of each case litigated by the agency, including any cases resulting in fees, costs, or sanctions, regardless of whether the case was authorized by the Commission or initiated by the EEOC itself. The agency must also conciliate in good faith and allow judicial review of those efforts.

According to Senator Alexander, “[t]his legislation would give the EEOC a dose of its own medicine—requiring them to collect the same data on federal employees, to see how much that costs in time and money before it makes that requirement of 61,000 private sector employers.”

S.2693 remains pending and is currently co-sponsored by Senators John McCain (R-AZ), Pat Roberts (R-KS), and Johnny Isakson (R-GA).

On April 21, 2016, the Senate Appropriations Committee advanced legislation which included two priorities offered by Senator Alexander, once again intended to direct the EEOC to reduce its backlog of more than 76,000 private sector discrimination complaints and 12,000 public sector hearings, and to allow public input into any new guidance it proposes. Included within the Fiscal Year 2017 Commerce, Justice, Science, and Related Agencies Appropriations Bill, Senator Alexander’s proposals require, first, that the Committee direct the EEOC to prioritize its staffing and resources toward reducing the backlog and, second, provide 30 days for public comment on new guidance when so requested by at least two Commissioners.

According to Senator Alexander: “[f]ocusing on the backlog will force the agency to focus on its core mission of protecting American workers. Giving the public at least 30 days to comment on any new guidance will help ensure that the agency’s guidances are not implemented without giving the public an opportunity to have a say.”

Senator Alexander is one of many critics of the EEOC’s enforcement priorities but is certainly one of the more notable. Without a doubt, the EEOC Reform Act, in particular, has potential to reduce the burden on employers attempting to comply with the agency’s demands.  However, whether the proposal has a long-term future remains to be seen.