Senators Take EEOC to Task For Wellness Program Litigation

Nov. 13 — The Equal Employment Opportunity Commission should reconsider its pursuit of cases challenging employer wellness programs, Sen. Lamar Alexander (R-Tenn.), the ranking Republican on the Senate Health, Education, Labor and Pensions Committee and probable chairman when the new Congress convenes in January, said during a hearing.

Republican members of the committee criticized EEOC General Counsel P. David Lopez on several fronts Nov. 13 during confirmation hearings on his nomination for a second term and on Justice Department official Charlotte A. Burrows's nomination as an EEOC commissioner.

Alexander and other committee Republicans criticized the EEOC and Lopez for litigating the wellness program issues under the Americans with Disabilities Act and Genetic Information Nondiscrimination Act before the EEOC has issued any ADA guidance that would give employers notice about when wellness programs pass muster.

Questions on Wellness Actions

Republicans Nov. 13 peppered Lopez with questions about the Honeywell case and the EEOC's stance toward wellness plans.

Alexander asked Lopez if he would commit to securing the EEOC commissioners' approval for any future wellness program litigation before going to the court. Lopez replied that when the general counsel sued “on the merits,” it has gotten EEOC approval before filing, as in its lawsuits against Wisconsin-based company Orion Energy Systems Inc.

Lopez emphasized Honeywell isn't a merits lawsuit, but rather that the EEOC was “looking for a little breathing space” while it investigates claims Honeywell is penalizing employees who choose not to undergo a blood test as part of the wellness plan. The EEOC wasn't asking the court to halt Honeywell's plan, just to ensure employees undergoing the blood test or disclosing medical information were doing so voluntarily, as required by the ADA, Lopez said.

Burrows, the nominee for EEOC commissioner, said she thinks agency guidance would be appropriate on the ADA and wellness programs.

It's “extremely important” that the EEOC should solicit input from employers and other agency stakeholders to find “the right balance” through a “transparent process,” Burrows said. “The maximum amount of input on something like that makes sense.”

But in a subsequent colloquy with Alexander, Burrows stopped short of saying the EEOC should make draft guidance available for public comment before agency approval.

Accounting Firm Probes

During the hearing, committee Republicans also asked Lopez why the EEOC is investigating Deloitte LLP under the Age Discrimination in Employment Act regarding its mandatory retirement age for partners even though no one has complained to the agency about alleged age bias.

Lopez said he couldn't confirm or deny any investigation, given the law's confidentiality requirements. But he said in general, the ADEA permits “directed investigations” by the EEOC without a charge being filed, and commissioner's charges are permitted under the other anti-discrimination laws.

Both the EEOC's 2006 systemic task force report and the commission's 2012 strategic enforcement plan advocate greater use of the directed investigation and commissioner's charge procedures, Lopez said. The 2006 report preceded his tenure and the 2012 enforcement plan was a commission initiative, not a general counsel decision, Lopez said.

Both procedures are intended to address cases in which the EEOC learns discrimination may be occurring, but employees might be unaware or too intimidated to file charges, Lopez said.