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Byrne Statement: Hearing on “The Need for More Responsible Regulatory and Enforcement Policies at the EEOC”

Every American deserves an equal chance to earn success. No one should be denied an opportunity because of unlawful discrimination. The vast majority of employers treat their employees equally and foster an environment free of discrimination. But we live in a world where prejudice and bigotry still exist, and bad actors must be held accountable.

That is why there are important protections under federal law to prevent workplace discrimination, including the Civil Rights Act, the Americans with Disabilities Act, and the Equal Pay Act, among others. Republicans and Democrats agree our nation’s non-discrimination laws must be properly enforced, and the EEOC should play a critical role in doing just that.

We wouldn’t be doing our job here in Congress if we didn’t hold the EEOC accountable when it has fallen short of its important responsibilities. That is why, under the Obama administration, we repeatedly raised concerns over the agency’s misplaced priorities. The EEOC consistently took its eye off the ball and pursued flawed enforcement policies at the expense of workers.

Take for example the agency’s backlog of unsettled charges. At the end of 2016, the EEOC had more than 73,000 unresolved cases. Thousands of individuals were still waiting for answers on the discrimination charges they filed. This is completely unacceptable. These are men and women who turned to the federal government for help and got lost in an inefficient bureaucracy.

The EEOC’s backlog hasn’t always been this high. In fact, the average annual number of unresolved cases was roughly 90 percent higher under the Obama administration than the Bush administration. 90 percent. And that’s not all. The Obama EEOC pursued 50 percent fewer cases on behalf of individual workers.

With this type of track record, one may wonder what exactly the EEOC has been doing all these years. Part of the answer lies in the agency’s misguided focus on fishing expeditions. Instead of using its resources to address actual claims of alleged wrongdoing, the EEOC has been on a nationwide search for “systemic” cases of discrimination that may or may not exist.

The result? A long list of frivolous lawsuits and the needs of many individual workers unmet. One U.S. District Court judge described the agency’s backwards strategy as “sue first, ask questions later.” And unanimous rebukes by the Supreme Court led the Wall Street Journal editorial board to name the EEOC the “government’s most abusive agency.”

However, the EEOC has been busy in more ways than fishing expeditions. The agency has also spent its time and resources concocting overreaching and convoluted regulatory schemes. Most recently, we’ve seen expansive changes to the employer information report, the EEO-1.

Under federal law, employers have long been required to file employment data categorized by race, gender, ethnicity, and job category. This year, employers will fill out a form with 128 data points. But beginning next year, employers — including many small employers — will face a form with a whopping 3,360 data cells. That’s 26 times the amount of information employers currently provide to the federal government. Can you imagine making sense of this massive, confusing reporting regime as a small business owner?

This new mandate is estimated to cost American job creators $1.3 billion and more than 8 million hours of paperwork each year — resources that could go toward raising wages and hiring new workers. And for what? We don’t even know how the EEOC intends to use all of this new data and whether or not it can help combat pay discrimination in the first place. There are also serious privacy concerns since the agency has failed to demonstrate how it plans to safeguard this enormous amount of new information.

What the EEOC should be focused on is improving enforcement of existing worker protections. And that’s exactly why we are here today: to hold the agency accountable and demand better. With a new Congress and new administration, we have an opportunity to move the EEOC in a new direction, and that’s precisely what America’s workers need.

Today’s discussion is an important step in our efforts to encourage the EEOC to adopt more responsible regulatory and enforcement policies. It is my hope we can have a thoughtful dialogue on how we can ensure the strong worker protections that exist in the law are properly enforced.