During a House Subcommittee hearing, Equal Employment Opportunity Commission (EEOC) Chair Jacqueline Berrien responded to questions about recent agency enforcement and regulatory initiatives. Among other topics, Berrien touched on an employer’s use of credit, criminal, and unemployment histories in making employment decisions, as well as the agency’s renewed focus on systemic discrimination cases.

Subcommittee Chairman Rep. Tim Walberg (R-MI) opened the hearing by commenting that the agency has “traditionally focused its enforcement activities on individual complaints of discrimination,” but that under the recently-approved Strategic Plan, the agency has “shifted more attention toward systemic discrimination that involves an alleged pattern or practice of discrimination. The commission has set a goal that up to 24 percent of all litigated cases be systemic in nature.” Walberg criticized this approach as not being in the best interest of employers and employees. He said that many such investigations “are launched without any employee alleging discrimination.” What purpose does it serve, he asked, when the EEOC investigates businesses without any evidence of wrongdoing? He claimed that the EEOC should not be diverting its resources to investigating “a hunch.”

In addition, Walberg mentioned also that the EEOC “has pursued new policies surrounding the use of criminal and credit background checks, which may affect employers’ ability to effectively protect their workers and customers.” The agency issued revised enforcement guidance on the use of conviction and arrest records in August 2012 and held a hearing to examine the use of an employee’s or applicant’s credit history in 2010. According to Walberg, the guidance on the use of conviction and arrest records puts many employers at risk of violating various state and federal laws that require them to pursue background checks on certain categories of employees. He also found fault with the lack of public opportunity to comment on this guidance.

Rep. Suzanne Bonamici (D-OR) asserted that her state, Oregon, passed a ban on using an applicant’s credit history in making employment decisions and that about eight other states have done so as well. Berrien said that as part of the overall Strategic Plan the agency is examining various barriers to recruitment and hiring, including an individual's unemployment and credit history.

Rep. Larry Bucshon (R-IN) also questioned Berrien about the EEOC’s revised criminal records guidance and pointed out that Berrien was subjected to a background check for her current position. Thus, he stated, it was hypocritical and amounted to agency “overreach” for the EEOC to impose limits on the same private employer practice.

In response, Berrien claimed that the EEOC guidance does not prevent an employer from conducting background checks entirely, but rather addresses what an employer can and cannot do with that information.

Another lawmaker asked Berrien about the status of the Senate Appropriations Committee’s directive to the EEOC “to report to the Committee . . . the steps it has taken to alleviate confusion about the new guidance.” Berrien claimed that the agency has another month in which to provide this information.

Rep. Walberg also expressed concern about the Strategic Enforcement Plan’s delegation of certain enforcement authority to the EEOC’s general counsel. Walberg said that doing so jeopardizes the checks and balances system that is in place when a full commission operates. Berrien countered that the Strategic Enforcement Plan was adopted by a majority of Commission members, and that the general counsel regularly reports to the Commission on important litigation issues.

Berrien also defended the agency’s record, stating the EEOC has made significant progress in resolving charges of discrimination and reducing inventory of unresolved charges. Notably, the inventory of unresolved private sector charges has been reduced by nearly 20% since FY 2010, she claimed. Ranking subcommittee member Joe Courtney (D-CT) noted that despite the EEOC’s progress, the agency’s case backlog continues to grow, a situation that is exacerbated by agency budget cuts and the sequester.

Additional Anti-Discrimination Legislation

During the hearing, Rep. Courtney focused on advancing various pieces of anti-discrimination legislation. First, he noted that the bi-partisan Employment Non-Discrimination Act (ENDA), which prohibits employment discrimination based on an individual’s sexual orientation or gender identity, has recently be reintroduced in both houses of Congress. “I urge Chairman Walberg and Chairman Kline to work with Representatives [Jared] Polis and [Ileana] Ros-Lehtinen, the bill's bipartisan sponsors, to bring this long overdue legislation back before the Committee for its immediate consideration.”

Courtney also pressed for consideration of the Protecting Older Workers Against Discrimination Act (POWADA). According to Courtney, “this legislation has been modified since it was originally brought before the Committee under Chairman Miller's leadership and is now a bipartisan bill sponsored by Senators Grassley and Harkin in the Senate. I believe we too could find common ground on this bill to protect this nation's older workers.”

Finally, Courtney urged consideration of the Paycheck Fairness Act, “which has been passed twice by this House on a bipartisan basis should be brought up for immediate consideration so that gender-based pay discrimination is finally put on equal footing with our other civil rights laws.” This measure stalled in the Senate last year. 

A webcast of the hearing can be found here.