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Opportunities to Change Course at EEOC

The Subcommittee on Workforce Protections, chaired by Rep. Bradley Byrne (R-AL), held a hearing to discuss the need for more responsible regulatory and enforcement policies at the Equal Employment Opportunity Commission (EEOC). As part of the committee’s ongoing oversight efforts, members reviewed the agency’s overreach in recent years and highlighted opportunities to change course under new leadership.

“Republicans and Democrats agree our nation’s non-discrimination laws must be properly enforced, and the EEOC plays a critical role in doing just that,” Chairman Byrne said. “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.”

Chairman Byrne expressed concern over the EEOC’s flawed enforcement efforts under the Obama administration, noting that, “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.” 

Witnesses shared this concern and detailed the EEOC’s misplaces priorities.

“The agency’s self-imposed pressure to ‘fish’ for large, class-based claims has undermined the quality and effectiveness of its overall enforcement efforts and has distracted from ensuring that litigation remains an option of last resort,” said Rae Vann, vice president and general counsel for the Equal Employment Advisory Council. 

Vann described the EEOC’s strategy as one based on “the assumption that widespread workplace discrimination is present in every district and region — and at every company — across the country.” She added that, “Rather than focusing on increasing its systemic litigation docket, the EEOC should do more on the front end to ensure that all discrimination charges it receives are properly categorized, investigated, and resolved.” 

Instead of improving its enforcement efforts, the EEOC spent its time and resources pursuing misguided regulatory schemes. For example, witnesses highlighted the consequences of the EEOC’s expansive changes to the Employer Information Report EEO-1 under the Obama administration. The changes increased by 26 times — from 128 data points to 3,360 data points — the amount of employee information employers are required to file. 

Lisa Ponder, vice president and global human resources director for MWH Constructors, Inc., questioned whether the agency can even use the information to identify pay discrimination in the real world.  

“The number of women engineers in the baby boomer generation is approximately 5 percent in our industry, so we have very few senior women engineers,” she said. “However, the number of women engineers in the millennial generation is closer to 20 percent in our industry, so we have many more junior women engineers. There is no way to show that in reality we pay our senior engineers more than we pay those with much less experience.” 

Ponder continued, “There will appear to be a pay differential based on gender when in fact the pay differential is based on years of experience … Not having the ability to counter the imbalance of the male-to-female ratio in the engineering field leads to a false narrative that could discourage women from pursuing a career in the science, technology, engineering, and math fields.” 

Camille Olson, a labor and employment attorney, echoed concerns over how the EEOC would even use the massive amount of new data from this overreaching regulatory regime. 

“Despite the excessive burden imposed on employers, the EEOC failed to articulate a clear benefit associated with its proposed collection,” Olson said. “In addition to the problems inherent in the data that the EEOC proposes to collect, its proposed statistical approach will also be unhelpful in identifying discrimination.” 

Olson also emphasized the need for stronger privacy protections for workers and employers, saying, “In the hands of the wrong people, the original pay data from the EEO-1 report could cause significant harm to EEO-1 responders and subject employees to potential violation of their privacy … Unfortunately, although it is statutorily required to do so, the EEOC has failed to set forth appropriate steps or protocols to ensure the privacy and confidentiality of EEO-1 data.” 

In closing, Chairman Byrne called on the EEOC to turn its focus toward proper enforcement of non-discrimination policies. 

“What the EEOC should be focused on is improving enforcement of existing worker protections,” he said. “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.”

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