Rep. Tim Walberg (R-MI), Chairman of the House Subcommittee on Workforce Protections, introduced two bills on September 10 aimed at curbing the Equal Employment Opportunity Commission's authority.
The first measure, the Litigation Oversight Act of 2014 (H.R. 5422), would require the EEOC to approve, by majority vote, all lawsuits or interventions in lawsuits involving multiple plaintiffs or an allegation of systemic discrimination or a pattern or practice of discrimination. As discussed in the agency's strategic plan for FY 2012-2016, the EEOC's Systemic Initiative "makes the identification, investigation, and litigation of systemic discrimination cases - pattern or practice, policy, and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic area - a top priority." The new legislation would make it more difficult for the EEOC to pursue this initiative, although it is not expected to advance.
The second measure, the Certainty in Enforcement Act of 2014 (H.R. 5423), takes aim at the EEOC's updated 2012 enforcement guidance on criminal background checks. Many in the business community have faulted the EEOC's stance regarding an employer's consideration of an applicant's criminal record in making hiring decisions. According to the bill's "findings" section:
- The Equal Employment Opportunity Commission (EEOC) has, since 1965, been 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.
- The EEOC may promulgate guidance under the Civil Rights Act of 1964, but that guidance does not have the force of law, and in some cases has been rejected by the courts.
- 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.
- 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.
- 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”.
In response, the legislation would amend Section 703 of the Civil Rights Act to add the following provision:
(o) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer, labor organization, or employment agency, or for a joint labor management committee controlling apprenticeships or other training or retraining opportunities, to engage in an employment practice that is required by 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.
Both bills have been referred to committee.