House GOP Members Criticize the EEOC On Background Checks, Enforcement Tactics

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Kevin P. McGowan  

June 10 — Republicans on a House Education and the Workforce subcommittee June 10 criticized the Equal Employment Opportunity Commission for discouraging employers from conducting necessary criminal background checks on job applicants and for pursuing meritless discrimination suits.

At an oversight hearing of the Subcommittee on Workforce Protections, Rep. Tim Walberg (R-Mich.), the panel chairman, said the EEOC's 2012 guidance on employers' use of arrest and conviction records “has made it more difficult for employers to ensure the safety of their customers and co-workers.”

Among other witnesses, the subcommittee heard from Lucia Bone, who founded Sue Weaver C.A.U.S.E. in Flower Mound, Texas, to push for more stringent background checks in employment after Weaver, her sister, was raped and murdered in 2001 by a twice-convicted sex offender who had worked in Weaver's home for a duct-cleaning subcontractor.

If the two companies involved had conducted a criminal background check, her sister “might still be alive today,” Bone told the subcommittee.

“There isn't a member of Congress who wouldn't be outraged if his or her loved one suffered the same fate as your sister,” Walberg said. “But because of the EEOC's overreach, there are now policies in place making it harder for employers to do what is right. Some employers will simply avoid the bureaucratic hassle of conducting background checks or the risk of being second-guessed by the federal government, which means more Americans might be put in harm's way.”

Rep. John Kline (R-Minn.), the full committee chairman, said the EEOC guidance is a potential job killer as small employers in particular might choose not to hire anyone rather than deal with the agency's long, complicated guidance about what employers must do when conducting criminal checks.

The guidance could have “the perverse effect” of erecting an employment barrier against the very workers the EEOC intended to protect, Kline said.

Guidance Offers No ‘Safe Harbor.'

The EEOC's requirement of individual assessments of job applicants with past convictions is particularly difficult for small employers that lack internal human resources departments or access to specialized legal advice, said Todd McCracken, president of the National Small Business Association in Washington.

The EEOC guidance doesn't offer employers any “safe harbor” from potential Title VII liability even if applicable state law requires criminal background checks, McCracken said.

Similarly, compliance with the EEOC criminal background check guidance wouldn't shield an employer from tort liability for negligent hiring or worse if it hires an applicant with a past conviction who subsequently harms customers, co-workers or the public, McCracken said.

The EEOC should provide employers with a safe harbor when a “direct conflict” exists between the EEOC guidance and state law requirements, McCracken said.

Rather than sue employers that conduct criminal checks in compliance with state law, the EEOC should work out its differences with the state or local governments that have conflicting policies, McCracken said.

Bone criticized the EEOC for not including any victims' rights organizations at the EEOC July 2011 public meeting that focused on criminal records checks as a barrier to employment.

The EEOC should suspend enforcement of its current guidance, reopen hearings and issue a more balanced policy that gives greater weight to customer and public safety concerns, Bone said.

The subcommittee previously held a May 2013 oversight hearing at which EEOC Chair Jacqueline Berrien was the sole witness.

But Walberg said in the year since then, the EEOC hasn't responded to the concerns previously raised about “the commission's failed approach to enforcement.”

“Instead of [EEOC] members working together to resolve claims of discrimination raised by American workers, we have an unaccountable [EEOC] general counsel pursuing cases of systemic discrimination without any allegations of wrongdoing,” Walberg said. “The results have been disappointing to say the least.”

Divergent Views of EEOC's Track Record

Competing witnesses emphasized different aspects of the EEOC's recent results in the courts.

Representing the U.S. Chamber of Commerce, management attorney Camille Olson said the EEOC's unwise delegation of litigation authority to the general counsel and its failures to adequately investigate or conciliate charges have led to courts consistently rejecting the agency's positions and awarding monetary sanctions against the EEOC for unreasonable suits.

The Chamber released a report in conjunction with the hearing that enumerates the EEOC's failures in cases in which it filed amicus briefs as well as federal courts' criticisms of the agency's litigation choices and tactics.

“The EEOC's abusive enforcement tactics must be addressed,” said Olson, a partner with Seyfarth Shaw in Chicago. “While federal judges have pushed back in certain cases, the EEOC clearly has not gotten the message.”

“Moreover, relying on federal court judges as the final check on EEOC enforcement is often a case of ‘too little, too late,' ” Olson said. “By that time, employers have already spent significant time and resources defending themselves against unmeritorious allegations and the EEOC's misplaced priorities and overzealous litigation tactics leave fewer resources and longer delays in investigating and resolving meritorious discrimination allegations and providing employers with accurate guidance around which to shape their workplace policies.”

Olson said in the past two years, the courts have ordered the EEOC to pay $5.6 million in attorneys' fees for pursuing suits the courts decided weren't reasonably grounded in law or in fact.

The EEOC's amicus program is “an overwhelming failure” as the courts have rejected the commission's substantive position in eight of the past 10 cases in which it filed amicus briefs, Olson said.

But Sherilynn Ifill, representing the NAACP Legal Defense and Educational Fund Inc. in New York, said the EEOC has prevailed in nine of the past 10 cases it has taken to jury trial.

The EEOC settles through conciliation the “vast majority” of discrimination charges in which it finds reasonable cause, Ifill said.

Employer representatives “cherry picking” among litigated cases to find examples of the EEOC's court defeats can't obscure that the agency is performing exactly the role envisioned by Title VII, Ifill said.

“There is no question that the EEOC has been incredibly successful in redressing various forms of employment discrimination,” Ifill said. “The commission has been a driving force in dismantling segregated workplaces, removing unnecessary and discriminatory employment barriers and obstacles, and ensuring that the promise of equality of work could be realized for millions of Americans.”

Criminal Check Policy Isn't Novel

Far from a radical change, the EEOC's 2012 guidance on use of arrest and conviction records updates prior agency guidance originally issued in 1987 and draws on principles found in Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, 10 FEP Cases 1409 (8th Cir. 1975), Ifill said.

The guidance “neither discourages nor suggests” that employers shouldn't use criminal background checks but rather advises employers on how to use the results so such checks don't become a discriminatory barrier to hiring otherwise qualified persons, Ifill said.

Some 12 states and 60 other jurisdictions have adopted “ban the box” rules to take the convictions and arrest question off the employment application, Ifill said.

The intent of the EEOC guidance and those state and local rules is to ensure “those who deserve a fair chance at a job” have the opportunity to be included, Ifill said.

It's not “cherry picking” to point out that the courts have ruled the EEOC failed to establish even a prima facie case in all three criminal and credit background check cases it has litigated, Olson said, citing the U.S. Court of Appeals for the Sixth Circuit decisions in EEOC v. Peoplemark Inc. and EEOC v. Kaplan Higher Education Corp. and the Maryland federal district court opinion in EEOC v. Freeman.

Democrat Decries Exclusion of EEOC

Rep. Joe Courtney (D-Conn.), the subcommittee's ranking minority member, asked why the Republican leadership didn't invite any EEOC representative to testify.

If “you don't have the agency here to answer” the criticisms leveled by the Republican House members and employer witnesses, then “I'm very puzzled by the process,” Courtney said.

The subcommittee could have heard “some helpful debate” if it had included the EEOC, Courtney said. “I don't think [the hearing] had the right balance and that's unfortunate,” he said.

Courtney entered into the record a published article by EEOC General Counsel David Lopez that Courtney said responds to the criticisms of the agency's enforcement strategy and results.

In the past, Lopez has emphasized the EEOC litigates only a minuscule percentage of the charges on which it finds reasonable cause and that federal courts are split regarding judicial review of pre-suit conciliation and whether the EEOC is making adequate settlement efforts before filing suit.

The notion that there's “this avalanche of litigation” is false but it's true the EEOC's tactics sometimes are criticized, Courtney said.

Delegation of Litigation Authority

As he did at the 2013 oversight hearing, Walberg criticized the EEOC's delegation of litigation authority to the general counsel.

The EEOC's delegation of litigation authority is a “retreat from responsibility” by the five-member commission, said Olson of Seyfarth Shaw.

At the EEOC, “litigation is policy,” and the commission should be making those decisions rather than leaving them to the general counsel or in many cases, the “bureaucrats spread among” the EEOC's 15 district offices, Olson said.

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

The witnesses' prepared testimony is available at http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=383368. Text of the U.S. Chamber report on the EEOC is available at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-9kxmm9.