Thursday, April 9, 2015

Will Transparency Measures Sling Mud at the EEOC?

The House Subcommittee on Workforce Protections is looking at legislation that might rein in the EEOC a bit. Opponents say these bills could eliminate some important workplace protections. I guess it all depends on which side of the issue you fall, but I don’t see any danger of workplace protections being jeopardized by these bills.

Rep. Tim Walberg, R-Mich., chairman of the subcommittee said on March 24th "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." Republican leaders in the House, and business leaders across the country have claimed that the EEOC has overreached its authority and initiated a litigation agenda that goes far beyond congressional intent on the enforcement of several workplace discrimination laws.

Democrats on the subcommittee have claimed that the EEOC is only performing its duty and that the proposed legislation would block it from enforcing laws such as Title VII of the Civil Rights of 1964 and the Americans with Disabilities Act (ADA). With the legislative and regulatory "expansions" of just these two laws already in place, I don’t see much chance of that happening.

So, the four laws the committee is discussing are:

Certainty in Enforcement Act of 2015 (H.R. 548), which would protect employers who are required by federal or state laws that mandate businesses perform criminal background checks before hiring for certain jobs. Current EEOC "guidelines" state that such laws will not be a defense against charges of discrimination or disparate impact. Seriously, the EEOC has said that if your business is barred by the state or federal government from hiring people with certain criminal backgrounds, that fact will not protect you if the EEOC decides that your background checking and resulting hiring practices are deemed discriminatory by their (confusing) standards. The guidance is so confusing that many businesses have become reluctant to perform criminal background checks on applicants. Gail Heriot, a law professor at the University of San Diego and a member of the U.S. Commission on Civil Rights stated "……after reading it [the guidance], even experienced attorneys don’t know how the EEOC wants employers to resolve particular cases." She went on to say that Congress should approve H.R. 548 because the situation could endanger the public if employers unknowingly hired individuals with criminal or violent backgrounds.

Litigation Oversight Act of 2015 (H.R. 549), requires that EEOC commissioners vote to approve litigation involving multiple plaintiffs or that involves 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. Currently, the EEOC General Counsel does not need approval from the commissioners to pursue controversial lawsuits or engage in aggressive litigation tactics. Shouldn’t they all agree a case should be pursued before they do so? Shouldn’t they all be held accountable for their decisions?

EEOC Transparency and Accountability Act (H.R. 550) would require the EEOC to post on its website and include in its annual report any case in which the EEOC was required to pay attorney fees or court costs and publicize any court-imposed sanctions. What’s good for the goose, should be good for the gander. President Obama’s recent orders that federal contractors be required to report any violation, or accusation of violation of federal workplace laws and face debarment because of them, is a prime example. Or how about OSHA’s new requirement for businesses to publically shame themselves over workplace injuries? Hmmmmm? Why should the EEOC be exempt from this disclosure?

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). This is in direct response to the EEOC filing lawsuits against several companies saying their wellness programs violated these laws, while at the same time they complied with the provisions of the Affordable Care Act. Recently, the EEOC submitted its proposed rule to the Office of Management and Budget for approval. Can we hope that H.R. 1189 will no longer be necessary? We shall see.

I knew this was going to be an interesting legislative "season"!

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