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DOCUMENT NO.
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001. draft
SUBJECTrrITLE
DATE
Remarks by Vice President Al Gore - July 12, 1994 - Chicago,
Illinois (6 pages)
7112/1994
RESTRICTION
P5
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COLLECTION:
Clinton Presidential Records
Domestic Policy Council
Stephen Warnath (Civil Rights)
OA/Box Number: 9592
FOLDER TITLE:
[Equal Employment Opportunity Commission Confirmation Briefing Materials] [4]
ds66
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�Topic:
Problems in Agency Performance~
,Refusal to Accept Charges for processing
Examples Which Can
be cited in a "
Question:
1. Refusing to accept a charge, in general
2. Refusing to accept acharqe which has
been drafted by an attorney
3. Refusing to accept acharqewhich contains
class-type allegations oralleqationsof
systemic discrimination
4. Refusing to accept a charge which contains
allegations which would require more of, an
effort to investigate
5. Insisting on redrafting a charqe drafted
by the charging party or an attorney, ,in
order to delete class-type allegations,
allegations of systemic discrimination, or
allegations which woUld take more ,time
than usual to investigate
Suggested Themes of Answer:
I have heard that these types of problems:may have
occurred in some offices. I take these problems very seriously.
such aotions ha.rm the COlIDllission' s own work, and ,they c'an, also
injure the charging party. An EEOC charge is the charging
party's ticket to oourtJ and if he or she has been unable to f11e
a charge with the Commission or if important allegations were
excluded from the charge, the oourt may not allow the charging
party to make that claim of dis~~imination.
'
. At the same time, It is important to keep in mind. that
many people come to the EEOC with problems which are completely
outside our jurisdiction, and which do not involve any claim o.f
discrimination. Commission staff need to be able to explain that
the laws we enforoe only give the commission the authority to
enquire into problems of disorimination. If there is doubt, or
if the person insists on filing a charge, the safest course is to
take the charge and then dismiss it if dismissal ·is warranted.
That protects both the interests of the Commission and the ,rights
of the char9ing pa.rty if the CQromi~sionemployee turns out to be
wrong.
. If I am confirmed, I will try to develop training
programs which will make sure that this kind of problem does not
occur again.
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Topic:
Problems in Agency Performance;
Poor Quality of Investigations'
Examples Which can 1.Issuing "No Reasonable Cause" de.::is1.ons
just to keep the paperwork moving Ques
be'Cited in a
2. Rating supervisors based on the number'
tion:
of cases they close., . without regard to '
quality of the investigation'
3. The General Aocounting Office reports on
poor-quality charge investigations leading
to arbitrary "no cause" determinations
4. The Staff Report of the House committee on
Eduoation and Labor, reaohinq the same
,conclusions
suggested Themes of nswer:
A
Such problems are' unacceptable. It is essential that
EEOC investigations not Ollly be of high quality, but that they be
seen by both charqlng parties and respondents as impartial,
thorouqh, and roughly refleotive of what the courts would ulti
mately hold if the matter were brought to court. If we can ever
reach this point, we should be able to conciliate more cases and
reduce the burden on the courts.
At the same time, it is extremely' difficult to prevent
such problems 'from occurring when each investigator has responsi
bility for. about 115 new charges a year. This means that each
investigator has an average of a day and a half to work ona new'
charge, a figure which does not include any time to work on the
baoklog. It is-impossible to perform good-qUality investigations
of ev~ry charge.
'
'
.. The number of charges received annually by the Commis
increased by '37' from 1991 to 1993. The total was almost
88,000 oharges last year, and they were handled by only 765
[better ahaak thia] inv6stiqators., Much of the increase.'was due
to oharges under t.he Americans with 'Disabilities Act,' as well as
to sharply increased filings of charges,of sexual or racial
[oheck DatioDal oriqittJ harassment. In addition to the increased
numbers, these types of charges require. greater staff time to
inVestigate.. At the present level of funding, t.he pressure is
likely to increase rather than'decrease, particularly beoause
coverage of the ADA this year will extend, to employers of 15 or
"more employees~
,
'
~ion
,
If"confirmedtI intend to hold discussions with repre
sentatives of Congress andet all inte~ested groups, including
employers ~nd their counsel, civil rights organizations, and the
EEO CQmmittee of the American Bar Association's Labor and Employ
ment Law Section, in order to work t.ogether to. find the best
means of resolving this problem.
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Topic:
Problems in Agency Performanoet
The Backloq
Examples Which Can
be cited in a
Question:
It oan take two or more years before a
meritorious oh~rge reaches the stage
where it can be referred to the Commis
sion's attorneys for litigation
2. It can take nine months to a year or more
before an investigation even starts
3. charging parties faced with ongoing
sexual, ethnio, or racial harassment
need immediate relief
4. Charging parties who have not been hired,
or who have lost their jObs, cannot afford
to wait
~.
Suggested Themes of Answer:
Same as with poor-quality investigations.
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�17.11 FROM·
PEOPLE FOR THE AM.
WAY
[D.
202 283
2672
QUESTIONS RE: RELIGIQUS HARASSMENT ISSUE.
Q:
Tremendous concern has been raised about guidelines
proposed by the EEOC last Ootober concerning reliqlous
harassment in the workplace.
and thousands of people across the country
emplo~ers,
hav~
Members of Congress, ,
protested, these guidelines, because they could
literally produce Jlreligion-free t • workplaces where
.
employees could be forbidden from wearing personal
.
crosses or other religious symbols, or even talking
about religion.
reli9iou~
Yet there is no· documented need for
harassment at all.
~rhe
senate has passed a
resolution calling for the deletion of religion from
the guidelines and the House has approved a similar
provision in EEOC appropriations legislation.
Do you
agree that religion should be deleted from the
guidelines?
A:
senator, I share your reqard for the importance of
religious freedom for all Americans.
A "religion-free
workplace" would itself violate Title VII and no one
•
wants that. It is also important for religious
freedom, however, that Americans be protected against
religious harassment and discrimination on the job just
as they be protected against harassment and
discrimination based on race, sex, and other grounds,
as Title VIr provides.
I )lave not .cully studied the
PAGE
'2
,/
�JUL713-94
17,11 FROM:
PEOPLE FOR THE AM.
WAY
ID.
202
293
2672
PAGE
proposedquidelines, and I am hesitant to discuss them
in detail since they are a pending matter before the
EEOC.
But I believe that it should be possible to
promu15Jate guidelines thatprot.ect aqainst harassment
and preserve religious freedom in a manner consistent
. with the law as enacted by Congress.
Q:
Wfthout.taklng a final position now, wouldn't you agree
that at the very least, religion should be given
special treatment or placed in separate guidelines?
A:
Senator, with due respect I I am hesitant to comment on
'.
specific suggestions, since the guidelines area
pending matter before the EEOC and I have not fully
stUl.He.d them or the comlll.entsthat have been received.
lean pledge that I will carefully take into account
your concerns, the concerns of other members of
Congress, and of all those who have commented to the
EEOC on this matter, and will do my best to help
i
produce guidelines that protect against harassment AD4
preserve reli9iou5 and other freedoms.
[Note:
u.s.
A number of religious and other groups,
~such
as the
Catholic conference, Baptist Joint Committee on Public
Affairs, and American Je'Wish Conqress, have supported retention
of religion as a protected category in the guidelines.
2
Neither
�PAGE
the Senate
re6olutio~,
nor the House provision call for permanent
deletion of religion as a protected category from the final
workplace harassment guidelines, nor for treating religious
harassment under different standards from 'other forms of
harassment; instead, the Senate and House provisions oppose the
proposed guideiines in their
curr~
, consideration and review by the EEOC.
form and call for further
'seyeral key House members
(Ford, Edwards, Fish, and Owens) are circulating a "Dear
colleague" letter which also calls for retention
of
religion as a
protected category in the guidelines.
While some have tried to use this issue to attack Clinton,
in fact no Clinton-appoint:ed official played any role in
generating the October, 1993 draft guidelines which have been
criticized.
While some have suggested that Title VII
enough, the EEOC plays an
import~nt
isp~otectian
role in prov1ding guidance
and training to employers concerning their legal obligations
under Title VII and other federal civil rights laws.
This role
is important so that employers can address workplace ptablems
before they result in costly litigatlon and, as relates to this
issue, so that employers do not inadvertently suppress non
harassing reliqious or other expression.
.
,
The circulating "Dear Colleague" letter and further
background
on
the issue are enclosed.]
3
4
�Providing Leadership
External EEO Programs
and
Coordination
for
Federal
Agencies'
Q.
EEOC not only is responsible for enforcing the nation's major
equal employment laws, it has responsibility under Executive
Order 12067 to provide leadership and coordination for all
federal agencies' equal employment efforts in.programs that
they administer.
How do you view this area of Commission
responsibility?
A.
The Executive Order directs "the" Commission to provide
leadership and consistency in the formulation of equal
employment
policy,
to
develop
uniform
standards
for
investigations and compliance activities; to provide for
sharing
of
findings
among
agencies,
to" standardize
recordkeeping and reporting, to develop uniform training
programs and to take other actions to achieve more effective
compliance with, and enforcement of, various equal employment
requirements and eliminate unnecessary duplication.
The Commissior: has taken many actions to implement this
mandate; however, I believe it must now assert more vigorous
leadership in the Federal establishment. I would promote much
more active consultation and coordin"aticin with other agencies
that have major equal employment responsibilities--including
the Department of Justice, Department of Labor, and the
Departments of Education and Health and Human Services", not
only to assure consistent policies and procedures, but to make
more effective, coordinated use of our limited resources in
combatting employment discrimination.
�Federal Employee Fairness Act
Q.
What are your views on the proposed Federal Employee Fairness
Act, which would transfer processing of federal employees' EEO
complaints from their own agencies to the EEOC?
A.
The proposed Federal Employee Fairness. Act will bring needed
reform to the federal sector process.
There is· an obvious,
inherent conflict of interest In. r~quiring an employee to
bring a complaint of discrimination by his or her agency to
the same agericy for initial processing.
The agency is, in
effect, asked tp judge itself. Transferring the processing to
the EEOC will provide an impartial forum for .resolving such
complaints.
The Administration has worked closely with the
Congress in drafting the terms of the Federal Employee
Fairness ct and it is my understanding that the EEOC has been
A
assured that sufficient funding will be made available to
enable the Commission to implement the Act when it is passed.
It is essential that this assurance 'be honored.
�Policy Stateinent on .Remedies and Relief
Q.
In 1985 the Commission adopted a policy on remedies and relief
that set as a standard, achieving full, remedial corrective
and preventive relief for individuals where discrimination is
found.
This policy has been criticized as preventing any
resolution of charges that do not obtain full relief, even if
the charging party and the respondent are satisfied with the
terms offered. To the extent that this policy keeps charges
alive even when the parties no longer disagree, it has been
alleged that the policy unnecessarily adds to the Commission's
case load. What·isyour view
this policy?
of
A.
An individual who has suffered discrimination has.a right to
all the remedies provided by the statute.
However t the
Commission is required by law to try to resolve discrimination
disputes through conciliation.
Accordingly t there may be
situations where if the charging party.and the respondent are
satisfied with the terms offered t an agreement to accept less
than full relief should be permitted, providing that the
parties are informed of their rights including all available
remedies.
t
Q.
In addition," the policy does not address compensatory and
punitive damages. What is your view on whether compensatory
and punitive damages are a necessary part of full relief for
purposes of settlement or conciliation?
A.
That is a question that the Commission will have to resolve
but inasmuch as they are now an integral part of -Title VII and
ADA remedies t any resolution of the claim would have to
.include consideration of the potential for damages.
t
�IMPROVING EEOC SERVICE TO TRADITIONALLY UNDERSERVED COMMUNITIES
Q.
EEOC has been criticized for failure to provide equitable
service to traditionally underserved groups, specifically to
the Hispanic, Native American and Asian American communities.
As Chairman, how would you respond to this criticism?
A.
I am aWqre of some of these criticisms. As Chairman, I would
give the highest priority to assuring that the Commission
meets its obligation to provide service to every group
protected by every law enforced bY,EEOC:
My nomination as Chairman represents this Administration's
acknowledgement of, and response to, one criticism: tt.at in
the past,there has not been sufficient recognition of the
Hispanic community in high policy .making positions of the
EEOC. However, I can assure you th~t, as Chairman, I will be
committed first to learning the specific concerns of every
group that believes it:has not been served fairly by EEOC, and
then acting promptly to improve service to all of these
groups.
�The Role of the Commission Meetings
Q.
The Commission has been criticized for failing to hold regular
open meetings during the previous Administration and for
making many decisions privately, by notation vote, without
opportuni ty for the public to hear discusslons of policy
issues.
As Chairman, what would be your policy, regarding
commission meetings?'
A.
The Government in. the Sunshine Act requires that the
Commission, except in limited circumstances, conduct open
meetings.
The purpose of this requirement is to encourage
accountability.
However, these meetings should not become
mere pro forma ratification of positions adop't:ed prior to the
meeting. I believe the role of the Commission meetings should
be to do the work of the Commission in an open forum, where
the Commissioners themselves discuss the issues and seek to
reach a consensus.
5
�Enforcement Policy in Cases Against Public Employers
Q.
In 1991, the Commission extended its enforcement. policy,
requiring all cases in which cause is. found and conciliation
fails to include required Commission litigation authorization
for cases involving public employers, before referring such
cases to the Department of Justice. Since Title VII and the
ADA authorize the Department of Justice, not EEOC to conduct
litigation against such employers,. do you think this policy
should be continued?
.
A.
In recent years, the Department of, Jus,tice litigated very few
EEOC cases.
It is my unde~standing that the current policy
was adopted in the hope that the Department would, be more
receptiv.e to EEOC cases if they carne directly from the five
member Commission.
In this Administration,
with the
Department of Justice taking a much more active role in
litigating discrimination cases, it may not be necessary to
continue to route these cases through the Commission.
�Compliance Policy 'Statement
Q.
In 1986, the Commission adopted a policy requiring that every
charge receive a "full investigation" in order to assure the
goal of full relief for victims of discrimination.
Do you
believe that this policy effectively carries out the
Commission's mission, and should it be continued?
A.
There are a few' different ways to approach your question.
St ctly as a matter of law, there is no requirement that EEOC
investigate all charges filed under ADEA or EPA. While Title
VII, and thus the ADA, require an investigation, the law does
not define what must be done nor does it require that a "full"
investigation be done of each and every charge.
While I agree with the " policy's commitment to thorough,
focused and expeditious investigation of charges, I believe
that
this policy must be modified for the Commission to become
more effective.
The policy unduly limits the discretion of
the Commission's District Directors in the field to determine
the scope of investigations.
Field Directors' hands -on
experience in conductir.g investigations and their direct
access to charging parties and respondents puts them in the
best position to determine whether extensive investigation is
necessary or whether a narrowly tailored investigation is more
appropriate.
Further, the requirement to treat every investigation alike
provides no incentive to focus limited investigative resources
in the most efficient manner.
Field offices should operate
under general guidelines, but should be allowed to make
judgments
about
the
necessity
of
taking
particular
investigative steps.
Since this policy was adopted, the Commission has experienced
a significant yearly increase in ~he number of charges filed,
as a result of the Americans with Disabilities Act, the Civil
Rights Act of 1994, the national 'focus on sexual harassment
and other causes, with no corresponding increase in staff and
resources. The combined result of increased charges and the
ful.l investigations policy has been a serious 'increase in the
backlog of charges to be processed.
Without ~ significant
increase in staff, some adjustment to the full investigation
policy will be necessary.
�EEOC's Technical Assistance Role
Q.
Title VII provided in 1964, and.t~e Congress reiterated in the
Americans with Disabilities Act of 1990 and the Civil Rights
Act of 1991, Commission responsibilities for providing
technical assistance to aid compliance. How do you view the
EEOC's role in providing such assistance?
A.
I want to emphasize my belief that EEOC's mandate. to eliminate
discrimination and to achieve equal 'employment opportunity
requires the Commission to undertake additional, helpful
activities, in addition to its enforcement and litigation
action.
I belieye that providing clear and understandable
information on legal rights and legal obligatioris to protected
groups and, to employers, and technical assistance to aid
compliance, through printed materials, training programs,
public presentations, response to public inquiries and other
positive measures is as essential as enforcement activity to
achieve the goals. of the anti-discrimination laws.
�Federal Affirmative ACLion Requirements
Q.
EEOC is responsible for providing guidance on and monitoring
federal agencies' affirmative action programs. The Commission
has issued directives' requiring agencies to submi t reports
containing work force data, analyses of employment practices
that impede opportunities for underrepresented groups and
action steps to improve opportun.ities.However, reports of
the General Accounting Office indicate that the representation
of women and minorities in Federal agencies does not reflect
their representation in the qualified labor force and is
particularly low in middle and upper job levels. The GAO also
has criticized EEOC for, approving agency plans that do not
include ,the required data or analyses, and generally, for
failure to use its authority to require meaningful affirmative
action plans.
~ow do you see the Commission'S role in this
area?
A.
It is my understanding that the affirmative action directives
issued by EEOC do require result-oriented actions, not mere
reporting of data.
However, I also understand that since
these directives and reporting requirements were established,
EEOC staff responsible for monitoring federal programs has
been greatly reduced.
The federal government should b~ a model equal employment
opportunity employer and EEOC must demonstrate leadership and
commitment in directing and monitoring meaningful agency
programs that are accountable for, results,
not merely
submission of reports.
With the ,abolition of the Federal Personnel Manual and its
numerous restrictions on personnel policies, this is an
opportune time to develop innovative personnel practices to
achieve Federal affirmative action goals.
The Commission
should assert strong leadership to help reach these goals.
It is extremely important that the Commission strongly assert
its leadership role in the development of federal equal
employment opportunity policy. This includes working closely
with other federal agencies to coordinate the development of
policy priorities and in insuring that those policies are
consistently carried out. As Chairman of the Commission, it
is important that I personally communicate the importance of
the coordination function to other agenc'ies and lend my
support when disputes come up that cannot be rcesolved at the.
staff level.
�1984 Enforcement Policy Statement
Q.
In 1984,
the Commission adopted an" enforcement policy
statement providing that the Commission would review every
cau"se determination and finding of violation for potential
litigation where conciliation was unsuccessful. The rationale
for this policy was that every finding of discrimination was
equally worthy for litigation.
This policy has been
criticized as
seriously weakening
the
impact
of
the
Commission's litigation effort and failing to use limited
resources most effectively.
What are your views on this
policy?
A.
First, I would question the premise that every finding of
discrimination is equally worthy for Commission litigation.
Given its limited resources, the Commission must establish
litigation priorities.
An important priority should be
litigation that in itself, or by setting precedent, will have
the greatest impact for the greatest number of people.
I
also question whether the
Commissioners should be
responsible for reviewing every litigation decision.
The
Commission has Field Office Directors and 'an Office of General
Counsel with Regional attorneys in the field who have day to
day experience in litigation.
They should be empowered to
determine whether 'or nota particular case should be referred
to the Commission.
They should only be required. to submit
those cases that they feel should be litigated, and cases
raising novel or complex issues. that· requ"ire the input of the
Commissioners.
'
Allowing discretion in submission of cause cases to the
Commission
for
litigation
also
will
greatly
improve
efficiency.
The present Enforcement Policy requires the
General Counsel to submit voluminous documents regarding each
.case to the Commission.
It is virtually impossible for any
Commissioner to read all these documents, so Commissioners are
usually dependent on a brief summary and staff recommendations
on whether or not to approve.
If the Commission only had to
review case findings where litigation is recommended by the
Office of General Counsel and the Regional Attorneys and those
raising novel or complex issues, its deliberations would be
much more meaningful, and paperwork burdens would be greatly
reduced.
�to~
Reestablishing Commission Leadership in the civil Rights community
Q.
EEOC has been widely criticized for abandoning its civil
rights leadership role during the previous Administrations.
As Chairman, how would you address these criticisms?
A.
In order for EEOC to reassert a leadership role in the civil
rights community, the Commission must become more effeqtive in
enforcing the equal employment, laws. It also must become more
visible, vocal and responsive.
,
'
As Chairman, it will be 'my responsibility, by personal
example, to' set the standard. In the past, when the attention
of the country has been focussed on issues such as sexual
harassment or age discrimination and when th~ magnitude of the
problem of discrimination has been highli'ghted by clear
factual demonstrations, the Americ.an people and business have
responded.
I believe it will be my responsibility to keep
equal' employment issues in the public eye, to' widely
disseminate in public forums information people need to know
concerning their rights, and to provide effective processing
of the increasing charges that inevitably follow as public
awareness increases.
I will also engage the civil rights
community, ,discuss the st~engths and weaknesses of the
commission in serving our customers, and work with them to
identify better approaches that will improve the delivery of
services.
'
Each of the Commissioners should welcome public scrutiny and
eagerly engage in and invite discussions of controversial
; issues. The CoIDinission can only regain credibility if its top
leadership is willing to articulate its ,unqualified support
for vigorously enforcing the EEO laws, its passionate belief
in the justice of ·those laws, and its tireless commitment to
continuous improvement of employment opportunities for all.
,l
�Relationship with the Fair Employment Practices
Agencies (FEPAs)
Q.
EEOC provides a sUbstantial amount of funding to state and
local fair employment agencies to assist in processing
employment discrimination charges. There has been criticism
regarding the lack of effective monitoring and quality control.
to assure that these agencies fo~low consisten~ policy and
procedures in processing charges.
As Chairman what steps
would you take to address these criticisms?
A..
Clearly, with the increased volume of discrimination charges
and limited resources, it is essential that the Commission
give priority to improving its partnership with these
agencies. The present system should be evaluated and problems
identified.
There may be need, to audit 'some 'agencies'
operations. The Commission should try to provide guidelines
and training for these agencies, to assure consistent policies
and procedures in investigations. 'The current payment system
also might be evaluated, to see if a more effective system
could be developed.
�..
~
- ,1
Coordination Between EEOC and OFCCP
Q.
What kind of coordination has taken place between the
Commission and the Office of Federal Contract Compliance
Programs (OFCCP)?
A.
The Commission and OFCCP have worked very closely together.
Strong working relationships have been developed between EEOC
andOFCCP staff at headquarters and in the field offices of
both agencies.
. In 1981, the two agencies entered into a
memorandum of understanding to coordinate the processing of.
charges filed with OFCCP.
Under the terms of the MOU,
individual charges of discrimination that ,are also covered by
Title VII are referred to the Commission for processing under
Title VII. OFCCP retains systemic cases for processing. The
MOU
has
been
instrumentalin
facilitating
ongoing
communication between the two agencies.
�Family and Medical Leave, ADA and Title VII
Q:
Does a disabled employee who needs disability-related medical
leave have to elect between the FMLA and the ADA, or is s/he
entitled to the protections of both laws at the same time?
A:
The ADA continues to apply in full force along with the FMLA,
so eligible/qualified employees
are
entitled to
the
protections of both laws. Among other things, this means 'that
an employee working part-time under the FMLA also is entitled
to reasonable accommodations to perform the part-time job
under the ADA.
�\
,.1
Family and Medical Leave, ADA and Title VII
Q:
Does the FMLA's 12-week annual allotment of medical leave mean
that employers may deny requests for more than 12 weeks' leave
under the ADA, because it would be an undue hardship to the
employer?
A:
NO.
It is not automatically an undue hardship to give more
than 12 weeks of leave in one year a s a reasonable
accommodation.
Employers
must
make
an
independent
determination of undue hardship under the ADA, considering the
total leave request (14 weeks, 16 weeks,. etc.) . Employers may
consider the cost and disruption of leave already taken under
the FMLA as one of many factors relevant to undue hardship
under the ADA.
I'
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Family and Medical Leave, ADA and
Ti~le
VII
Q:For purposes of maternity leave, does Title VII offer some
protections that may exceed FMLA?
A:
YES.
Title VII requires employers ,to 'treat pregnancy and
related conditions like any other short-term disability. .If
an employer provides paid short-term disability le'ave, it must
also do so for pregnancy.
Similarly, if ,an employer in
practice gives short-term disability leave to individuals
employed less than one year, it also must do so for pregnant
women. Under the FMLA, leave is available only to individuals
employed at least 12 months, and leave may 'be unpaid.
�"
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Family and Medical Leave, ADA and Title VII
Q:
Which employers will be covered by the FMLA,
Title VII?
the ADA,
and
A:
Only those employers with 50 or more employees are covered by
all three laws.
The FMLA covers employers' with 5.0 or more
employees, and Title VII and the ADA (after July 26th) cover
employers with 15 or more employees.
�,
,.
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Family and Medical Leave, ADA and Title VII
Q:
Shouldn't the EEOC be coordinating with' the Department of
Labor about ,the overlap between the FMLA, the ADA and Title
VII?
.
A:
YES.
It is my understanding that the EEOC has coordinated
with the Department of Labor from the start of the FMLA
rulemaking process.
During the 'Spring of 1993, the EEOC
commented on position papers and a draft of the FMLA interim
final
ruler
and, also met· with Department
of
Labor
representatives.
In December, 1993, the EEOC filed formal
written comments about the interim final-rule, and followed up
with another meeting and a short letter.
That coordination
will continue. 'I also plan on looking into. the feasibility of
issuing an enforcement guidance discussing ADA and Title VII
issues in relation to the FMLA.
�...,
"
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Issue: The ADA and Collective Bargaining Issues Under the National
Labor Relations Act
Q.
There are some potential conflicts between the National Labor
Relations Act (NLRA) , in terms of what might be required under
a
collective bargaining agreement
(CBA) ,
and certain
requirements" under the ADA. What do you see as the primary
areas of conflict between these two statutes?
A.
One potential conflict, involves reasonable accommodations
required under the ADA that are inconsistent with the terms of
a collective bargaining agreement. The ADA requires employers
to make reasonable accommodation to the known physical or
mental limitations of qualified individuals with disabilities
unless it would be an undue hardship to do so.
Under the
NLRA, however, an employer cannot change working conditions of
employees without bargaining with the union, nor can it
unilaterally change the terms and conditions of employment
contained in a CBA without the union's consent.
certain accommodations, such as providing a ramp or an
interpreter, would not effect a "material, substantial or
significant" .change in working conditions, and thus could be
unilaterally implemented by an employer. However, requested
accommodations that conflict with established employment
practices,
such as seniority systems or defined
job
claisifications, would more likely be considered a change in
terms and conditions of employment that must be bargained
'over.
Failure to do so could give rise to an unfair labor
practice charge under the NLRA.
The legislative history indicates that the terms of a CBA are
relevant to but not determinative of whether an accommodation
will constitute an undue hardship under the ADA.
This is a
complex area, and EEOC will be studying how to best harmonize
and resolve these conflicting statutory requirements.
A second potential conflict involves the ADA's confidentiality
requirements regarding medical information and an employer's
obligation under the NLRAto provide the labor organization
with the information necessary to enable it to effectively
carry out its, collective bargaining responsibilities.
In
situations where a union is bargaining over the implementation
of a reasonable accommodation, a union may have need for
certain medical information that is considered confidential
under the .ADA. Specifically, the ADA stc;ltutorily prohibits an
employer from releasing medical information except to a list,
of certain designated individuals which does not include
unions.
Whi Ie competing lega:l· arguments can be made, the
position that arguably best harmonizes these conflicting
statutory requirements is to allow a union to be given the
minimum amount of confidenti~l information necessary for
bargaining over a reasonable accommodation.
EEOC will be
further considering this issue.
�...
1
Issue: The ADA and Collective Bargaining Issues Under the National
labor Relations Act
Q.
In attempting to resolve the arguably. conflicting requirements
of the ADA and the NLRA, has the EEOC been working with the
. National Labor Relations Board (NLRB)?
Has the EEOC also
sought input. from other affected groups such as labor
organizations or unionized employers? .
A.
Yes, it is my understanding that EEOC staff have had
discussions with the NLRB. EEOC staff have recently been in
contact with them again about the possibility of a jointly
issued document that would address how the conflicts between
the NLRA and the ADA can be resolved.
If the NLRB does not
choose ,to pursue this type.of agreement, the EEOC will likely
develop a regulation on its own stating how it will resolve
charges raising these types of conflicts.
The EEOC received many comments about the ADA 'and collective
bargaining issues from employers, unions and advocacy groups
when it was developing its ADA regulations in 1991. In light
of the complexity of the issues and the need for further
study, the ADA regulations did not attempt to provide detailed
guidance on this subject area.
Various groups have
subsequently expressed their desire for more detailed guidance
on these issues and their willingness to provide EEOC with
their views and concerns. EEOC will be seeking the input of
all affected groups.
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Issue: Coordination and Overlap between section
Immigration Reform and Control Act of 1986 and
Prohibitions against National oriqin Discrimination
102 of the
Title VII's
Q.
There is some overlap between Section 102 of the Immigration
Reform and. Control Act of 1986 (IRCA), which prohibits
discrimination based on citizenship and national origin, and
Title
VII's
prohibition
against
national
orlgln
discrimination.
What type of coordination or joint efforts
are there between EEOC and Department of Justice's Office of
Special Counsel on these issues?
A.
EEOC has worked closely with the Office of Special Counsel
(OSC) , which is ·the office responsible for enforcing IRCA's
anti-discrimination provisions, from the beginning. In brief,
EEOC has jurisdiction over national origin discrimination
charges involving employers with 15 or more employees (this
includes citizenship requirements that have the purpose or
effect of discriminating on the basis of national origin).
OSC
has
jurisdiction
over
charges
of
citizenship
discrimination involving employers with four or more employees
and charges of national origin discrimination involving
emplqyers with between 4 and 14 employees. EEOC and OSC have
entered into a Memorandum of Understanding (MOU) making each
agency the agent of the other for purposes of receiving
discrimination
charges
and
providing
for
interagency
coordination of charge processing activities.
This ensures
that charges that are mistakenly filed with the wrong agency
will be forwarded to the correct agency with jurisdiction.
The MOU also allows for the coordination of investigations in
certain
circumstances
where
both
agencies
may
have
jurisdiction (for .example, when EEOC receives a charge
involving citizenship discrimination that also appears to have
the purpose or effect·' of discriminating on the basis of
national origin" EEOC would retain jurisidiction over the
national origin component, while referring the citizenship
component to OSC for processing) .
EEOC is a member of the Interagency Antidiscrimination
outreach Task ~orce, and thus has been involved in ongoing
efforts to 'educate both workers'and employers of their rights
and responsibilities under IRCA.
Since 1991, EEOC has
assisted the Office of Special Counsel with its grant programs
by reviewing grant applications by organizations seeking
appropriated funds to perform IRCA outreach and education .
. EEOC staff has also spoken on several occasions about EEOC's
enforcement of the national ori~in provisions of Title VII at
the IRCA Discrimination Training Seminars sponsored annually
by the Office of Special Counsel.
�ADEA
Q.
Do you favor the issuance of "no cause" letters under the ADEA? Don't such
letters prejudice the rights of charging parties?
A.
It is my understanding that "no cause" letters are not required by law. The
Commission could as a matter of discretion simply advise individuals that it is
terminating ,its proceedings.
There may be good' reasons for issuing "no cause" letters however: (i) the
simple notion of fairness in advising parties of cause or "no-cause"; (ii) having
consistent procedures under all EEOC-enforced statutes; (iii) assisting charging
parties in determining whether litigation is warranted; (iv) cause letters are given
more credence when employers know we also' issue "no-cause~' letters--this in
turn facilitates our efforts at voluntary resolution.
I would, however, certainly give serious thought to revising our process if
charging parties are in faCt prejudiced by the issuance of "no-cause" letters.
After all, chargin'g parties are supposed to receive a de novo procee>ding in court
under the federal employment discrimination laws. Perhaps there is some
middle ground that wquld both protect the interests of charging parties and
preserve EEOC's image as an impartial and objective enforcement agency.
.
1
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�ADEA
Q.
What would you do about the FAA's. Age-60 Rule if you were Chairman?
A.
My unde~standing is that EEOC has consistently urged the FAA to reconsider its
position on requiring certain airline pilots to retire from piloting at age-60. I have
not had an opportunity to learn in detail why the FAA has so far retained its
position.. It is my understanding, however,· that there may be other ways of
addressing airline safety than through the use of arbitrary age limits. If that is
the case I would take every opportunity to persuade the FAA to change its
position
2
�ADEA
.\
Q.
In Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993), the Supreme Court
discussed the circumstances under which adverse employment actions taken on
account of an employee's years of service would violate theADEA. What is
your opinion regarding the impact of the Hazen Paper case on ADEA
enforcement?
A.
The Court in Hazen Paper concluded that when an employer acts on factors
correlated with age, even those that are empirically correlated with age such as
pension- status or seniority, that does not necessarily equate with disparate
treatment on account of age.
At this juncture, it can't be determined what impact the Hazen decision will have
on ~DEA enforcement. That assessment will depend in large measure on how
the lower courts interpret Hazen. It is safe to say, however, that Hazen has not
made a plaintiffs burden in an age case any easier.
While I would want to further farlliliarize. myself with all aspects of the Hazen
decision, my tentativ~ belief is that the Commission should issue its view of the
decision in the hope that the lower courts will be influenced thereby.
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3
�ADEA
Q.
What has been the effect of the expiration of section 12(d) of the ADEA relating
to mandatory retirement at age 70 for tenured faculty?
A.
Section 12(d) was enacted in 1986 when mandatory retirement was made illegal
for most employees. Section 12(d) made it permissible for an institution of
higher education to require tenured faculty to retire at age 70. By statute,
section 12(d) expired at the end of 1993.
A study was performed by the National Research Council in 1991 to determine
whether the provisions of section 12(d) should be reenacted in 1994. The study
determined that there was no need for mandatory retirement in higher education,
as long as the institutions were permitted to offer attractive early retirement
packages to induce faculty to retire voluntarily.
.
'
Over the past six months, some colleges and universities have stated that the
expiration of section 12(d) will, have a significant adverse effect upon higher
education. Specifically, they argue that: (1) older faculty will continue to work
long beyond age 70, preventing younger faculty from attaining tenured status;
and (2) older faculty are far less productive than younger faculty.
The arguments raised by the colleges and universities are identical to the
arguments raised by private industry in 1986 when the age 70 cap on the ADEA
was being eliminated. It is clear that, at least in private industry, no such
ossification of the workforce has occurred. Recent studies have demonstrated
that the most productive employees (except in manual labor jobs) are usually the
older, more mature employees.
Some have contended that very few employees actually want to work even one
day longer than they need to. Once retirement finances are secured, most
people stop working.
Finally, significant alternatives to mandatory retirement exist, such as enhanced
voluntary early retirement programs and voluntary part-time (or emeritus) status
for older professors who want the status of professorial employment without the
burdens.
4
�"
ADEA
Q.
Should the Commission issue regulatory guidance under the Older Workers
Benefit Protection Act (OWBPA)? What is your position on specific OWBPA
issues such as the extent to which early retirement plans, severance pay plans,
retiree health plans, or long term disability plans can pay lower levels of benefits
to older workers than to younge,r workers?
A.
In Public Employees Retirement System of Ohio v. Betts, 492 U.S. 158 (1989),
the Supreme Court rejected. longstanding EEOC. interpretations relating to
employee benefits and determined that employee benefit plans were exempt
from the purview of the ADEA as long as such plans were not a method for
discriminating in non-fringe benefit aspects of employment. The-effect of the
Betts decision was to permit virtually any age-based differential in treatment in
the area of fringe benefits. Congress passed OWBPA to overrule Betts.
Title I of OWBPA, dealing with employee benefits, for the most part restored the
. law to its pre-Betts state.· Title II of OWBPA enacted specific rules for
determining the legality of waivers of ADEA rights.
While the Commission solicited public comment on OWBPA issues in 1992, no
regulatory guidance under OWBPA has to date been issued despite comments
. made by then Chairman Roybal of the House Select Committee on Aging urging
the Commission to issue guidance for the benefit of older workers and
employers. In my view when a statute is as complex as OWBPA, the public
likely needs and would no doubt benefit from EEOC guidance. Accordingly, I
would raise this issue with my fellow Commissioners in the hope ofobtaining a
consensus on issuing public guidance.
With regard to the specific issues raised, OWBPA is an extremely complicated
statute, taking into account ERISA law as well as EEO law. I would want to
study the issues involved in great detail before developing a specific position.
OWBPA analysis will be a high priority for me at EEOC.
5
�ADEA
Q.
Would an employer's harassment of an older employee constitute a,violation of
the ADEA? For example, would remarks such as "old people are slow and lazy"
or "you can't teach old dogs new tricks" give rise to an ADEA· claim?
A.
An employer is not permitted to harass an employee based upon age (or,
indeed, any of the other characteristics protected by civil rights laws). Whether
any particular words violate the ADEA would. depend upon the context of the
statements; the supervisory authority of the speaker, and the frequency of the
harassment.
'
.
.
6
�ADEA
Q.
Should the EEOC continue to exclude apprenticeship programs from the ADEA?
A.
I have been informed that in recent years the Commission has received several
inquiries relating to this issue and it appears that there remains a belief by some
that exempting such programs from coverage equates with blatant age
discrimination. There are policy implications on either side of the apprenticeship
issue. Changing technologies and market conditions are leaving older workers
not only without jobs, but often without prospects for future jobs. Their skills
have become obsolete. Additionally, many women seek to enter or reenter the
workplace after having ~aised a family or because there is a need for additional
family income. Such persons may often be deprived of an apprenticeship
opportunity solely because ofan age barrier. On the other hand. young persons
who cannot afford higher education, frequently minorities, look to the
Commission interpretation as a way of assuring that there is a viable means of
job training that may lead to meaningful employment.
This is obviously a very important 'issue and one that I think warrants further
consideration by the Commission.
7
�ADEA
Q.
What is your position on adverse impact theory under the ADEA?
A.
Discrimination can result under the adverse impact theory from neutral
employment policies and practices, which are applied uniformly to all employees
and applicants, but which have the effect of disproportionately excluding or
otherwise adversely affecting certain groups. This is known as the adverse or
disparate impact theory of discrimination. Both the Commission, in 29 C.F.R. §
162S.7(d), and numerous lower courts have applied the adverse impact theory
to cases arising under the ADEA. However, the Supreme Court in Hazen Paper
Co. v. Biggins, 113 S. Ct. 1701 (1993), recently noted that it has never
addressed the specific question of whether the theory applies to cases under the
Act. This decision may signal that the Court will disapprove the use of the
adverse impact theory under the ADEA.
In my view, the Commission should restate its support for the theory and
continue to apply it unless the Supreme Court holds to the contrary.
8
�ADEA
Q.
Sections 9201-9204 of the Omnibus Budget Reconciliation Act of 1986 (OBRA
86}amended ERISA and the Internal Revenue Code, and added section 4(i) to
the ADEA, making it ~lIegal in most cases for' pension plans to deny pension
benefit accruals on account of age. . EEOC published proposed OBRA 86
. regulations on. November 27·, 1987 and the Department of the Treasury
published proposed OBRA 86 regulations on April 11 1988. When will final
regulations be promulgated?
A.
OBRA 86 gave lead regulatorY authority' to the Department of the Treasury.
Section 9204(d) of OBRA 86 mandated that final regulations of EEOC, Treasury,
and the Department of Labor be consistent with each other. (Labor has
indicated that it will not' issue OBRA 86 regulations).
It is my understanding that the Commission has been ready since early 1988 to
issue final regulations, and has been urging the Department of the Treasury
since 1988 to develop its final regulatory guidance on OBRA 86. In light of the
OBRA 86 language on coordination and consistency ofre~ulations, it would
seem impossible for the Commission to issue final regulations until Treasury is
ready to issue its own regulations. If confirmed, I will make every effort to
encourage action by Treasury.
9
�ADEA
O.
Is it permissible for employers to deny pension plan participation to persons who
are hired at a later age (e.g., within five years of the pension plan's normal
retirement age)?
A.
ADEA regulations at29C.F.R. § 1625.10(f)(1)(iii)(A), promulgated in 1979, state
that an employer is permitted to exclude from participation persons hired within
five years of normal retirement age. Further, the regulation states that pension
plans exempt from ERISA, such as governmental plans and church plans, are
permitted to exclude from participation persons hired more than five years before
normal retirement age if such exclusion is justified by age-related cost
considerations.
When OBRA 86 was passed (see O&A on pension benefit accruals),section
9203 amended ERISA and the Internal Revenue Code to delete the "five year
rule" on pension plan exclusion. The ADEA, however, was not amended in this
regard. In the Cornl1lission's November 27, 1987 NPRM, the Commission
indicated that the·· regulation covering participation was no longer valid.
Therefore, it has been the Commission's view since the end of 1987 that it ·is
never permissible for cit pension plan to exclude a person from participation
based upon age.
10
�ADEA
Q.
Please discuss in detail your views on the technical provisions of the ADEA with
regard to early retirement incentive plans, severance pay plans, long term
disability plans, and retiree health benefits.
A.
A significant number of employers have used voluntary early retirement incentive
plans to lessen the number of persons who must be fired during a reduction in
force or to encourage higher paid individuals to leave the workforce voluntarily.
Similarly, employers often use severance pay and retiree health benefits to
cushion the blow of involuntary layoffs. Long term disability is useful to
employees who are, temporarily or permanently, unable to perform their jobs.
The main point of difficulty in all such plans occurs when employers provide a
higher level of benefits to younger workers than to older workers.
The provisions of the ADEA as amended by the OWBPA raise several serious
questions of policy and statutory interpretation, including the definition of "a
voluntary early retirement incentive plan consistent with the rele'fant purpose or
purposes of this Act" in section 4(f)(2)(B)(ii). After I have had a chance to study
the OWBPA amendments in detail, I will give employee benefits questions high
priority in light of the increased use of such plans. Until such time, I do not feel
it appropriate to comment further on these issues without time to consider the
legal and policy ramifications of the OWBPA.
11
�ADEA
Waivers Issues
Q.
What is the legal status of the consideration for a waiver if the EEOC finds that
the waiver is invalid?
A.
In cases decided since the Older Workers ,Benefit Protection Act (OWBPA)
waiver standards went into effect in October 1990 for the ADEA, the Courts of
Appeals are split on this issue. The Seventh Circuit in Oberg v. Allied Van Lines
held in 1992 that former employees are not required to tender back or repay the
consideration that the employer provided in return for an employee waiver and
retention by, the employee does not constitute ratification of an invalid waiver.
The Court suggested that such consideration would be a setoff against any
damages recovered by the plaintiffs. The Fifth Circuit in Wamsley v. Champlin
Refining and' Chemicals (1993) held to the contrary. Wamsley held that an
employee who chooses to retain and not tender back to the employer the
, consideration for the waiver or release of ADEA rights has ratified, ,the agreement
whether valid or invalid and must abide by its terms.
In litigation, the EEOC has agreed with the position taken by the Seventh Circuit
in the Oberg case.'
12
�ADEA
Waivers Issues
Q.
Does the language in subparagraph (F)(ii) and (H) of ADEA subsection 7(f) -
"other employment termination program offered to a group or class of employers"
-- include involuntary termination such as reductions-in-force?
A.
While commentors to the EEOC Notice on OWBPA have been split of this issue,
the weight of the legislative history and the purposes of the passage of the
OWBPA support the position that involuntary programs were to be included urider
the statutory requirements for valid waivers or releases of ADEA rights. Congress
wanted to insure that when waivers were offered to a group or class of
employees, those persons would have sufficient information to decide whether
signing a waiver was in their best interest. This policy concern would apply to
involuntary terminations as well as voluntary ones.
13
�ADEA
Waivers Issues
Q.
Mayan employee validly waive ADEA rights within the 21- or 45-day
consideration period, (as applicable), of Section 7(f)(1) and shorten the 7-day
revocation period following the execution of the waiver.
A.
The statutory requirement states that the 21-day or 45-day periods within which
to consider the agreement must be given to the employee(s). If an employee
wishes to take less than this full period to consider the agreement and sign an
ADEA waiver, the statute does not appear to prohibit this action. See the
discussion to that effect between Senators -Ha.tch and Metzenbaum .at 136 Congo
Rec. 813807-8 (daily ed. September 25,1990). Of course, an employer asserting
the validity of a waiver agreement has the burden of demonstrating that the full
minimum time to consider the agreement was given the employee and that the
"employee's decision to accept such shorter period of time is knowing and
voluntary." (Id.). The seven day revocation period following-the execution of an
agreement cannot be shortened under any circumstances. .
14
�ADEA
Waivers Issues
Q.
Does the ADEA as amended by the OWBPA require that separate or additional
consideration be offered in exchange for a waiver of ADEA rights in connection
with a reduction in force to those persons Who have claims pending unrelated to
the reduction in force?
A.
Opinions differ as to whether the same consideration may be offered by the
employer in exchange for all employee claims and/or rights that may arise or have
arisen under the ADEA, or whether separate and additional consideration must
be offered for a waiver of separate and distinct ADEA rights and/or claims that
may be pending against the employer. It is my understanding that EEOC staff is
studying this issue with regard to policy and potential litigation.
15
�ADEA
Q.
Is an agreement for compulsory arbitration· of an age discrimination claim
enforceable under the ADEA?
A.
In Gilmerv.lnterstate/Johnson Lane CorP., 500 U.S. 1 (1991), the Supreme court
held that a claim under the Age Di~criminationin Employment Act (ADEA) can be
subjected to compulsory arbitration pursuant to an arbitration clause set forth in
a required registration application with the New York Stock Exchange. While the
Gilmer holding may directly affect an individual's right to file suit under the ADEA
in the above circumstances, it does not preclude the individual from filing a
charge with the Commission. The. Commission, of course, is empowered to
combat age discrimination even absent a charge -- it possesses independent
investigation and enforcement authority under the ADEA.
The Gilmer case was decided on the basis of the ADEA prior to its amendment
by the OWBPA, which contains specific minimum criteria for a valid ADEA waiver.
The specific OWBPA standard proscribing prospective waivers of rights (ADEA
§ 7 (f)(1)(C» may well be at issue in a Gilmer setting because the right to bring
a private action and the right to a jury trial are waived prior to the arising of any
.
dispute by an employee subject to compulsory arbitration.
In addition the Gilmer case predated the passage of the Civil' Rights Act of 1991,
section 118 of which encourages the use of alternative dispute resolution
procedures, but makes clear in its legislative history that the employee agreement
to such procedures must follow, not precede, the dispute at issue. This is an
important and controversial area. of the 'law that I will carefully assess.
..
(
I am troubled by the implications of the Court's decision in Gilmer, especially
when I see reports that companies are requiring employees and applicants for
employment to sign agreements similar to the one in the Gilmer case. These
agreements purport .to bind even applicants for employment to forego their
statutory right to file a charge of discrimination with EEOC if, at some time in the
future, they believe that they have been victimized by discrimination.
I have not seen anything that indicates what standards will be used by arbitrators
under these agreements to determine whether the law has been violated; I
haven't seen anything that indicates what training these arbitrators have to decide
issues of discrimination law; and ~ haven't seen what remedies will be awarded
to those who prevail in these arbitration hearings. It seems to me that this
approach is fraught with problems and deserves critical evaluation by the EEOC
as soon as possible.
.
16
�ADEA
Q.
What is the current standard for determining if liquidated damages should be
awarded in an ADEA case?
A.
Under the ADEA, an aggrieved person is entitled. to an award of liquidated
damages in an ADEA action if it is determined that the employer's conduct was
willful. In 1993, the Supreme Court again addressed this issue in Hazen Paper
Co. v. Biggins, where it confirmed that the standard for assessing willfulness in
. disparate treatment cases where age influenced the employer's decision on an
ad hoc individualized basis is whether the employer "knew or showed reckless
disregard" for whether its conduct violated the Act.
17
�ADEA
Q.
What is your opinion of the proposed legislation that would amend the ADEA to
permit all state and local governments to use age as a basis for hiring and retiring
law enforcement officers, correction officials; and firefighters?
A.
As you know, the 1986 ADEA amendments created a temporary exemption for
age-based hiring and retirement decisions in public safety occupations through
December 31, 1993. At the same time, Congress charged the EEOC and the
Department of Labor with conducting a study to determine whether tests are
available that could replace the use of age as a predictor of job performance.
In October 1992, the mandated Study -- organized and structured by researchers
from Penn State University -- was sent by the two agencies to Congress. The
Study concluded that (1) age is a poor predictor of performance in public safety
occupations, (2) practical tests are currently available that are better predictors,
and (3) the temporary exemption should be permitted to expire as scheduled.
Because some members of Congress felt that the Study's standards for testing
public safety officers were not sufficiently precise and the elimination of the
exemption would subject state and local governments to uncertainty, expense and
differing results in litigation, there is currently proposed legislation to reinstitute the
exemption for public safety officers (without an expiration date). The proposed
legislation also requires the EEOC to further study and report on the development
of performance standards, alternative assessment methods, and the
administration and use of performance tests of public safety officers as well as to
develop guidelines on the use and administrat,ion of such tests.
The Administration supports the proposed exemption but only on a temporary
four-year basis. I believe that this issue is so complex and of such importance
to both the public and those employed or seeking employment as public safety
officers that a temporary exemption with further study and identi'fication of
performance standards is a reason~ble approach to this subject matter.
18
'
�ADEA
Q.
Has the Commission done enough to pursue cases involving systemic
employment bias, especially with regard to discriminatory reductions in force?
A.
As a result of the trend during the past five to ten years toward major corporate
restructuring and downsizing, the Commission has received a significant number
of class charges, many alleging age discrimination in a reduction in force.
The Commission of course should never reject a case simply because the
expected relief available is small, or protects the rights of only a few individuals.
On the other hand, I am firmly committed to taking an active role in class action
suits. The Cornmission should do everything possible to make larger employers
pay the price for discrimination against ·classes of individuals.
.
I would note that even though in the recent Supreme Court decision in Hazen
Paper Co. v. Biggins, 113 S. Ct. 1701 (1993), the Court arguably made it a little
more difficult to show age discrimination in a disparate treatment context, th~
Commission should devote a significant portion of its time and resources to
penalizing age-based actions against a large class of employees.
Because reductions in force so often target older workers, perhaps the time is
right to flesh out EEOC's longstanding enforcement position that it is unlawful to
make differentiations ba~ed on the average cost of employing older workers as
a group. If confirmed, this will be one of my priorities.
19
�ADEA
Q.
What is your view on the applicability of the Civil Rights Act of 1991 (CRA 91)
amendments to enforcement under the ADEA?
A.
It is my understanding that 'whenever possible, the Commission seeks to enforce
the substantive provisions under the ADEA. in the same manner that it enforces
comparable provisions of Title VII. However, it is also my understanding that
there may be legal impediments precluding the Commission from applying certain
of the CRA amendments to the ADEA. Those who hold this view point out that
many of the CRA amendments specifically reference Title VII while omitting any
reference to the ADEA, except in one or two areas. If I am confirmed, I will
carefully review this matter. If it appears that the CRA of 91 does not affect the
ADEA in areas where the two statutes previously were consistent, I will not
hesitate to urge this body to offer legislation that will cure the problem.
20
�ADEA
Q.
A.
Has the Commission done enough to pursue cases involving systemic
employment bias, especially with regard to discriminatory reductions in force?
,
Based on newspaper articles that I have read, there appears to have been a
substantial amount of major corporate restructuring and downsizing in recent
years. I have seen many reports suggestirig that older higher paid workers often
bear the brunt of these actions. If these articles are accurate, I would assume the
Commission has received many charges in this area and probably many that are
in the nature of. class charges.
I cannot say with certainty what the Commission's prior record has been in the
context of reductions in force. In my view, however, the Commission must strive
for greater efficiency and greater impact in using its limited resources.
Consequently, I,would like to see the Commission target systemic discrimination
thereby making clear that a'high price will be paid for such conduct. If employers
are in fact targeting older workers when they conduct reductions in force, I would '
strongly support committing a substantial part of the Commission's resources to
alleviating this problem:
.
21
,
�
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
Stephen Warnath - Civil Rights Series
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Stephen Warnath
Civil Rights Series
Date
A point or period of time associated with an event in the lifecycle of the resource
1993-1997
Is Part Of
A related resource in which the described resource is physically or logically included.
<a href="http://clinton.presidentiallibraries.us/items/show/36406" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Description
An account of the resource
Stephen Warnath served as Senior Policy Analyst in the Domestic Policy Council. The Civil Rights Series includes material pertaining to the Civil Rights Working Group and topics such as affirmative action, English only, age discrimination, religious freedom, and voting rights. The records also include confirmation briefing materials for Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) nominees. The records include briefing papers, correspondence, schedules, testimony, reports, clippings, articles, legislative referral memoranda, and memos. The majority of the memos are internal between the Domestic Policy Council staff and the staff of the Equal Employment Opportunity Commission, and between the Domestic Policy Council staff and Congress.
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Publisher
An entity responsible for making the resource available
Clinton Presidential Library & Museum
Format
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Adobe Acrobat Document
Extent
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134 folders in 13 boxes
Text
A resource consisting primarily of words for reading. Examples include books, letters, dissertations, poems, newspapers, articles, archives of mailing lists. Note that facsimiles or images of texts are still of the genre Text.
Original Format
The type of object, such as painting, sculpture, paper, photo, and additional data
Paper
Dublin Core
The Dublin Core metadata element set is common to all Omeka records, including items, files, and collections. For more information see, http://dublincore.org/documents/dces/.
Title
A name given to the resource
[Equal Employment Opportunity Commission Confirmation Briefing Materials] [4]
Creator
An entity primarily responsible for making the resource
Domestic Policy Council
Steven Warnath
Civil Rights Series
Is Part Of
A related resource in which the described resource is physically or logically included.
Box 8
<a href="http://www.clintonlibrary.gov/assets/Documents/Finding-Aids/Systematic/Warnath-DPC-Civil-Rights.pdf" target="_blank">Collection Finding Aid</a>
<a href="http://catalog.archives.gov/id/641686" target="_blank">National Archives Catalog Description</a>
Provenance
A statement of any changes in ownership and custody of the resource since its creation that are significant for its authenticity, integrity, and interpretation. The statement may include a description of any changes successive custodians made to the resource.
Clinton Presidential Records: White House Staff and Office Files
Format
The file format, physical medium, or dimensions of the resource
Adobe Acrobat Document
Publisher
An entity responsible for making the resource available
Clinton Presidential Library & Museum
Medium
The material or physical carrier of the resource.
Reproduction-Reference
Date Created
Date of creation of the resource.
2/8/2012
Source
A related resource from which the described resource is derived
641686-equal-employ-opp-comm-conf-briefing-materials-4
641686