Could ‘Transparency’ Measures Alter EEOC’s Enforcement Role?

By Bill Leonard Mar 25, 2015
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Depending on whom you listen to, legislation being considered by the House Subcommittee on Workforce Protections will either restore balance to the law enforcement efforts of the Equal Employment Opportunity Commission (EEOC) or roll back and potentially eliminate several essential workforce protections.

“The EEOC plays a vital role ensuring America’s workers are free to pursue employment without fear of discrimination based on their race, gender, disability or religion,” said Rep. Tim Walberg, R-Mich., chairman of the subcommittee. “Unfortunately, the enforcement and regulatory approach adopted by the EEOC in recent years raises serious doubts about whether our nation’s best interests are being served.”

Walberg made these comments to open a March 24, 2015, subcommittee hearing on four pieces of legislation that would change oversight of the EEOC’s litigation processes and attempt to clarify several of the agency’s regulations and guidances.

Several Republican leaders in the House have claimed that the EEOC has become a rogue agency and has launched a litigation agenda that far surpasses congressional intent on the enforcement of federal workplace discrimination laws. Democrats on the subcommittee have countered the Republicans’ argument, claiming that the commission is only performing its duty and that the proposed legislation would hamper and could even block the EEOC from enforcing laws such as Title VII of the Civil Rights of 1964 and the Americans with Disabilities Act (ADA).

“Today, we examine four bills that I fear will impact the EEOC and compromise the enforcement of civil rights laws,” said Rep. Frederica Wilson, D-Fla., ranking minority member of the subcommittee. “These four bills appear to be a grab bag for unscrupulous employers seeking to strip the EEOC of the tools needed to combat employment discrimination.”

The four bills discussed by the subcommittee during the hearing were:

  • Certainty in Enforcement Act of 2015 (H.R. 548), which would offer a safe harbor to employers for complying with federal or state laws that mandate businesses perform criminal background checks before hiring for certain jobs.
  • Litigation Oversight Act of 2015 (H.R. 549), which would require that EEOC commissioners vote to approve litigation involving multiple plaintiffs or an allegation of systemic discrimination. The bill would also give individual commissioners the power to request that the commission vote to approve any of the agency’s litigation efforts.
  • EEOC Transparency and Accountability Act (H.R. 550), which would require the EEOC to post on its website and include n its annual report any case in which the EEOC was required to pay attorney fees or court costs and, in addition, publicize any court-imposed sanctions.
  • Preserving Employee Wellness Programs Act (H.R. 1189), which would clarify that any employer-sponsored wellness program that complies with the financial incentive regulations of the Patient Protection and Affordable Care Act (PPACA) would also be in compliance with the ADA and the Genetic Information Nondiscrimination Act (GINA).

Confusing Guidance on Criminal Background Checks

Much of the hearing’s testimony focused on the potential impact of H.R. 548. The safe harbor provisions of the measure attempt to clarify EEOC guidance issued in April 2012 on how employers should conduct criminal background checks of job applicants.

Witnesses told the subcommittee members that the guidance was confusing and contradictory, and has left many employers questioning if they should even attempt to screen job candidates.

“The 2012 guidanceis aimed in very vague and general terms at limiting an employer’s discretion to make employment decisions based on a candidate’s criminal record,” said Gail Heriot, a law professor at the University of San Diego and a member of the U.S. Commission on Civil Rights. “But after reading it, even experienced attorneys don’t know how the EEOC wants employers to resolve particular cases.”

Heriot said that Congress should approve H.R. 548 because confusion over the EEOC guidance was keeping many employers from conducting proper background checks of job applicants. She claimed that the situation could endanger the public if employers unknowingly hired individuals with criminal or violent backgrounds.

According to opponents of H.R. 548, the measure would have a disparate impact on minorities, especially for blacks and Hispanics.

“H.R. 548 would undermine the protections that Title VII provides for persons of color with criminal records against employment discrimination on the basis of race,” said Tanya Clay House, director of public policy for the Lawyers’ Committee for Civil Rights Under Law. “Although the burden of this practice falls most heavily on communities of color, particularly the African-American community, Americans of all races and from all walks of life would be affected by these unnecessary exclusions from employment.”

Wellness Programs Discussed

The hearing also focused on the Preserving Employee Wellness Programs Act. The measure was introduced in early March 2015 by Rep John Kline, R-Minn., chairman of the House Education and the Workforce Committee. Kline attended the subcommittee hearing to ask the witnesses questions about the proposed legislation, which has gathered some bipartisan support.

The witnesses told the subcommittee members that the EEOC had stifled employers from launching new wellness programs when the agency filed a lawsuit in October 2014 against Honeywell Corp., alleging that the company’s wellness program was not voluntary and therefore violated the ADA and GINA. In early November, a federal judge denied the EEOC’s request to issue a temporary restraining order to halt the company’s wellness program. The EEOC’s action has created confusion among employers and led businesses to avoid wellness programs for fear of possible litigation.

“The recent enforcement actions brought by the EEOC allege that certain wellness programs can violate the ADA and GINA by imposing penalties on employees who decline participation in the company’s biometric screening program,” said Tamara Simon, managing director, Knowledge Resource Center and Career Practice at Buck Consultants. “These legal actions have had a chilling effect on employer wellness programs.”

Simon said that the EEOC’s action has created a conflict among federal laws that govern wellness programs. While the Honeywell program appears to comply with regulations under the PPACA and the Health Insurance Portability and Accountability Act (HIPAA), the EEOC contends the program does not comply with ADA and GINA rules. According to sources familiar with the issue, the agency’s action has created a problem for the Obama administration, which has actively promoted employer-sponsored wellness programs as a key to reducing health care costs.

Simon said that PPACA and HIPAA regulations allowed voluntary participation in employer wellness programs and included appropriate safeguards for participants’ confidential medical information. She told the subcommittee members that passage of H.R. 1189 would resolve the conflict created by the EEOC’s enforcement action.

Kline announced that the EEOC had submitted proposed regulation revisions to the Office of Management and Budget to clear up the confusion and to ensure that enforcement of the federal laws governing wellness programs was consistent.

“I am taking a wait-and-see approach on this though,” Kline said. “I’m hopeful that the proposed regulation change solves the problem, but I am still prepared to push this legislation forward.”

Sources familiar with the issue agreed that the Kline’s proposal could gather the support it needed to pass Congress and possibly be signed into law by President Barack Obama. Even though the other three EEOC-related measures debated by the subcommittee have the support necessary for approval in the House, the bills would most likely face stiff opposition from Senate Democrats and a veto threat from the president.

Bill Leonard is a senior writer for SHRM.

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