The Equal Employment Opportunity Commission's enforcement strategies and ligation history came under fire from Republican members of the Senate Committee on Health, Education, Labor and Pensions on Tuesday. During the hearing to examine the agency's recent activities, EEOC Chair Jenny R. Yang and General Counsel P. David Lopez responded to a variety of questions about the agency's charge backlog, recent proposed rule governing wellness programs under the Americans with Disabilities Act, and the use of commissioner's charges and directed investigations to pursue alleged discrimination when no claimant has come forward.

Committee Chairman Lamar Alexander (R-TN) began the hearing by reminding the Committee that he voted against General Counsel Lopez because he believed Lopez focuses too much of the agency's resources on pursuing investigations that do not involve any claimant, while the backlog of discrimination charges filed with the EEOC now exceeds 75,000. Lamar said the purpose of pursuing some of these cases is to garner the "maximum amount of publicity," and that the agency should instead focus on charges that have actually been filed.  Alexander pointed to the EEOC's age discrimination–related directed investigation of at least three accounting firms where partners adopted a voluntary mandatory retirement age, and of a restaurant that hired employees that "seemed too young" for front-of-the house positions as examples of enforcement activities that were not spurred by actual complaints.

Alexander also pointed out that the agency has committed an "alarming number of errors" during litigation. For instance, he noted that the EEOC has been ordered to pay attorneys' fees in 11 different cases since 2011, and has received "embarrassing rebukes" from the courts.

EEOC Chair Yang countered that the agency uses its commissioner's charge authority "very carefully," and that the bulk of the agency's work is based on individual charges. She explained that during the course of its investigation into a particular charge, the agency might learn of additional information. "We then issue a commissioner's charge to put the employer on notice of the scope of the investigation." She claimed doing so is "a way for us to use our resources most effectively."

Regarding the proposed wellness regulations, Alexander said the proposal does not solve the problem employers face in trying to institute wellness programs that comply with both the ADA and the Affordable Care Act. He said three of the President's departments issued regulations governing wellness programs, which many employers followed. Alexander claims the new EEOC proposed rule conflicts with the existing regulations, and that the EEOC exceeded its jurisdiction and authority by capping at 30% the premium discount reward an employer may give an employee for wellness program participation. He urged Yang to review the legislation he introduced, the Preserving Employee Wellness Programs Act, before issuing the final rule. Yang agreed to do so, stating the agency is still soliciting public comment before finalizing the rule.

Yang mentioned that the agency has a target date of July for issuing a related proposed rule on the Genetic Information Nondiscrimination Act (GINA).

In response to a question from Sen. Al Franken (D-MN) regarding the agency's conciliation process, Yang explained that the EEOC settles "over 1,000 charges through conciliation each year," and resolves about 11,000 charges through mediation.

In an effort to streamline the charge process, Yang noted the agency recently instituted a digital charge filing system, which will be expanded to allow employees to upload information as well.

Sen. Pat Roberts (R-KS) expressed concern that the EEOC has "strayed" from its core mission, looking for patterns of discrimination instead of investigating the 75,000 charges that currently exist.  Yang explained that the agency's 548 investigators are actively examining these charges, but that each year new ones are filed. "We're focusing our resources where we think the government can have the greatest good. Systemic harassment is something we see consistently. . . . litigation and investigation will not solve the problem alone." Yang noted that the EEOC's focus on systemic discrimination is not new, but rather a continuation begun by the agency's Systemic Taskforce instituted during the Bush Administration.

In response to criticism from Sen. Alexander that the agency tends to keep press releases online of cases in which it loses, Yang promised to "look into it."

Finally, General Counsel Lopez fielded questions about the EEOC's recent litigation track record. Lopez explained that cases in which the EEOC lost and/or was ordered to pay attorneys' fees "are cases that keep me up at night also." He said that 90% of cases are resolved successfully, and that the agency pursues cases that he believes will have the most law enforcement impact. Lopez testified that despite the negative publicity, commissioner's charges and directed investigations are used in only a small percentage of cases.

More information on this hearing and links to the panelists' testimony can be found here.