Dear NCISS members,
On Wednesday, September 17, 2014 at 10:00 a.m. in room 2175 Rayburn House Office Building., the House Education and Workforce Committee, Subcommittee on Workforce Protections will conduct a hearing addressing several pieces of legislation designed to rein-in the Equal Employment Opportunity Commission (EEOC).
The bills being examined are:
H.R. 4959, "EEOC Transparency and Accountability Act," To direct the Equal Employment
Opportunity Commission to maintain up-to-date information on its website regarding charges and actions brought by the Commission, and for other purposes.
H.R. 5422, "Litigation Oversight Act of 2014," To amend title VII of the Civil Rights Act of 1964 to require the EEOC to approve commencing or intervening in certain litigation.
H.R. 5423, "Certainty in Enforcement Act of 2014." Prohibiting the EEOC from penalizing companies for using criminal background screening for a variety of positions, including: health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties.
Witnesses have yet to be announced.
Of greatest importance to NCISS members is HR 5423. The findings section at the outset of this bill shows its direct relevance to our industry:
The Congress finds the following:
(1) The Equal Employment Opportunity Commission (EEOC) has, since 1965, been responsible for enforcing Federal laws against employment discrimination, but there are growing concerns about the enforcement and policy approach adopted by the EEOC, raising questions about whether the best interests of workers and employers are being served.
(2) The EEOC may promulgate guidance under the Civil Rights Act of 1964, but that guidance does not have the force of law, and in some cases has been rejected by the courts.
(3) In 2012, the EEOC promulgated enforcement guidance regarding the use of criminal background checks that put employers in the position of acting contrary to Federal, State, and local laws that require employers to conduct criminal background checks for certain positions, such as public safety officers, teachers, and daycare providers.
(4) In EEOC v. Peoplemark, Inc., a case challenging Peoplemark's use of criminal background checks in making employment decisions, the Court of Appeals for the Sixth Circuit in October 2013 affirmed an award of $751,942 against the EEOC for prevailing defendant Peoplemark's attorney's and expert fees.
(5) In EEOC v. Kaplan Higher Education Corporation, a case challenging Kaplan's use of credit reports in the hiring process, the Court of Appeals for the Sixth Circuit affirmed the district court's decision granting summary judgment in favor of Kaplan and stated that the EEOC brought a case on the basis of a `homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself'.
This is fairly damning language to include in legislation, demonstrating the Committee's displeasure with the EEOC.
While it is unlikely that any of this legislation will pass the Senate this session, the House Committee is laying important groundwork for the 114th Congress, where the prospect of a GOP-controlled Senate would provide much closer inspection of suspect EEOC policies and enforcement actions.
