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Congress Challenges EEOC Policies

Equal Employment Opportunity Commission critics got their chance to vent about the agency during a committee May 24 hearing in the House of Representatives.

Rep. Bradley Byrne (R-AL), chairman of the House Committee on Education and the Workforce’s Subcommittee on Workforce Protections, asserted that thousands of workers’ complaints of discrimination had been ignored because of the EEOC’s determination to head in other directions.

“The EEOC consistently took its eye off the ball and pursued flawed enforcement policies at the expense of workers,” he said, including tens of thousands of workers who have filed complaints that have yet to be resolved by the commission.

He noted that the average annual number of unresolved cases was roughly 90% higher under the Obama Administration than the Bush Administration, even though it pursued 50% fewer cases on behalf of individual workers.

At the end of 2016, the EEOC had more than 73,000 unresolved cases, Byrne pointed out. “This is completely unacceptable. These are men and women who turned to the federal government for help and got lost in an inefficient bureaucracy.”

Commission critics say the Obama era EEOC neglected its responsibilities in handling individual cases while spending an excessive amount of time and resources pursuing “systemic discrimination” class action law suits involving companies’ entire workforces.

The results were decidedly mixed in these cases. Although the commission won or settled some, others ended up with sharply worded rebukes from the courts and even hundreds of thousands of dollars in penalties.

Byrne and witnesses from employer groups took special aim at the commission’s adoption of extensive reporting requirements it added to the EEO-1 annual reporting form intended to illuminate pay disparities for women and minorities.

Camille Olson, representing the U.S. Chamber of Commerce, said the current EEO-1 report requires employers to submit 180 data points, while the new one requires 3,660 data points for each employer establishment, which is defined as any location with more than 50 employees.

A few months prior to the hearing, U.S. Senators Lamar Alexander (R-TN) and Pat Roberts (R-KS) asked the White House Office of Management and Budget to scrap the new reporting requirement, scheduled to go into effect on March 31, 2018.

However, given that the 2018 EEO-1 report will be based on 2017 pay data, employers were expected to conduct audits prior to making final compensation decisions that were effective in 2017.

Earlier this year EEOC Acting Chairman Victoria Lipnic, a Republican commissioner named by President Trump to head the agency, said that she wanted a re-evaluation of the costs and benefits of the modified EEO-1 report.

Testifying on behalf of the Equal Employment Advisory Council, an employer group, vice president and general counsel Rae Vann, argued that the data being collected is arbitrarily defined and won’t help serve the intended purpose.

“Employers do not compensate their employees the same way,” she said. “There are a myriad of variables that go into calculating an individual employee’s or a class of employees’ pay.”

Vann also said the publicly-available summaries of data that are intended to help develop policies and regulations will prove to be useless for that purpose.

“What the data collection purports to do is provide enforcement agencies or other outsiders summary data, which inherently is comparing apples to oranges. They are not comparing similarly situated individuals.”

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