In its first full hearing since the November elections, the Senate Committee on Health, Education, Labor and Pensions (HELP) met on Thursday to discuss the nominations of P. David Lopez to serve another term as General Counsel of the Equal Employment Opportunity Commission (EEOC), and Charlotte Burrows to serve as an EEOC Commissioner.
President Obama nominated Charlotte Burrows, currently the Department of Justice Associate Deputy Attorney General, to become a new member of the EEOC in September. If confirmed, Burrows would be the third Democratic Commissioner of the five-member Commission. The current EEOC includes Chair Jenny R. Yang (D), whose term expires on July 1, 2017; Constance S. Barker (R), whose term expires on July 1, 2016; Chai R. Feldblum (D), whose term expires on July 1, 2018; and Victoria A. Lipnic (R), whose term expires on July 1, 2015.
Much of the sparsely-attended hearing focused on the EEOC's recent targeting of employee wellness programs, and its investigation of potential unlawful activity when no formal complaint has been filed. With respect to wellness programs, Senators brought up the two recent merits lawsuits the EEOC has filed against companies, and a third action the agency brought for temporary relief, all alleging the companies' wellness programs violated the Americans with Disabilities Act (ADA) and/or the Genetic Information Non-Discrimination Act (GINA). Sen. Al Franken (D-MN) asked General Counsel Lopez how he strikes a balance between the promotion of wellness programs under the Affordable Care Act (ACA), and medical privacy concerns under the ADA and GINA. Lopez responded that under the agency's 2000 guidance, the provision of medical information under a wellness program must be "voluntary" to be considered lawful. Further discussion of what constitutes "voluntariness" showed that the issue is thorny and complex.
Ranking member Lamar Alexander (R-TN) said there is "value" in the EEOC's formulation of guidance to "harmonize" wellness under the ADA and the ACA. To this end, he asked nominee Burrows whether if confirmed, she would allow the public to comment on such guidance before it is issued. She responded that "it's very important to have input from all stakeholders," but said whether traditional "notice and comment" feedback would be warranted is something she would have to discuss with her fellow Commissioners.
In addition to what he felt was a "lack of transparency" with respect to the agency's issuance of guidance documents without soliciting meaningful public input, Sen. Alexander criticized the EEOC for placing "too much emphasis on litigating high-profile lawsuits, and too little emphasis on the charges that have been filed." He noted that last year the EEOC received more than 93,000 charges of discrimination, and that more than 70,000 remain unresolved. Alexander took particular issue with the EEOC's investigation of accounting firms whose partners have voluntary signed mandatory retirement agreements. The EEOC is reportedly examining whether such agreements violate the Age Discrimination in Employment Act (ADEA). Alexander said the EEOC's litigation strategy is "time-consuming and costly," and that a better use of the agency's limited resources would be resolving its backlog of pending charges.
An archived webcast of the hearing can be found here.