[House Hearing, 116 Congress] [From the U.S. Government Publishing Office] EXAMINING THE POLICIES AND PRIORITIES OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) AND THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP) ======================================================================= HEARING BEFORE THE SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES COMMITTEE ON EDUCATION AND LABOR U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED SIXTEENTH CONGRESS FIRST SESSION __________ HEARING HELD IN WASHINGTON, DC, SEPTEMBER 19, 2019 __________ Serial No. 116-39 __________ Printed for the use of the Committee on Education and Labor [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: www.govinfo.gov or Committee address: https://edlabor.house.gov __________ U.S. GOVERNMENT PUBLISHING OFFICE 37-857 PDF WASHINGTON : 2021 -------------------------------------------------------------------------------------- COMMITTEE ON EDUCATION AND LABOR ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman Susan A. Davis, California Virginia Foxx, North Carolina, Raul M. Grijalva, Arizona Ranking Member Joe Courtney, Connecticut David P. Roe, Tennessee Marcia L. Fudge, Ohio Glenn Thompson, Pennsylvania Gregorio Kilili Camacho Sablan, Tim Walberg, Michigan Northern Mariana Islands Brett Guthrie, Kentucky Frederica S. Wilson, Florida Bradley Byrne, Alabama Suzanne Bonamici, Oregon Glenn Grothman, Wisconsin Mark Takano, California Elise M. Stefanik, New York Alma S. Adams, North Carolina Rick W. Allen, Georgia Mark DeSaulnier, California Lloyd Smucker, Pennsylvania Donald Norcross, New Jersey Jim Banks, Indiana Pramila Jayapal, Washington Mark Walker, North Carolina Joseph D. Morelle, New York James Comer, Kentucky Susan Wild, Pennsylvania Ben Cline, Virginia Josh Harder, California Russ Fulcher, Idaho Lucy McBath, Georgia Van Taylor, Texas Kim Schrier, Washington Steve Watkins, Kansas Lauren Underwood, Illinois Ron Wright, Texas Jahana Hayes, Connecticut Daniel Meuser, Pennsylvania Donna E. Shalala, Florida William R. Timmons, IV, South Andy Levin, Michigan* Carolina Ilhan Omar, Minnesota Dusty Johnson, South Dakota David J. Trone, Maryland Fred Keller, Pennsylvania Haley M. Stevens, Michigan Susie Lee, Nevada Lori Trahan, Massachusetts Joaquin Castro, Texas * Vice-Chair Veronique Pluviose, Staff Director Brandon Renz, Minority Staff Director ------ SUBCOMMITTEE ON CIVIL RIGHTS AND HUMAN SERVICES SUZANNE BONAMICI, OREGON, Chairwoman Raul M. Grijalva, Arizona James Comer, Kentucky, Marcia L. Fudge, Ohio Ranking Member Kim Schrier, Washington Glenn ``GT'' Thompson, Jahana Hayes, Connecticut Pennsylvania David Trone, Maryland Elise M. Stefanik, New York Susie Lee, Nevada Dusty Johnson, South Dakota C O N T E N T S ---------- Page Hearing held on September 19, 2019............................... 1 Statement of Members: Bonamici, Hon. Suzanne, Chairwoman, Subcommittee on Civil Rights and Human Services.................................. 1 Prepared statement of.................................... 3 Comer, Hon. James, Ranking Member, Subcommittee on Civil Rights and Human Services.................................. 4 Prepared statement of.................................... 6 Statement of Witnesses: Brown Barnes, Ms. Cindy, Director, Education, Workforce, and Income Security, U.S. Government Accountability Office..... 29 Prepared statement of.................................... 31 Dhillon, Ms. Janet, Chair, U.S. Equal Employment Opportunity Commission................................................. 19 Prepared statement of.................................... 21 Leen, Mr. Craig, Esquire, Director, Office of Federal Contract Compliance Programs, U.S. Department of Labor..... 7 Prepared statement of.................................... 10 Additional Submissions: Ms. Brown Barnes:........................................ Report: Progress Made on GAO Recommendations to Improve Nondiscrimination Oversight, but Challenges Remain..... 70 Table 1: Status of GAO's September 2016 Recommendations to the Office of Federal Contract Compliance Programs.. 71 Table 2: Status of GAO's November 2017 Recommendations to the Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC)................................................. 72 Questions submitted for the record by: Bonamici, Hon. Suzanne, a Representative in Congress from the State of Oregon Fudge, Hon. Marcia L., a Representative in Congress from the State of Ohio Lee, Hon. Susie, a Representative in Congress from the State of Nevada........................................ 79 Schrier, Hon. Kim, a Representative in Congress from the State of Washington.................................... 78 Scott, Hon. Robert C. ``Bobby'', a Representative in Congress from the State of Virginia Responses to questions submitted for the record by: Ms. Brown Barnes......................................... 83 Ms. Dhillion............................................. 86 Mr. Leen................................................. 107 EXAMINING THE POLICIES AND PRIORITIES. OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (EEOC) AND THE OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP) ---------- Thursday, September 19, 2019 House of Representatives, Committee on Education and Labor, Subcommittee on Civil Rights and Human Services Washington, D.C. ---------- The subcommittees met, pursuant to call, at 2:17 p.m., in Room 2175, Rayburn House Office Building. Hon. Suzanne Bonamici [chairwoman of the subcommittee] presiding. Present: Representatives Bonamici, Schrier, Hayes, Lee, Comer, Stefanik, and Johnson. Also Present: Representatives Scott, and Foxx. Staff Present: Ilana Brunner, General Counsel; Emma Eatman, Press Assistant; Eunice Ikene, Labor Policy Advisor; Ariel Jona, Staff AssistantStephanie Lalle, Deputy Communications Director; Jaria Martin, Clerk/Assistant to the Staff Director; Richard Miller, Director of Labor Policy; Max Moore, Office Aid; Janice Nsor, Oversight Counsel; Veronique Pluviose, Staff Director; Carolyn Ronis, Civil Rights Counsel; Banyon Vassar, Deputy Director of Information Technology; Jonathan Walter, Labor Policy Fellow; Courtney Butcher, Minority Director of Member Services and Coalitions; Cate Dillon, Minority Staff Assistant; Rob Green, Minority Director of Workforce Policy; Jeanne Kuehl, Minority Legislative Assistant; John Martin, Minority Workforce Policy Counsel; Hannah Matesic, Minority Director of Operations; Audra McGeorge, Minority Communications Director; Carlton Norwood, Minority Press Secretary; and Ben Ridder, Minority Professional Staff Member. Chairwoman BONAMICI. The Committee on Education and Labor will come to order. Welcome, everyone. I note for the Subcommittee that Congressman Walberg of Michigan is permitted to participate in today's hearing with the understanding that his questions will come only after all members of the Subcommittee on both sides of the aisle who are present have had an opportunity to question the witnesses. I note that a quorum is present. The Committee is meeting today in an oversight hearing to hear testimony on examining the policies and priorities of the Equal Employment Opportunity Commission, EEOC, and the Office of Federal Contract Compliance Programs, OFCCP. Pursuant to Committee Rule 7c, opening statements are limited to the Chair and Ranking Member. This allows us to hear from the witnesses sooner and provides all members with adequate time to ask questions. I now recognize myself for the purpose of making an opening statement. Today's hearing will examine the policies and priorities of the Equal Employment Opportunity Commission, the EEOC, and the Office of Federal Contract Compliance Programs, OFCCP. These are the two primary agencies responsible for combating workplace discrimination and harassment and their oversight is as necessary today as ever before. Today the median Black worker earns only 75 percent of the wage earned by the median White worker. One in four LGBTQ workers reports experiencing some form of discrimination in the workplace. And more than 60 percent of workers over the age of 45 report seeing or experiencing age discrimination in the workplace. My home State of Oregon has one of the most rapidly aging populations in the country, and I have heard from workers, particularly those in the technology industry, who believe they have been dismissed from or denied employment because of their age. The technology sector is one of the fastest growing sectors in our economy and the lack of racial, ethnic, and gender diversity is particularly noteworthy. In 2017 the Government Accountability Office found that women hold only 19 percent of senior officer and manager positions. Representation is similarly low for Asian, Hispanic, and Black workers. Our workforce is becoming increasingly diverse, yet women, people of color, older workers, workers with disability, and LGBTQ workers are still experiencing persistent discrimination in the workplace, including pay disparities, limited opportunities, and often times harassment. The EEOC was established more than 50 years ago under the Civil Rights Act. It enforces the Federal laws that prohibit workplace discrimination based on race, religion, sex, national origin, age, disability, or genetic information. OFCCP's mission is to make sure Federal contractors and subcontractors promote diversity through affirmative action and enforce anti- discrimination laws for companies receiving taxpayer dollars. It is the responsibility of both agencies to help protect workers from discrimination. Unfortunately, we have seen both the EEOC and the OFCCP take actions that further the Trump Administration's efforts to undermine and roll back civil rights protections. We should be doing everything we can to promote fairness in the workplace, but the Trump Administration seems to be taking us backward, not forward in this important effort. The President's fiscal year 2019 budget proposed a 13 percent cut to OFCCP and his fiscal year 2020 budget proposed nearly a $24 million cut to the EEOC's budget. These drastic proposed cuts send a clear message about the value, or lack thereof, this Administration places on the protection of civil rights. That message has been reiterated through its policy decisions. In 2017 the Administration took the extraordinary step of filing an amicus brief in direct opposition to the EEOC in a case regarding the sexual orientation and gender identity protections under Title VII of the Civil Rights Act. The EEOC appears to be adopting the Administration's lax approach to workplace discrimination. The Commission has not filed any new cases of sex-based discrimination related to gender identity or sexual orientation since September of 2017. And although it cleared the notorious case backlog, its ability to do so while employing fewer people raises serious questions about how rapidly cases are being closed. And most recently, many of us were dismayed by EEOC's announcement that it would stop collecting pay data that would help the EEOC and OFCCP staff identify and address pay disparities based on gender, race, and ethnicity. In 2016 the EEOC stated that the expanded pay data collection was necessary for the enforcement of Title VII, Executive Order 11246 and the Equal Pay Act. The decision to end the collection of pay data is an unprecedented setback for the enforcement of civil rights laws. With respect to the OFCCP, the Administration's record is not much better. In July, Politico reported that from fiscal year 2017 to fiscal year 2018, the OFCCP conducted on average 977 compliance evaluations per year. That is about one-quarter the rate during the Obama Administration. The same reporting found that the Agency has investigated only 9 percent of the discrimination complaints received, compared to 21 percent under the Obama Administration. Additionally, in August the Department of Labor issued a new proposal to dramatically broaden the ability of Federal contractors to use religion as a basis to discriminate in hiring. This will open the door to Federal contractors discriminating against LGBTQ individuals, people of color, women, or even those with varying religious beliefs, upending the government's compelling interest in preventing the use of taxpayer funds to perpetuate otherwise unlawful discrimination. During today's hearing we will explore the rollback of these civil rights protections. And as our workplace becomes increasingly diverse, we need the EEOC and the OFCCP to get back on track. I want to thank all the witnesses for their time today. And I yield to Ranking Member Comer for his opening statement. [The statement of Chairwoman Bonamici follows:] Prepared Statement of Hon. Suzanne Bonamici, Chairwoman, Subcommittee on Civil Rights and Human Services Today's hearing will examine the policies and priorities of the Equal Employment Opportunity Commission, or the E-E-O-C, and the Office of Federal Contract Compliance Programs, or the O-F-C-C-P. These are the two primary agencies responsible for combatting workplace discrimination and harassment, and their oversight is as necessary today as ever before. Today, the median Black worker earns only 75 percent of the wage earned by the median white worker. One in four LGBTQ workers reports experiencing some form of discrimination in the workplace. And more than 60 percent of workers over the age of 45 reporting seeing or experiencing age discrimination in the workplace. My home state of Oregon has one of the most rapidly aging populations in the country, and I have heard from workers, particularly those in the technology industry, who believe they have been dismissed from or denied employment because of their age. The technology sector is one of the fastest growing sectors of our economy, and the lack of racial, ethnic, and gender diversity is particularly noteworthy. In 2017, the Government Accountability Office found that women hold only 19 percent of senior officer and manager positions. Representation is similarly low for Asian, Hispanic, and Black workers. Our workforce is becoming increasingly diverse, and yet women, people of color, older workers, workers with disabilities, and LGBTQ workers are still experiencing persistent discrimination in the workplace including, pay disparities, limited opportunities, and harassment. The EEOC was established more than 50 years ago under the Civil Rights Act. It enforces the federal laws that prohibit workplace discrimination based on race, religion, sex, national origin, age, disability, or genetic information. OFCCP's mission is to protect federal contractors and subcontractors, promote diversity through affirmative action, and enforce anti-discrimination laws for companies receiving taxpayer dollars. It is the responsibility of both agencies to help protect workers from discrimination. Unfortunately, we have seen both the EEOC and the OFCCP take actions that further the Trump Administration's efforts to undermine and roll back civil rights protections. We should be doing everything we can to promote fairness in the workplace. But the Trump Administration seems to be taking us backward, not forward, in this important effort. The President's Fiscal Year 2019 budget proposed a 13 percent cut to OFCCP, and his Fiscal Year 2020 budget proposed a nearly $24 million cut to the EEOC's budget. These drastic cuts send a clear message about the value, or lack-thereof, this Administration places on the protection of civil rights, and that message has been reiterated through its policy decisions. In 2017, the Administration took the extraordinary step of filing an amicus brief in direct opposition to the EEOC in a case regarding the sexual orientation and gender identity protections under Title VII of the Civil Rights Act. The EEOC appears to be adopting the Administration's lax approach to workplace discrimination. The Commission has not filed any new cases of sex-based discrimination related to gender identity or sexual orientation since September 2017. And although it cleared the notorious case backlog, its ability to do so while employing fewer people raises serious questions about how rapidly cases are being closed. And most recently, many of us were dismayed by EEOC's announcement that it would stop collecting pay data that would help the EEOC and OFCCP staff identify and address pay disparities based on gender, race, and ethnicity. In 2016, the EEOC stated that the expanded pay data collection was necessary for the enforcement of Title VII, Executive Order 11246, and the Equal Pay Act. The decision to end the collection of pay data is an unpresented setback for the enforcement of civil rights laws. With respect to OFCCP, the Administration's record is not much better. In July, Politico reported that from Fiscal Year 2017 to Fiscal Year 2018, the OFCCP conducted, on average, 977 compliance evaluations per year--about one quarter the rate during the Obama Administration. The same reporting found the agency has investigated only nine percent of the discrimination complaints received, compared to 21 percent under the Obama Administration. Additionally, in August, the Department of Labor issued a new proposal to dramatically broaden the ability of federal contractors to use religion as a basis to discriminate in hiring. This will open the door to federal contractors discriminating against LGBTQ individuals, people of color, women, or even those with varying religious beliefs, upending the government's compelling interest in preventing the use of taxpayer funds to perpetuate otherwise unlawful discrimination. During today's hearing we will explore the rollback of these civil rights protections. As our workplace becomes increasingly diverse, we need the EEOC and OFCCP to get back on track. I want to thank all the witnesses for their time today, and I yield to Ranking Member Comer for his opening statement. ______ Mr. COMER. Yielding? The Committee Republicans have long been committed to policies and laws that empower Americans to achieve success. No one should ever be denied an opportunity because of unlawful discrimination. That is why there are important protections under Federal law to prevent workplace discrimination. While we agree our Nation's nondiscrimination laws must be properly enforced, workers and entrepreneurs should not be held back by burdensome regulations, excessive red tape, and overzealous enforcement actions. Under the Obama Administration, the Equal Employment Opportunity Committee, or EEOC, significantly expanded the employer information report, the EEO-1, to require businesses to collect and report employee pay data. Since 1966 the EEOC has required employers with 100 or more employees to submit demographic data annually. Before the Obama scheme was proposed, pay data was never part of the EEO-1 report, and for good reason. In 2017 the Trump Administration argued this mandate was unnecessarily burdensome and lacked practical utility. Job creators from around the country weighed in and voiced their concerns with this extreme regulatory mandate. Not surprisingly, the EEOC recently estimated that the burden of collecting and reporting EEO-1 information with pay data for 2018 would be $622 million, a significant increase from EEOC's 2016 estimate of $53.5 million annually. This led EEOC to conclude that the supposed benefits of collecting and reporting pay data did not outweigh the cost of burdens placed on our Nation's job creators. But it is not all bad news coming from the EEOC. Currently the Commission, which is also responsible for investigating charges of discrimination against employers, has the lowest backlog of pending charges in over a dozen years. Committee members on both sides of the aisle have long raised concerns about the Agency's backlog, so this is a promising step in the right direction. When American workers turn to the Federal Government for help, they should receive their due process in a timely manner. And we are seeing more good news from the Department of Labor's Office of Federal Contract Compliance Programs, or OFCCP. OFCCP is tasked with enforcing nondiscrimination and affirmative action requirements for Federal contractors. Religious organizations have been discouraged from seeking Federal contracts. So the OFCCP has proposed a rule that will clarify the protection retained by religious organizations that contract with the Federal Government. If adopted, the rule will encourage more employers of all backgrounds, to participate in the Federal contracting system and reaffirms our commitment to protecting religious freedoms of all Americans. The purpose of America's nondiscrimination laws and the agencies enforcing them is to give all Americans equal opportunities to succeed. EEOC and OFCCP play important roles in helping to prevent and combat unlawful discrimination, but they should also be encouraged to prioritize policies that are responsible and effective so our Nation's job creators can flourish and America's workplaces can be free from discrimination. Thank you, Madam Chairman, and I yield back. [The statement of Mr. Comer follows:] Prepared Statement of Hon. James Comer, Ranking Member, Subcommittee on Civil Rights and Human Services ``Committee Republicans have long been committed to policies and laws that empower all Americans to achieve success. No one should ever be denied an opportunity because of unlawful discrimination. That is why there are important protections under federal law to prevent workplace discrimination. While we agree our nation's nondiscrimination laws must be properly enforced, workers and entrepreneurs shouldn't be held back by burdensome regulations, excessive red tape, and overzealous enforcement actions. Under the Obama administration, the Equal Employment Opportunity Commission (EEOC), significantly expanded the Employer Information Report-- the EEO-1--to require businesses to collect and report employee pay data. Since 1966, the EEOC has required employers with 100 or more employees to submit demographic data annually. Before the Obama scheme was proposed, pay data was never part of the EEO-1 report, and for good reason. In 2017, the Trump administration argued this mandate was ``unnecessarily burdensome'' and ``lacked practical utility.'' Job creators around the country weighed in and voiced their concerns with this extreme regulatory mandate. Not surprisingly, the EEOC recently estimated that the burden of collecting and reporting EEO-1 information with pay data for 2018 would be $622 million; a significant increase from EEOC's 2016 estimate of $53.5 million annually. This led EEOC to conclude that the supposed benefits of collecting and reporting pay data do not outweigh the costs and burdens placed on our nation's job creators. But it's not all bad news coming from the EEOC. Currently the Commission, which is also responsible for investigating charges of discrimination against employers, has the lowest backlog of pending charges in over a dozen years. Committee Members on both sides of the aisle have long raised concerns about the agency's backlog, so this is a promising step in the right direction. When American workers turn to the federal government for help, they should receive their due process in a timely manner. And we are seeing more good news from the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP). OFCCP is tasked with enforcing nondiscrimination and affirmative action requirements for federal contractors. Religious organizations have been discouraged from seeking federal contracts, so the OFCCP has proposed a rule that will clarify the protections retained by religious organizations that contract with the federal government. If adopted, the rule will encourage more employers, of all backgrounds, to participate in the federal contracting system, and reaffirms our commitment to protecting religious freedom for all Americans. The purpose of America's nondiscrimination laws, and the agencies enforcing them, is to give all Americans equal opportunities to succeed. EEOC and OFCCP play important roles in helping to prevent and combat unlawful discrimination, but they should also be encouraged to prioritize policies that are responsible and effective so our nation's job creators can flourish, and America's workplaces can be free from discrimination. `` ______ Chairwoman BONAMICI. Thank you, Ranking Member Comber. All other Members who wish to insert written statements into the record may do so by submitting them to the Committee Clerk electronically in Microsoft Word format by 5:00 p.m. on October 2, 2019. I will now introduce our witnesses. Craig E. Leen serves as the Director of the Office of Federal Contract Compliance Programs at the U.S. Department of Labor. Prior to serving at OFCCP, Mr. Leen was the City Attorney of Coral Gables, Florida, where he was the General Counsel and Chief Legal Officer. Janet Dhillon is the 16th Chair of the Equal Employment Opportunity Committee. Chair Dhillon was nominated by President Donald J. Trump on June 29, 2017 and sworn in on May 15, 2019. Chair Dhillon practiced law in the private sector for more than 25 years. Cindy Brown Barnes is a Director in the Government Accountability Office's Education, Workforce, and Income Security team. She oversees the employment and training portfolio. Mrs. Brown Barnes has more than 30 years of service performing financial, forensic, and performance audits of Federal agencies and programs. Instructions to the witnesses--we appreciate all of you for being here today and we look forward to your testimony. Let me remind the witnesses that we have read your written statements and they will appear in full in the hearing record. Pursuant to Committee Rule 7d and Committee Practice, each of you is asked to limit your oral presentation to a 5 minute summary of your written statement. Let me remind the witnesses that pursuant to Title 18 of the U.S. Code Section 1011, it is illegal to knowingly and willfully falsify any statement, representation, writing, document, or material fact presented to Congress or to otherwise conceal or cover up a material fact. Before you begin your testimony please remember to press the button on the microphone in front of you--I am afraid I didn't set a very good example this morning--so it will turn on and the Members can hear you. As you begin to speak the light in front of you will turn green, after 4 minutes the light will turn yellow to signal that you have 1 minute remaining. When the light turns red your 5 minutes have expired and we ask that you please wrap up. We will let the entire panel make their presentations before we move to Member questions. When answering a question, please again remember to turn your microphone on. I will first recognize Director Leen. TESTIMONY OF CRAIG LEEN, ESQUIRE, DIRECTOR, OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS, U.S. DEPARTMENT OF LABOR Mr. LEEN. Madam Chair, Mr. Ranking Member, distinguished Members of the Subcommittee, thank you for this opportunity to discuss the critical work of OFCCP. I believe strongly in its mission and I am honored to serve as its Director. In this Administration, OFCCP is vigorously pursuing its mission to enforce the civil rights protections for Federal contractors in Executive Order 11246, Section 503 of the Rehabilitation Act, and VEVRRA. These authorities touch approximately one-quarter of America's workforce. OFCCP is dedicated to ensuring equal employment opportunity for these workers and protecting against discrimination based on race, color, sex, sexual orientation, gender identity, religion, national original, disability, and veteran status, as well as enforcing pay transparency. Indeed, in the past two calendar years, OFCCP recovered a record $45 million in monetary remedies, significantly more than any previous administration in any 2 calendar years. OFCCP is as efficient and effective as it has ever been. A few words about myself and my passion for this work. I am the father of a daughter and son who were each diagnosed with autism as young children. In particular, my daughter, Alex, who is 14 years old, has profound autism and a substantial intellectual disability. I have struggled and fought for accommodations for my daughter for over a decade on an almost daily basis, and through these efforts became involved as an advocate in the disability community. I have seen through this experience the challenges individuals with disabilities face obtaining accommodations and being treated inclusively. Indeed, this experience led me here to OFCCP with the determination to make a positive impact for people with disabilities. There is much to be done and the numbers are startling. For people with disabilities, the labor force participation rate is approximately 20 percent compared to 60 percent generally. The unemployment rate is typically double the general unemployment rate, and the wage gap is approximately 30 percent. To address these numbers and to ensure that people with disabilities are treated inclusively by contractors, OFCCP is making Section 503 compliance a primary focus of the Agency. As part of this effort, I have ordered 500 Section 503 focused reviews, which are presently ongoing. These reviews are all on site at corporate headquarters across the country and are a comprehensive look at disability inclusion and nondiscrimination. More Section 503 focused reviews will be included in future scheduling lists. The Agency has also posted helpful guidance on its website, with training materials and best practices in disability inclusion. If we find violations in these reviews, we will remedy them. We will also encourage contractors to adopt best practices to avoid potential future violations. We then will publish a report detailing our findings to help other contractors and companies generally. The Rehabilitation Act was the first Federal statute focused on eliminating employment discrimination based on disability status and I am proud that we are making it a central focus of OFCCP's enforcement program. This autumn, I am ordering 500 VEVRRA focused reviews as to veterans, veterans with disabilities and military spouses, with the list being released around Veteran's Day. We will then do focused reviews on promotions to ensure that all Americans have a fair chance to advance in employment and to address a number of the groups of people that you have talked about previously, women, women of color, people with disabilities, trying to make sure that they can advance in employment. The Agency is fully committed to enforcement. The most recent scheduling list included 3,500 establishments made up of 2,500 compliance reviews, 500 focused reviews, and 500 compliance checks, the largest list in many years. Of course, enforcement and compliance assistance go hand in hand. The Agency is also focused on providing assistance to stakeholders and contractors through its new online help desk and opinion letter programs. In providing compliance assistance, OFCCP will continue to focus on providing transparency, certainty, efficiency, and recognition. I would like to briefly draw attention to our efforts to increase efficiency. OFCCP has addressed its backlog of aged cases, cases over 2 years old, cutting its case rate by a third in the past 2 years. More efficiency leads to the ability to conduct more reviews and help more workers. I would like to conclude where I began, with people with disabilities. These Americans make up about 20 percent of our population and have not been fully included in employment for too long. Individuals with disabilities are a significant untapped source of skills and talent and our country would be greatly benefitted by helping ensure their full employment. OFCCP is doing its part, and will continue to do so. Thank you, Madam Chair. [The statement of Mr. Leen follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairwoman BONAMICI. Thank you, Mr. Leen. I now recognize Chair Dhillon for 5 minutes for your testimony. TESTIMONY OF JANET DHILLON, CHAIR, U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Ms. DHILLON. Thank you. Good afternoon, Madam Chair, Ranking Member, and Members of the Subcommittee. Thank you for inviting me to testify here today on behalf of the Equal Employment Opportunity Commission. I serve as Chair of the EEOC, along with Commissioners Victoria Lipnic and Charlotte Burrows, and General Counsel, Sharon Gustafson. I appreciate the opportunity to appear before you to discuss the plans for the Agency and the challenges that we face. I would like to thank the Committee and the Subcommittee for their support of the EEOC, and I look forward to working with all of you and all Members of Congress to achieve the mission of the EEOC, to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace. I have been at the Commission now for just over 4 months, and I am still learning about many aspects of the Commission's role. In my prior professional roles, I have seen the EEOC in action and the positive impact that it has made on workforces across the country. As Chair, I want to build on the Agency's legacy and continue to tackle workplace discrimination while striking a careful balance between enforcement and compliance assistance. To further build on this legacy, I am starting with several principles which are outlined in the written testimony that I have submitted. I will note a few highlights here. First, the EEOC must continue to provide excellent customer service. We must be responsive to employees who raise discrimination claims. An employee's decision to bring a charge can be in many instances a courageous act, but an act that can also be very stressful for that individual and their family. We owe it to these employees, as well as everyone else involved, to honor their courage by swiftly addressing their concerns. Too often the sad reality is that justice delayed is justice denied. Evidence can be misplaced, memories will fade. The opportunity to quickly stop and remedy a discriminatory practice can also be lost, potentially to the detriment of other employees. So it is critical that our private sector charges and our Federal complaints hearings, and appeals are handled promptly and fairly. To do so, we must continue to effectively manage our workload across all program offices. Second, the EEOC will continue to work vigorously to protect vulnerable workers. To that end I have established an internal task force to take a closer look at vulnerable workers and the effectiveness of our current enforcement and education efforts. I have challenged this task force to step back and look at everything fresh and see if there are things that we can do better to maximize our effectiveness with these populations. Third, the Agency will continue to focus on its use of alternative dispute resolution and conciliation to achieve the Agency's mission. The EEOC's successful and popular mediation program is a means by which we can promptly resolve charges and bring benefits to victims of discrimination. In fiscal year 2018, the Agency conducted more than 9,000 mediations, which resulted in nearly $166 million in benefits being paid to victims of employment discrimination. Conciliation efforts are another way for the EEOC to effectively enforce Federal employment antidiscrimination laws. Conciliation is a voluntary, informal, and confidential process that occurs once the EEOC has determined that there is reasonable cause to believe that discrimination has occurred. The Agency has an obligation to attempt to resolve findings of discrimination through conciliation before the Agency considers litigation. And we will remain focused on ensuring that our efforts are fair and taken in good faith. Finally, litigation is an important tool in our toolbox, but I believe it is a tool of last resort. When it does become necessary, EEOC's litigation will be conducted in accordance with the highest ethical standards. In conclusion, discrimination threatens equal opportunity, it holds people back from pursuing their dreams, and despite the progress that we have made as a nation, bias in employment still happens far too often. We must continue to work together to bring America to a place where everyone has a fair chance to work, to provide for their families, and to contribute to our economy and our society. I appreciate the opportunity to appear before you today and I look forward to answering your questions. [The statement of Ms. Dhillon follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairwoman BONAMICI. Thank you for your testimony, Chair Dhillon. I now recognize Miss Brown Barnes for 5 minutes for your testimony. TESTIMONY OF CINDY BROWN BARNES, DIRECTOR, EDUCATION, WORKFORCE, AND INCOME SECURITY, U.S. GOVERNMENT ACCOUNTABILITY OFFICE Ms. BROWN BARNES. Chair Bonamici, Senior Republican Comer, and Members of the Subcommittee, I am pleased to be here today to discuss our prior work across three GAO reports, examining the challenges facing the Federal Government, and overseeing employers' compliance with equal employment opportunity requirements. Today I will discuss the progress OFCCP and EEOC have made in implementing 12 recommendations from our 2016 report on strengthening OFCCP's oversight of Federal contractors and our 2017 report to increase equal employment opportunity in the technology sector. I will also discuss the exemptions sought by faith-based grantees from nondiscrimination laws related to religious based hiring. In our September 2016 report on OFCCP, we found that weaknesses in OFCCP's compliance evaluation process limited its ability to ensure that Federal contractors comply with nondiscrimination provisions. We made six recommendations, as you can see from the table on the screen. OFCCP has taken action to fully implement the first three of our recommendations; however, OFCCP has not fully implemented the remaining recommendations, four, five, and six on the screen. I want to highlight recommendation number five, involving monitoring of the affirmative action plans. We found that OFCCP relies significantly on voluntary compliance by Federal contractors, and this approach cannot ensure that contractors were complying with basic requirements to develop and maintain an AAP. An AAP is a management tool that includes practical steps to address underrepresentation of women and minorities, such as goals for expanding employment opportunities to these groups, and instances in which they are underrepresented. OFCCP's regulations generally that cover contractors prepare and maintain an AAP within 120 days of contract commencement and update it annually. At the time of our review, we found that OFCCP had no process for ensuring that establishment met these requirements. OFCCP has taken steps to address this recommendation, such as developing a web-based portal to allow contractors to upload their AAPs to assist OFCCP in reviewing and prioritizing resources, among other actions. However, OFCCP needs to obtain OMB approval to fully implement this recommendation. In our November 2017 report on diversity in the technology sector, we found that weaknesses in EEOC's and OFCCP's oversight efforts impact their ability to ensure nondiscrimination and equal employment opportunity in the technology sector. Specifically, we found that while the estimated percentage of minority technology workers had increased from 2005 to 2015, there have been statistically significant increases in the number of Asian and Hispanic workers, but no growth either for females or black workers. As a result of our work, we made five recommendations to OFCCP and one to EEOC, as you can see from table 2 on the screen. Of the five recommendations made to OFCCP, the Agency has fully implemented the one focused on requiring contractors to desegregate demographic data for the purpose of setting placement goals in the AAP. I want to highlight the recommendation from EEOC at the bottom of the table. EEOC has taken some action towards addressing missing industry code data, which has broader implications in the technology sector. However, EEOC has not fully implemented this recommendation. EEOC cannot analyze charge data by industry to help identify investigation and outreach priorities. As a part of an effort to overhaul its data system, EEOC has begun developing an employer master list that will provide a source of employer information, including industry codes. This will enable EEOC to focus on industries with EEO disparities. In our October 2017 report on faith-based grantees, we found that few grantees sought an exemption based on the Religious Freedom Restoration Act. We found that from 2007 through 2015, 9 of the 117 potentially faith-based organizations certified that they were exempt from nondiscrimination laws related to religious based hiring. Thank you. This concludes my prepared statement. [The statement of Ms. Brown Barnes follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairwoman BONAMICI. Thank you for your testimony. Under Committee Rule 8a we will now question witnesses under the 5 minute rule alternating between the parties. I now recognize myself for 5 minutes. Americans are living and working longer, and we must do all we can to make sure they are protected from age discrimination. According to recent data from the Census Bureau and the Bureau of Labor Statistics, the percentage of retirement age Americans in the labor force has doubled since 1985. Unfortunately, age discrimination in the workplace is still disturbingly pervasive, and it is a significant factor in older workers' long-term unemployment. According to an AARP survey released last year, three in five older workers reported seeing or experiencing age discrimination on the job. Earlier this year, this Committee approved the bipartisan Protecting Older Workers Against Discrimination Act, or POWADA. The bill would amend our four core civil rights laws, the Age Discrimination and Employment Act, the anti-retaliation provision of Title VII of Civil Rights Act, the Americans with Disabilities Act, and the Rehabilitation Act of 1973, to make a Congressional intent clear. Any unlawful discrimination in the workplace is unacceptable. Chair Dhillon, the Gross v. FBL Financial Services decision applied the ``but for'' standard to age discrimination, requiring the EEOC to demonstrate that age was essentially the sole factor leading to an adverse employment action. Yet, under other civil rights law, such as Title VII, the motivating factor test is applied. How does having different standards influence the EEOC's efforts and outcomes? And would the legislation this Committee passed, the POWADA bill, Protecting Older Workers Against Discrimination Act, how would that strengthen the EEOC's ability to enforce the ADEA? Ms. DHILLON. Well, thank you, Chairwoman, for that question. Certainly, age discrimination cases and claims and charges are a focus of the EEOC's effort. In fact, in the most recent fiscal year, over 22 percent of the charges that we received involved allegations of age discrimination. So, I agree with you that it is a significant issue and the Commission is focused on remedying age discrimination cases. I can't support or not support a particular piece of legislation. I can say that obviously the ``but for'' standard is a higher standard. But that does not mean that the Commission is any less committed to investigating, and where appropriate, litigating charges of age discrimination. You have my commitment, and I know you have the commitment of my fellow commissioners, as well as our General Counsel and all the staff, that we take age discrimination charges very seriously and we pursue them vigorously. Chairwoman BONAMICI. But you agree that the motivating factor test would be easier to prove a case of age discrimination? Ms. DHILLON. It is a lower standard. It is a lower standard, yes. Chairwoman BONAMICI. Thank you. I request unanimous consent now to submit a letter into the record from former EEOC chair Jenny Yang and former EEOC General Counsel David Lopez. Without objection. I have the letters introduced. According to this letter from the former EEOC Chair and General Counsel, ``The Agency's 2017 efforts to update the enforcement guidance on unlawful harassment were critical because, according to the letter, the EEOC's guidance on harassment has not had a comprehensive update for over 20 years. As the MeToo Movement has brought nationwide attention to the pervasive problem of workplace harassment, the demand for up to date guidance is even greater.'' The letter also notes that the enforcement guidance ``was the product of extensive research, analysis, and deliberation informed by public hearings, public testimony, public input, and the work of the task force.'' The comment period for guidance closed on March 21, 2017, yet there is still no final guidance issued. Chair Dhillon, where is the guidance and the review process and when will it be finalized? And I ask that question because in the wake of the MeToo Movement we would like to have some specific examples of how the EEOC is using its enforcement tools, including strategic enforcement in addressing and preventing harassment in the workplace. Ms. DHILLON. Thank you, Chairwoman, for your question. And I am glad that you called out the work of the task force, and particularly the efforts of former Acting Chair Lipnic, who convened that task force and issued a very comprehensive and, frankly, in my opinion extremely well done work on the problem of harassment in the workplace. And I would note that she was far ahead of the curve because that was issued well over a year before the MeToo Movement came into public consciousness. On our website, we have that task force report, we also have tools for employers and employees on how to address sexual harassment and harassment claims and allegations of discrimination. And these are all very helpful tools and I would encourage people to look at them and consult with them. The guidance itself is still in the OMB process. Chairwoman BONAMICI. Do you have any sense of when that will be completed? Ms. DHILLON. I do not. Chairwoman BONAMICI. And I now request unanimous consent to enter letters into the record from the Human Rights Campaign relevant to this hearing. Without objection. I yield back the balance of my time and recognize Mr. Comer for your questions. Excuse me, I am sorry, recognize Ms. Stefanik from New York for your questions. Ms. STEFANIK. Thank you, Chairwoman Bonamici. I want to focus on women in the workplace. Today there are nearly 75 million women working in the United States, the most ever. Of the 2.8 million jobs created within the past year, 58 percent have gone to women. Women are graduating college at a higher rate than their male counterparts, 56 percent of degrees conferred last year, and women are increasingly their family's primary breadwinners. We must address unique challenges facing women in the workforce. Earlier this year, I introduced the Wage Equity Act and have earned co-sponsorships of over 50 of my colleagues. My bill, the Wage Equity Act, addresses the gender pay gap and reinforces equal pay for equal work by creating a self-audit system to encourage businesses to proactively conduct a pay analysis audit and identify any potentially unlawful pay disparities. It allows businesses to quickly rectify any of these disparities while being protected from lawsuits. So, my question for Chairwoman Dhillon and Director Leen, do you believe that the creation of such a self-audit system would be beneficial to enhance employer compliance and address unlawful pay disparities? Mr. LEEN. Thank you for that question. Pay disparities based on race or gender, or any of the protections we enforce, are problematic. And when they are caused by discrimination, they are illegal. I would tell you I can't speak specifically as to a particular piece of legislation, but I can tell you that OFCCP is doing that already with Federal contractors. We require Federal contractors every year to assess their compensation and to make sure that there are not unexplainable pay disparities based on gender and race. Typically, what we do is they look to see the size of the gap, and if it is more than two standard deviations and it can't be explained by a legitimate business reason that is nondiscriminatory, they need to fix it. If they don't fix it, then we come in and we make them fix it. Ms. STEFANIK. So, the concept of a self-audit system, we are trying to incentivize businesses if they identify a pay gap to close that pay gap. Ms. Dhillon, do you have any comments on that? Ms. DHILLON. Thank you, Congresswoman. Again, like Mr. Leen, I cannot comment on a particular piece of legislation or proposed legislation, but what I can say is that I do believe that employers do want to do the right thing. And by and large they do want to pay their employees fairly. So, I think anything that encourages them along those lines could be helpful. And I certainly look forward to working with you and working with your staff, and any kind of technical assistance that we can provide we would be happy to do so. Ms. STEFANIK. Sure. Setting aside the specifics of the bill, perhaps I should have said that at the end, the concept of a self-audit, so incentivizing businesses to look at their data proactively, reaching out to the EEOC to make sure that if there are disparities they are closing those potential pay gaps. Is that concept something that you think would be helpful in terms of making sure businesses are doing right by the law, which from my perspective, when I visit businesses, they are trying to do that. The concept of a self-audit. Based upon Maine, Massachusetts, Maryland, this is not a novel concept. Many states have self-audit systems in place. Mr. LEEN. OFCCP has a lot of experience in this area and it is certainly a best practice to do a self-audit every year. For Federal contractors, though, it is required by law. Ms. STEFANIK. Great. Best practice, that is great. So I think that data would be helpful. My next question is through the Federal contractors, because they are required to do that every year, how is that more beneficial than the broad data collection in the EEO-1 in regard to identifying these pay discrepancies? Mr. LEEN. Well, the EEO-1 data, that basically asks for sort of average data about salaries based on gender, for example, in nine categories. So what OFCCP--when we do an audit, we get much more specific data. Ms. STEFANIK. Right, more nuanced data. Mr. LEEN. Well, it is by--it is very granular, it goes all the way to the person. And we are able to do regression analyses based on job title or job group. That sort of data allows us to make a finding of discrimination. More generalized data typically can't be used to make a finding of discrimination. Ms. STEFANIK. Great. With that, I yield back. Chairwoman BONAMICI. Thank you, Representative Stefanik. Now I recognize Dr. Schrier from Washington for 5 minutes for your questions. Dr. SCHRIER. Thank you, Madam Chair, and thank you to our witnesses today. I am going to direct my questions today to you, Chair Dhillon. I was concerned to hear that the EEOC at the end of this month is going to stop collecting data that would help identify and address pay disparities based on gender, race, and ethnicity. And we have talked a lot about equal pay for equal work. And in this Committee, I told my own story about coming out of residency having earned $4.00 an hour and was so excited to have a job offer that I immediately just said, sure, I will take it, only to find out later that some of my colleagues, all male, had the good sense to negotiate a higher salary. And, of course, when you start with a higher salary, then any increases from then just compound it. But mine is just an anecdote and I don't think we can make decisions based on anecdotes and conjecture. And that is why I really think we need to collect this data. And it sounds, from your testimony, that it is really clear that you acknowledge that there are systemic disparities in pay related to gender and race, whether intentional or not. And so my question is, why would we stop getting this data when data helps us make decisions? Ms. DHILLON. Well, thank you, Congresswoman, for your question. Currently the EEOC is under court order to collect the EEO- 1 component 2 pay data, and that data collection is ongoing pursuant to the court order. Earlier this month the Commission filed--or submitted to the Federal Register required documentation under the Paperwork Reduction Act seeking permission from the OMB to collect data for the next 3 years. So we go to the OMB and we need to get permission through the Paperwork Reduction Act process in order to be allowed to collect data in the future. And in going through that, we have to actually make a showing to the OMB, we have to balance the burden that will be placed on the people who we are asking to provide the data against the utility. In the notice that we filed in the Federal Register for public comment last week, what the Commission said was that on a going forward basis we were not seeking authorization to collect pay data, the so-called component 2 data. And the reason for that, as laid out in the notice, was really two- fold. First of all, relying on our data scientists and statisticians at the EEOC, they did a burden analysis of the ongoing component 2 pay data collection and concluded that the burden to the responding community, to the employers, was about 10 times--actually more than 10 times higher than had originally been estimated. So we had to take that into account. Then we looked at the utility of that data, particularly as compared to the heightened burden, and concluded that we couldn't seek--under the requirements of the Paperwork Reduction Act, we could not seek additional authorization to collect the data. I have concern-- Dr. SCHRIER. In the interest of time, I am surprised that it is that burdensome, and simply because Congresswoman Bonamici and I were just at Nike, I visited Starbucks, they have voluntarily--like Miss Stefanik was talking about--they voluntarily collected this data just because they wanted to do their own self-improvement, which is very noble. But I also don't think that we can just depend on the kindness and the goodness of businesses to collect this data. I cannot imagine that in this day of computers and data entry that it would be really that hard to collect this. And I notice that there was no comment period, so the public was not invited to comment. Is that because you-- Ms. DHILLON. Congresswoman, the 60-day notice has been filed and so the public does have an opportunity to provide comments. We solicit comments on that, on what was put into the Federal Register. Dr. SCHRIER. And then one last question, given that Nike and Starbucks are able to do this so easily, have you been able to identify some better practices that perhaps they are using, perhaps other industry is using, to get at the root of this information? Because it may be a burden for companies, but it is really a burden for people who are systematically being paid less than they should be paid. Is there a better way to get this information? Ms. DHILLON. Well, I think there is a better way to do a pay data collection. And, in fact, during the comment period in 2016, a number of groups and employers made suggestions to the EEOC, which unfortunately were not adopted. What the Commission said in the Paperwork Reduction Act notice that was submitted to the Federal Register, is that we are committed to going through a rulemaking, a Title VII rulemaking, which in my view is what should have been done in 2016, to allow for robust public comment and input into how we craft a pay data collection that, while there is going to be a certain level of burden involved, it is not undue burden, but at the same time collects data that is useful to the EEOC in its enforcement mission. Dr. SCHRIER. Thank you. I see we are out of time. Chairwoman BONAMICI. Thank you, Representative. They have called votes on the floor. Before we go to the floor, I am going to recognize Dr. Foxx, the Ranking Member of the Full Committee, for 5 minutes for your questions. And after Dr. Foxx's questions, we will recess until immediately after the last vote and then return to the Committee. Dr. Foxx. Mrs. FOXX. Thank you very much, Chairwoman. And I want to thank our witnesses for being here today. I think we have superbly prepared and talented people here today. And I want to appreciate all three of you for your comments and for your willing to serve in the positions that you are in. Chair Dhillon, congratulations to you on your confirmation and thank you for being here. In its final year, the Obama Administration proposed EEOC collect this employee pay data, which has been the subject of the conversation recently. My understanding is the collection would increase the data fields provided by employers in each EEO-1 report 20-fold, from 180 to 3,660 fields. As you indicated, your new cost estimate for employers to complete and submit this revised report with pay data is $622 million, more than 11 times higher than the Obama Administration's estimate. Do you agree that requiring additional reporting of employee pay data to the Federal Government not only creates enormous compliance costs, but also raises significant privacy and confidentiality concerns for workers and businesses? Ms. DHILLON. Yes, Congresswoman, I agree with you. Mrs. FOXX. And I am glad to hear that you think there is a better way to do this. I would like to explore with you whether the pay data the court is now requiring EEOC to collect will have any value. In his court declaration in April, EEOC's chief data officer raised significant concerns about the data's validity and reliability, calling attention to such issues as to whether the data would enable valid comparisons within and between employees. He also stated that EEOC never conducted a true pilot study on collecting pay data, even though the National Academy of Sciences in 2012 recommended the completion of a true pilot study before embarking on a full-scale collection of pay data. Do you share the EEOC chief data officer's concerns regarding the utility of the pay data collection? Ms. DHILLON. Congresswoman, yes, I do. And in particular, the point that you raised about the lack of a pilot study is something that is of significant concern to me. The National Academy of Sciences in 2012 actually made six recommendations for a pay data study. The EEOC unfortunately only adopted one of those recommendations. Mrs. FOXX. Right. Director Leen, thank you again for testifying. I would like to congratulate you on the proposed rule regarding the religious exemption for Federal contractors that OFCCP published last month. At a hearing in June in this Committee, Republicans found themselves defending religious liberty. Republicans will always stand up for religious freedom, but it was disheartening to see it under attack. OFCCP's proposed rule relates to the religious exemption for Federal contractors based on the First Amendment, recent Supreme Court decisions and Title VII Civil Rights Act. Do you view the proposed rule as making new law or merely restating and clarifying existing law? Mr. LEEN. Thank you for that question. I have to be a little limited in what I can say about the proposed rule because it is a pending proposed rule. We have received over 109,000 comments on the rule and we are looking at them, and we are open-minded, and we are considering how to move forward. I can answer your question, though, based on what we have said in the preamble of the NPRM, which is that the intent is to clarify. My Agency does not make law, Congress makes law. Mrs. FOXX. Well, thank you very much for that. We celebrated Constitution Week this week and I think it is extraordinarily important that we never lose sight that the Bill of Rights begins with the First Amendment and the very first right is the freedom of religion. And I think that is something we must remind people of all the time. Thank you all very much, again. Thank you, Madam Chair. Chairwoman BONAMICI. Thank you, Representative Foxx. And now the Committee will be recessed. We have two votes. It should be probably 20-30 minutes and we will resume after the last vote is concluded. The Committee is in recess. [Recess] Mrs. HAYES. The Chair will continue to recognize Members for 5 minutes. And next we have Chairman Scott from Virginia for questioning. Mr. SCOTT. Thank you. Chairman Dhillon, you have had several questions on the pay data, how can you effectively, proactively do anything about pay discrepancies without the data? Ms. DHILLON. Congressman, thank you for your question. The EEOC enforces compensation discrimination laws now, we investigate charges, we conciliate charges, where appropriate, we bring litigation to obtain relief for charging parties. In addition, we engage in substantial outreach efforts, educating employers and employees as well, and then we have resources on our website. So I think that the Agency is actively and aggressively enforcing compensation discrimination laws. Mr. SCOTT. Mr. Leen, you have a proactive obligation, how would pay data help you fulfill your mission? Mr. LEEN. Congressman, we receive the pay data, as I mentioned, that is much more specific through our neutrally scheduled audits. So the pay data we typically get is the pay by employee, by race, and gender. And we are able to put those employees into pay analysis groups, run regression analyses, and then determine whether there is a statistically and practically significant finding. And then we require them to fix it. What I was mentioning before was we could not do that with the EEO-1 component 2 pay data because it is too general. So for us, we are going to continue to focus on the data that we get in our neutrally scheduled audits. Mr. SCOTT. You get more specific information than the component 2 data? Mr. LEEN. Yes, much more specific. Mr. SCOTT. Then why is it so expensive to just do the little component 2 data? Mr. LEEN. Well, I can tell you from the perspective of OFCCP that when they have to provide us this data, it is when they have been neutrally scheduled for an audit, which does not occur every year. It occurs whenever we include them on the scheduling list. There are costs associated with OFCCP compliance that we are keenly aware of and we try to reduce. But typically that is--you sign up for that by being a Federal contractor. That is something you agree to do affirmatively in taking the Federal--in basically being in the Federal procurement system. And it is only when you are audited that you have to provide us that information. Mr. SCOTT. Okay. Let me ask another question on religious discrimination. If someone has strong religious views, it is my understanding that they can discriminate now? Mr. LEEN. Congressman, absolutely not. They cannot discriminate just because they have strongly held religious views. Mr. SCOTT. Okay. What does the new guidance allow them to do that they couldn't do before? Mr. LEEN. The new proposed guidance, which is a pending rule making, so I am limited as to what I can say, provides clarifying definitions related to the present regulation that is already in OFCCP's regulations, which are based on Title VII. And the proposed rule would provide additional definitions, as well as an interpretive rule, which basically says that the rule would be interpreted to the full extent of the Constitution. Mr. SCOTT. You are aware of the organization in South Carolina that is running a child placement agency that is discriminating based on religion with Federal money? Mr. LEEN. Mr. Scott, what I would--what we do is if they are a Federal contractor and they are discriminating against their employees, we would prevent that. And the way we do that is if a complaint was made, we would go in and we would fix it, or if we neutrally schedule them for audit. Mr. SCOTT. So if it is a Federal contractor they are not able to discriminate based on religion? Mr. LEEN. They are not able to discriminate based on religion against their employees. Unless there is--the religious exemption applies, and then they are allowed to favor--they are--under the current religious exemption, they are allowed to favor employees based on religion. That exemption goes all the way back to Title VII. Mr. SCOTT. Now, does religion include favoring people who belong to their particular church? Mr. LEEN. Yes. Mr. SCOTT. And if it is an all White church, that pretty much excludes a lot of different groups, wouldn't it? Mr. LEEN. If it were--the point--I don't know if I agree with the premise there. We don't allow discrimination based on race, even if religion is given as the reason for that. That is in the preamble to the NPRM. We cite to the Bob Jones University case. And, in fact, that principle applies to every protected group that OFCCP protects. You cannot discriminate against someone based on their gender, gender identity, sexual orientation, national origin, race, based on disability status, based on veteran status, because of religion. That we do not permit. Mr. SCOTT. I am sorry, just for clarification, did you say that sexual orientation is a protected class? Mr. LEEN. Yes, it is. It is a protected class for OFCCP because it is expressly included in our executive order. Mrs. HAYES. Thank you. I now recognize the gentleman from Kentucky, Mr. Comer. Mr. COMER. Thank you. Director Leen, thank you for testifying today. OFCCP's proposed rule clarifying the religious exemption for Federal contractors states that religious organizations provided previous feedback to OFCCP that they were hesitant to bid on Federal contracts because of uncertainty surrounding the scope and application of the religious exemption. Could you elaborate on those concerns? And do you believe a rule clarifying the religious exemption will encourage more organizations to participate in the Federal contracting system? Mr. LEEN. Yes. I can elaborate on that a little bit. I am limited again in talking about the proposed rule based on the fact that it is pending. I can talk about what is in the preamble, and I can tell you a little bit about some of the goals that are expressed in the preamble. So, for example, you asked about religious organizations. Very few--the percentage of Federal contractors that are religious organizations is quite low, it is less than 1 percent. So we are not talking about a huge group of companies to begin with. In addition to that, there has been a concern because of the lack of clarity in OFCCP's regulations that a religious organization that wishes to be a Federal contractor is not exactly certain as to what that entails. And, in fact, there is a concern by some religious contractors that have been expressed to me, that they have to actually sacrifice a portion of their religious character in order to be a Federal contractor. That concern I have. I have that concern. Religious discrimination is a problem, be it against an individual based on their religious beliefs, or a religious organization. The First Amendment does not allow discrimination based on religion. So that is a concern. It is 1 of the 10 protections OFCCP is entrusted to protect, just as important as the other 9. Mr. COMER. Director, we have heard from employers that OFCCP enforcement and interpretations of the law and its purview vary widely from regional office to regional office. This can be especially challenging for companies that operate in multiple states around the country. What are you doing to supervise OFCCP's regional offices to ensure they interpret and apply the law consistently and fairly? Mr. LEEN. We are taking several actions in that regard. First, we issued what is called the preliminary determination notice directive, and that directive ensures that whenever OFCCP is going to issue a preliminary finding, that has been reviewed by both career staff and myself in the national office to make sure that what we are doing is consistent across all regions and that there is substantial competent evidence supporting what action we are taking. In addition to that, we are--it has been--let me tell you, it has been a focus of--we have quarterly senior leadership meetings with our regional directors, it is a focus of mine in every one of those meetings that you can't be treated differently in Miami than you are being treated in Seattle. We need to be strict in enforcing the law, but we need to be equally strict in enforcing the law. And we also need to make sure that we are achieving remedies in all parts of the country in the same way. It shouldn't depend on who the Regional Director is. Mr. COMER. Chair Dhillon, you discussed in your testimony that EEOC has made significant progress in addressing and reducing the charge backlog. This is welcome news since members of this Committee on both sides of the aisle have been critical of the EEOC's inability to keep the backlog at a manageable level, resulting in protracted investigation and litigation that creates unnecessary uncertainty for workers and employers. I agree with you that justice delayed is justice denied. With this in mind, could you elaborate on what EEOC is doing to ensure discrimination charges are investigated fairly and resolved promptly? Ms. DHILLON. Thank you, Congressman, and I appreciate your kind words and I know that all the hardworking employees at the EEOC very much appreciate it, because it has been an enormous effort. One of the changes or enhancements to the process that EEOC embarked on under Acting Chair Lipnic's leadership and that I affirm and support, is paying more attention at the intake stage. So when an employee comes to the EEOC with a concern, they can schedule an appointment or they can come in on a walk- in basis and an investigator can sit with that employee and talk to them about what their concern is. And what that does it is gives the EEOC very early on an opportunity to appropriately direct that potential charge. It may be the case that particular employee has a complaint that is covered by a law that the EEOC does not enforce. So rather than taking a charge and going through the process, we can instead swiftly direct that employee to where they need to go to get appropriate redress. It may be that when the employee understands the process, including the fact that their employer is going to be notified, they may decide they do not want to proceed at that point. So the intake process has been a valuable part of helping us to manage our inventory. Mr. COMER. Thank you. Madam Chair, I yield back. Mrs. HAYES. Thank you. I now recognize from Nevada, Miss Lee. Ms. LEE. Thank you, Madam Chair. Thank you all for being here and dealing with our vote situation. Listen, earlier this week this Committee in a bipartisan manner passed the Older Americans Act, which provides critical nutrition, legal, and transportation services for older Americans, which comes obviously at a time when we are experiencing a shift in our national age demographics as more and more baby boomers are retiring. Which brings me to think about the future of work and the number of dynamics that we must evaluate, especially in terms of worker protections. In my home State of Nevada, we have well known industries that drive our economy. And as every industry is unique, there are always cases that affirm the need for robust worker protections and an overseer of equity in our workplace. As an example, we have Deborah Jeffries, who has been a cocktail server at Bally's Las Vegas Hotel and Casino benefitting from a union contract through Culinary Union 226. She has been able to work no matter her age, which has been an important factor for many companies within the industry who consider it when they are hiring. And as an example, another local casino was just sold and its cocktail servers were all terminated and not rehired because of their age. Deborah obtained her same pay as her male counterparts and has seniority and pay and will eventually retire with security and dignity. Chair Dhillon, as you said earlier, age discrimination charges are about 20 percent of the charges the EEOC receives. Earlier this year, as the Chair Bonamici talked about, we passed a bipartisan, again POWADA, the Protecting Older Workers Against Discrimination Act. Have you reviewed POWADA? And, in your view, will this legislation strengthen EEOC's ability to enforce Age Discrimination in Employment Act? Ms. DHILLON. Well, thank you, Congresswoman Lee, for your question. As I did testify earlier, charges related to age discrimination claims are a substantial part of the EEOC's charge inventory. Indeed-- Ms. LEE. A yes or no, will it-- Ms. DHILLON. I can't comment on a particular piece of legislation. What I can say is that myself, my fellow commissioners, indeed, the entire commission, is motivated and devoted to pursuing these kinds of claims. And if there is additional legislation that is passed, we are committed to enforcing that law as well. Ms. LEE. Okay. Would you mind providing EEOC's views in writing with respect to that for the Committee? Ms. DHILLON. We can certainly provide technical assistance to the Committee. Ms. LEE. Thank you. As Ranking Member Comer just talked about, in 2008 you had 1,968 FTEs, you reduced your backlog by 19.5 percent, which is incredible. What is even more surprising is according to a report from Politico yesterday, you had on average 758 investigators in 2018, which was down from 825 that EEOC had on average during the Obama Administration. How, with these limited resources--you spoke about more attention given at intake, were there any other factors that led to this reduction and how were you able to achieve that? Ms. DHILLON. Well, Congresswoman, I saw that Politico piece as well and I actually reviewed some data and I don't completely agree with the figures that Politico cited. We currently have 765 investigators. We added investigators on staff during fiscal year 2019 and also added investigators on staff in 2018. But in addition to the intake process, I think the backlog has been managed down so that we now have a workable inventory. What that allows our investigators and our attorneys to do is to tackle the charges when they are new. And it is easier to do because memories are clearer, the evidence is more readily available, and so you can move charges through the process more effectively and more efficiently because the events are still fresh in people's mind. So I think that part of our ability to effectively manage our inventory now is a function of the fact that the backlog has been reduced. And that is due to a tremendous amount of hard work by all of the employees of the EEOC. And I really think that they should be commended for their work Ms. LEE. Thank you. Madam Chair, before I end, I just would like to submit into the record letters from the Washington Lawyers' Committee sharing workers' experience that detail women of color and workers with disabilities' cases being dismissed or being given the right to sue letters in such little time that it is hard to imagine that these claims could have been investigated. It may be because of your intake procedure, but I would like to enter those into the record. Mrs. HAYES. Into the record without objection. I now recognize from South Dakota, Mr. Johnson. Mr. JOHNSON. Thank you very much. I want to start by thanking the panelists for their efforts to fight against unlawful discrimination. Some of you have done it for many years and our country is better off because of your efforts, so thank you. I also want to thank the Chair and the Ranking Member for having this hearing. I think the First Amendment is a beautiful part of the American experience and I think protecting religious liberty has long been a fantastic powerful part of our country's history. So I am glad to continue that conversation. A question for Ms. Brown Barnes and then, Mr. Leen, you could feed in as well. But I was intrigued by the 2017 GAO study that did interviews with six faith-based Federal grantees. And all six of those organizations indicated that, you know, maintaining their religious character was important to them. And if there are any key takeaways from that report, whether it was interviews or any particular insights that you have, I would be interested in them. Ms. BROWN BARNES. The key takeaways is that they felt that coreligionists, or those that share their belief and faith, help them accomplish their mission. Mr. JOHNSON. I mean it seems to me that would be important for secular organizations too, right? I mean let us have a purpose drive approach toward the mission of this nonprofit, or of this corporation. I mean let us have a shared end in sight. So I would think that is not of importance only to religious organizations, but all organizations. Is that right, you think? Ms. BROWN BARNES. Yeah, I think that is right, but we just heard specifically that in order to do or provide the type of services, the type of community outreach, the things that they were doing, that it was helpful for them to have coreligionists. Mr. JOHNSON. Yeah, sure. Mr. Leen? Mr. LEEN. What is important to me, relating to religious organizations that are Federal contractors or which to be Federal contractors, is to ensure that we are following recent Supreme Court precedent, executive orders, guidance from the Attorney General, that we are following the First Amendment. That is important to me. So we have proposed a rule. We have received over 109,000 comments. I am limited in what I can say, other than that, because I need to look at those comments to make sure that we are considering everything that should be considered in proposing a rule. As stated, though, in the preamble, religious liberty is a core liberty, a core freedom. As I mentioned before, the executive order expressly mentioned 10 protections, religion being one of them. Title VII had a religious exemption. So this is something that goes back many years. So really all the way back to the Bill of Rights. Mr. JOHNSON. Yeah, I think that is well said and we will pick up there. And I am not asking you to speculate on where the rules would go of course, but rather about the rules in their proposed format. You know, we had the strongly bipartisan 1993 Religious Freedom Restoration Act, we have had a number of Supreme Court decisions. Mr. Leen, my assumption would be the proposed rules are in alignment with those decisions and those Congressional acts. Care to elaborate? Mr. LEEN. Yes. That is the intent of the proposed rule, to be consistent with applicable law and to clarify our regulations, OFCCP's regulations, to be consistent with applicable law. We are open-minded, we certainly want to get it right, so that is why we are going to take a look at the comments and then make a decision as to how to proceed. But that is the intent of the proposed rule. Mr. JOHNSON. Ms. Dhillon, I wanted to give you a bite at the apple. You know this is something that EEOC doesn't deal with maybe quite as much, the topics we have had, but I don't want to shut you out if you have got something to offer. Ms. DHILLON. Well, I am familiar with OFCCP's NPRM at a high level. Certainly interested in watching the process as it unfolds and as the comments come in, and I applaud them for going through the appropriate rule making process. I think it is the right way to handle an issue like this. Mr. JOHNSON. Well, thanks very much to all the panelists. And I yield back. Mrs. HAYES. Thank you. And now I will recognize myself for 5 minutes. Thank you all so much for being here. According to a 2016 report by the Economic Policy Institute, my home State of Connecticut is second only to New York in terms of statewide income inequality. In order to address pay discrimination and income inequality, we need the data. So, Chair Dhillon, in your responses to several of the Senate Help Committee Ranking Member Murray's questions during your September confirmation hearings, you stated, and I quote ``Pay discrimination is a serious issue and an appropriate focus of the EEOC efforts. I believe that transparency of pay data is a useful tool.'' Do you still believe that transparency of pay data is a useful tool? Ms. DHILLON. Yes, I do. Mrs. HAYES. In that same confirmation hearing, in response to Ranking Member Murray's question, he asked, and I quote, ``Will each of you commit to me that you will make finalizing a transparent pay data collection by the EEOC a priority and that it will be finished in a timely manner?'', to which you responded yes. Do you still hold that belief to be true? Ms. DHILLON. Yes, I do. Mrs. HAYES. So given that you have discontinued the component 2, will you be conducting a pilot program so that we can continue to collect pay data? Ms. DHILLON. Congresswoman, thank you for your question. We are continuing to collect component 2 pay data. To be clear, we are under court order to do so and the EEOC is complying with that court order and will do so, so long as the order is in effect. What the EEOC has done is, pursuant to the Paperwork Reduction Act, the PRA, we have indicated that we do not continue--we do not--we are not asking OMB to grant us the authority to continue to collect component 2 pay data in the future. Instead, as we indicated in the PRA, what we intend to do is go through a Title VII notice of rule making process so that we can solicit input and develop a type of data collection that meets our obligations under the PRA, which is to minimize the burden to the entities who are required to respond while matching that burden against the utility of the data to the EEOC. I do think that a pilot would be part of that. And, in fact, that was one of the recommendations made by the National Academy of Sciences in 2012. The EEOC did not adopt that recommendation and did not conduct a pilot study in connection with the 2016 PRA, but I believe that a pilot study would be appropriate. Mrs. HAYES. And you have also stated here today, and in the notice of information collection that was published, it says that there is an undue burden for collecting this type of information. Are you aware that the EEOC went through 6 years of analysis, significant interagency consultations, and multiple lengthy notice and comment periods during the issuing of component 2? I am sorry--yes, of component 2? Have you reached out and used any of that data or contacted the outside vendors or any people who collected this information previously? Ms. DHILLON. Congresswoman, I reviewed the comments that were submitted in 2016. It was not a notice and comment rule making process under the APA, as I believe it should have been. Instead, it was a 60-day PRA notice and in response to that groups submitted comments. And I have reviewed those comments. And the comments pointed out concerns that the respondent community had both with the utility and with the burden. In terms of the burden, in 2016, the EEOC calculated the burden at being approximately $53 million. But what they did was they calculated the burden at the employer level. So they treated every employer the same, regardless of size, regardless of the number of employees that they would have to report on, regardless of the configuration of their payroll systems, their HRIS systems, if they even have those kinds of systems in place. They assumed the burden to every employer was the same. Fast forward to the PRA notice that we submitted last week, at my direction our data scientists and our statisticians redid the burden calculation and they calculated the burden per report that an employer needed to complete because in some cases, if any employer has more than one establishment, they have to file multiple reports. And if an employer is going to submit additional reports, it stands to reason that the burden is higher. And, in fact, when that calculation was rerun, it was determined that the burden was 10 times higher than had originally been calculated. I would also note that the burden analysis that was conducted as part of the PRA notice that was submitted last week is consistent in methodology with what the EEOC previously did up until 2016. In 2016 the EEOC changed its approach. We went back to the prior approach in connection with the Federal Register notice. Mrs. HAYES. Thank you. I would like to ask unanimous consent that I submit a letter into the record from the Examining Policies and Priorities of Equal Opportunity Commission Office. Without objection, so ordered. I think that concludes all of our Member questions for today. I remind my colleagues that pursuant to Committee practice, materials for submission for the hearing record must be submitted to the Committee Clerk within 14 days following the last day of the hearing, preferably in Microsoft Word format. The materials submitted must address the subject matter of the hearing. Only a Member of the Committee or an invited witness may submit materials for inclusion in the hearing record. Documents are limited to 50 pages each. Documents longer than 50 pages will be incorporated into the record via an internet link that you must provide to the Committee Clerk within the required timeframe, but please recognize that years from now that link may no longer work. Again, I want to thank the witnesses for their participation today. What we have heard is very valuable. Members of the Committee may have some additional questions for you and we ask the witnesses to please respond to those questions in writing. The hearing record will be held open for 14 days in order to receive those responses. I remind my colleagues that pursuant to Committee practices, witness questions for the hearing record must be submitted to the Majority Committee Staff or Committee Clerk within 7 days. The questions submitted must address the subject matter of the hearing. I now recognize the distinguished Ranking Member for his closing statement. Mr. COMER. Well, thank you. And I want to again thank the witnesses for coming to testify today. It is clear from the testimony heard here today that the Trump Administration, including the EEOC and OFCCP, continues to combat discrimination in the workplace. I am encouraged by the seriousness with which Chair Dhillon and Director Leen take their obligations to enforce nondiscrimination laws. I applaud the EEOC's recognition that the current employer pay data collection is a burdensome and costly mandate on job creators and a threat to the privacy of American workers. Furthermore, one of the things that makes America exceptional is the First Amendment, including its protection of the free exercise of religion. I am encouraged by OFCCP's proposed rule to protect the religious freedom of Federal contractors and I hope the final rule will be finalized swiftly. Thank you again for your testimony and I yield to the Chairwoman. Mrs. HAYES. Thank you. I now recognize myself for the purposes of making a closing statement. Thank you again to our witnesses for being here today. The EEOC and OFCCP's enforcement tools are critical to protecting American workers from discrimination. As our workplace becomes more diverse and as our society confronts pervasive issues like harassment and implicit biases, workers will increasingly rely on effective enforcement to defend their rights to be free from discrimination. Today's hearing highlighted recent policy shifts at the EEOC and OFCCP that raise serious questions about the agencies' commitments to fulfilling their responsibility to workers across America. Although this hearing is coming to a close, our oversight of these agencies will continue. Women, people of color, older Americans, workers with disabilities, and the LGBTQ community need our advocacy and oversight efforts to persist. I hope our witnesses will do everything they can to get these agencies back on track. If there is no further business, without objection, the Committee stands adjourned. [Additional submissions by Ms. Brown Barnes follow:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [Questions submitted for the record and their responses follow:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [Ms. Brown Barnes responses to questions submitted for the record follow:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [Ms. Dhillion responses to questions submitted for the record follow:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Attachment 1A: https://www.govinfo.gov/content/pkg/CPRT- 116HPRT41267/pdf/CPRT-116HPRT41267.pdf Attachment 1B: https://www.govinfo.gov/content/pkg/CPRT- 116HPRT41268/pdf/CPRT-116HPRT41268.pdf Attachment 2A: https://www.govinfo.gov/content/pkg/CPRT- 116HPRT41280/pdf/CPRT-116HPRT41280.pdf Attachment 2B: https://www.govinfo.gov/content/pkg/CPRT- 116HPRT41281/pdf/CPRT-116HPRT41281.pdf [Mr. Leen responses to questions submitted for the record follow:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [Whereupon, at 4:04 p.m., the subcommittee was adjourned.] [all]