PRESENT:

JANET DHILLON, Chair

CHARLOTTE A. BURROWS, Commissioner

VICTORIA A. LIPNIC, Commissioner

ALSO PRESENT:

SHARON F. GUSTAFSON, General Counsel

ANDREW F. MAUNZ, Legal Counsel

BERNADETTE B. WILSON, Executive Officer

                       

This transcript was produced from a DVD provided by the Equal Employment Opportunity Commission.

 

TABLE OF CONTENTS

Call to Order and Opening Remarks

Announcement of Notation Votes

Formal Opinion Letter on Federal Work Opportunity Tax Credit (WOTC)

Rescission of Compliance Manual Section 604, Theories of Discrimination

Rescission of Compliance Manual Section 604, Appendix C, Polygraph Examinations

Adjourn

P-R-O-C-E-E-D-I-N-G-S

1:00 p.m.

CHAIR DHILLON:  Good afternoon, everyone, and welcome.  The meeting will now come to order.  This meeting was noticed and is being held in accordance with the requirements of the Sunshine Act.  Today's meeting is open to the public to listen to the Commission's deliberations and voting.

Welcome, and thank you to my fellow Commissioners, to all EEOC staff, and members of the public who are participating by phone.  To access our closed captioning service, please go to our website and click on the link.

This is truly a historic event in EEOC history: our first ever virtual Commission meeting. I wish the circumstances that drove the decision to have this virtual meeting were different, but, of course, we are living in extraordinary times. A special thanks to the many employees throughout the agency who have worked diligently to set up this meeting, including my staff, the Office of Legal Counsel, and the Office of Information Technology.

Additionally, I would like to thank all EEOC employees for their work during these challenging times to ensure we are meeting the need for information about the statutes we enforce and continuing to enforce the federal anti-discrimination laws.  It has been inspiring to see how the EEOC's employees have risen to the challenge of working remotely.  Across the agency, EEOC employees in every program office have demonstrated creativity, ingenuity, thoughtfulness, and, importantly, dedication to carrying out our mission.

As part of our efforts around COVID‑19, the Office of Legal Counsel published a webinar on March 27th addressing questions that we have received from stakeholders about the ADA and other statutes.  The agency has also published a Technical Assistance Document titled, "What You Should Know About COVID‑19 and the ADA, the Rehabilitation Act, and Other EEO Laws," which is updated periodically and is available on our website, eeoc.gov.

Promoting equal opportunity and enforcing the nation's federal workplace anti-discrimination laws remains as vital as ever, and I thank all of EEOC's employees for their continued commitment to this mission.

Let me briefly explain the procedures for this meeting.  A verbatim transcript will be made of today's proceedings.  For that purpose, the meeting is being recorded.  We will then post a transcript on the EEOC website at www.eeoc.gov.

As the presiding officer, I'm responsible for regulating the course of this meeting and shall dispose of all procedural matters.  While this meeting is open to the public, remarks and questions will not be taken from the audience.

Each agenda item will be discussed and voted on in turn.  Representatives from the Office of Legal Counsel will provide a summary of the item and be available to answer the Commissioners' questions.  Following the presentation, I will call on each Commissioner to address the matter at issue.  We will have two rounds for each agenda item.  During these rounds, Commissioners may pose questions to the presenters and offer their own comments and observations.  If a Commissioner seeks to amend an agenda item, she must offer that amendment while she has the floor.  If the motion to amend is seconded, we will move to a debate on the proposed amendment.  After the amendment is voted on, we will resume debate on the underlying agenda item, which may or may not have been amended.

If you are not speaking, please mute your phones.

At this time, I'm going to ask Bernadette Wilson from the Executive Secretariat to announce any notation votes that have taken place since the last Commission meeting. 

Ms. Wilson?

MS. WILSON:  Good afternoon, Madam Chair, Commissioners, General Counsel, Legal Counsel.  I'm Bernadette Wilson from the Executive Secretariat.

The Equal Employment Opportunity Commission initiated vote posting or notification of actions by the Commission to the public in November of 2019.  So this report covers actions by the Commission from October 31st, 2018, through October 31st of 2019. 

During the period October 31st, 2018, through October 31st, 2019, the Commission approved 72 items by notation vote:

      Approved Litigation in ten (10) cases;

      Approved Amicus participation in two (2) cases;

      Approved two (2) Notices of Proposed Rulemaking, one Amending 29 CFR Part 1601 and 1626, and one Implementing Revisions to 29 CFR Section 1614.407;      

      Approved an Amendment to the Proposed Fall 2019 Regulatory Agenda and the Paperwork Reduction Act (PRA) Notice for 2019;

      Approved Amendments to the Department of Justice and EEOC Title VII Memorandum of Understanding;

      Approved the following nineteen (19) contracts:  West Publishing Print Subscription Services; Agency-Wide Security Upgrade, Enterprise Physical Access Control System; Labor Economist in support of Litigation in a court case; OIT Acquisitions for twelve (12) IT Procurements; a Supplementary Request for Funds; and 4th Qtr. Acquisitions; Budget Allocations for State and Local Programs; Interagency Agreements for Health Unit Services; EEOC FedStrive Advantage Services; and EEO Special Tabulation Census; Automated Learning Content; OPM HR Solutions Support; Respectful Workplace Training; the National Opinion Research Center (NORC) Contract Modification; Renewal for Bloomberg BNA Daily Labor Report; EEOC Enterprise Data Warehouse; DatabaseUSA; SBA 8(a) Program for Clerical Support Services; and Enterprise Data Warehouse;

      Approved seventeen (17) Requests for Hardship Exemptions from EEO‑1 Component 2 Filers;

      Approved thirteen (13) Rescissions of Guidance documents: Wellness Incentive Provisions; Compliance Manual Chapter on Definition of Disability; Enforcement Guidance on Qualified Individual with a Disability; Enforcement Guidance on St. Mary's Honor Center v. Hicks; Executive Order 13145; Definition of Willful Violation under the ADEA; Interpretive Memorandum: Martin v. Wilks; Section 112 of the Civil Rights Act; ADEA BFOQ; ADEA Collective Bargaining Agreement Arbitration; Employer Standing to Bring Charge against Labor; ADEA Integrated Seniority List; and ADEA Compulsory Retirement of Tenured Faculty;

      Approved a Temporary Delegation of Commission Authority; and,

      Approved Resolutions for five (5) Retirements.

Madam Chair?

CHAIR DHILLON:  I thank you, Ms. Wilson.

COMMISSIONER BURROWS:  Madam Chair, I have two privileged motions, which take precedence over other business. 

I'd like to offer, first, a resolution and move that it be made a special order for the next meeting.

"Resolved, that the Commission shall hold a public meeting to address issues raised by the COVID‑19 pandemic under the Americans with Disabilities Act and other laws within the Commission's jurisdiction."

That's the first privileged motion.  The second is that we resolve to ‑‑

CHAIR DHILLON:  Commissioner Burrows,

COMMISSIONER BURROWS: Yes, Chair Dhillon?

CHAIR DHILLON:  Commissioner Burrows, if you are making a motion, why don't we do them one at a time?

COMMISSIONER BURROWS:  I agree, that sounds reasonable.  So, the pending motion is the motion that we resolve to hold a public meeting to address issues raised by the COVID‑19 pandemic under the Americans with Disabilities Act and other laws within the Commission's jurisdiction.

CHAIR DHILLON:  Is there a second to the motion? Hearing no second, the motion fails.

Commissioner Burrows, the second privileged motion?

COMMISSIONER BURROWS:  Yes, thank you, Madam Chair.

The second privileged motion is that the Commission adopt a resolution that it shall close a portion of its next meeting, pursuant to the Sunshine Act, 5 USC Section 552(c)(7), to address and vote on any litigation matters that are pending in our electronic voting system at that time.

CHAIR DHILLON:  Is there a second to the motion? Hearing no second, the motion fails.

So, turning back to my opening comments. We are here this afternoon to consider three items: first, an Opinion Letter concerning the Work Opportunity Tax Credit; second, the Rescission of Compliance Manual Section 604 titled, "Theories of Discrimination;" and third, the Rescission of Compliance Manual Section 604, Appendix C, "Polygraph Examinations."

The Work Opportunity Tax Credit Opinion Letter is a proposed formal written opinion of the Commission in response to a request asking for the EEOC's opinion on whether an employer's use of the federal Work Opportunity Tax Credit program complies with federal equal employment opportunity laws.  Section 604, "Theories of Discrimination," and Section 604, Appendix C, "Polygraph Examinations," are guidance documents that have been proposed for rescission.  I want to express my appreciation to Commissioner Burrows for requesting that each of these items be put on the agenda, so that the public can listen in to the Commission's deliberation on these items.

The first item on the agenda is the Work Opportunity Tax Credit Opinion Letter.  The Commission has been asked to provide its views on whether an employer's use of Internal Revenue Service Form 8850 in applying for the federal Work Opportunity Tax Credit, otherwise known as WOTC, comports with the laws enforced by the Equal Employment Opportunity Commission.

The Commission staff has previously provided informal discussion letters that reflected the professional staff's view that an employer's proper use of Form 8850 to apply for Work Opportunity Tax Credits did not violate the laws enforced by the EEOC.

At today's meeting, the Commission itself will consider whether to issue a formal opinion letter of the Commission, pursuant to its authority under Section 713 of Title VII and 29 CFR Section 1601.93 and Section 7 of the ADEA and 29 CFR Section 1626.

The opinion letter at issue today was drafted by our professional staff within the Office of Legal Counsel.  It was circulated to program offices within the agency who had the opportunity to provide their input and analysis before the letter was presented to the Commissioners for their consideration.  Once the letter was circulated to the Commissioners, they had the opportunity to provide input and comments.  And the version that is before the Commission today includes some of that input provided by Commissioners.

In light of the challenges facing our country now, I believe that moving this letter forward and providing the Commission's formal opinion is more important than ever.  Workers within 19 groups encompassed by the Work Opportunity Tax Credit program are some of our country’s most vulnerable citizens.  They deserve action by the Commission, and a formal opinion letter from the Commission will give employers the clarity they need to take advantage of these tax credits and to be incentivized to hire workers covered by this program.

I will now turn the meeting over to Ray Peeler, Assistant Legal Counsel for the Coordination Division, Office of Legal Counsel, to address the proposed opinion letter.

Mr. Peeler?

MR. PEELER:  Thank you, Chair Dhillon, Commissioners Lipnic and Burrows.  Thank you for the opportunity to participate in today's meeting.

I'm here to discuss the EEOC's longstanding efforts, including the letter on today's agenda, to explain that EEOC-enforced laws do not prevent employers from using the Work Opportunity Tax Credit, or WOTC, through IRS Form 8850, to hire individuals who have historically faced difficulties finding work.

The WOTC allows employers to take a credit against payroll taxes for hiring workers from targeted groups defined in the statute.  Currently, those groups include, among others, individuals with disabilities referred to vocational rehabilitation programs; individuals certified by other government job training programs, some of which may have age gaps; ex-offenders recently released from prison; military veterans with service-connected disabilities who meet other eligibility criteria; recipients of SNAP, or Supplemental Nutritional Assistance Programs, within certain age ranges; residents of Empowerment Zones and Rural Renewal Counties who, depending on geography, are likely to be members of a particular racial or ethnic group; and the long-term unemployed, which includes older workers in disproportionately high numbers.

To qualify for the tax credit, employers must determine applicant eligibility before making offers of employment.  One method for doing this is to ask applicants to complete IRS Form 8850 and certify their eligibility. 

The IRS and EEOC first coordinated on this form after the ADA passage to address concerns that the form amounts to pre-offer inquiries into disability status in violation of the ADA.  The IRS adjusted its form by including disability-related and non-disability qualification criteria under one checkbox, so that applicants could certify their qualification without identifying their disability status.

While veterans with disabilities remained a separate criteria on the form, the Form 8850 instructions made clear that this question fits an ADA exception because it encourages employers to hire these workers, given that a larger credit is available for hiring members of this group.

Despite these efforts by EEOC and IRS, the EEOC continues to receive questions and requests for written opinions regarding its legality under employment discrimination laws generally.  EEOC OLC staff wrote informal discussion letters on the matter in 2010, 2007, and 2004, asserting that the employers may use the WOTC form without violating Title VII of the Civil Rights Act, the Americans with Disabilities Act, or the Age Discrimination in Employment Act.

The letter before you seeks to definitively address the employer's use of the WOTC form, with approval of the Commission, as opposed to an informal discussion letter that explicitly cannot be relied upon.  Its text is measured, only applying to the employer's use of the form and giving hiring preferences to workers who fit its criteria.  It would not provide a defense for an employer's request for information inconsistent with Form 8850 or for an employer's use of the information for purposes other than to take advantage of the tax credit and hire workers who have faced historic difficulties gaining employment.

If approved, this letter would exercise the Commission's authority under Title VII and ADEA to issue such letters, as outlined in the EEOC regulations 29 CFR 1601.93 for Title VII and 29 CFR 1626.21 for the ADEA.  While the ADA does not provide the Commission with similar authority, this opinion letter may provide clarity by providing the Commission's official view on the issue under the ADA.

Thank you for your time, and I look forward to your questions.

CHAIR DHILLON:  Thank you, Mr. Peeler.

I now offer the floor to Commissioner Lipnic for comments or questions.

COMMISSIONER LIPNIC:  Thank you, Madam Chair.  Good afternoon, everyone.  And thank you, Ray, for that explanation of the WOTC form ‑‑ I guess we call it WOTC ‑‑ and how the questions on the form could implicate issues involving the Americans with Disabilities Act or the Age Discrimination in Employment Act, the ADEA.

The WOTC program helps employers hire targeted groups of individuals who have had challenges getting hired.  It's a win for the employer, who can use the tax credit to reduce its hiring costs by claiming a portion of the new employee's salary.  And it's a win for the individual to get a new job.  So it's certainly the case that the laws that the EEOC enforces are also intended to promote employment, and it's certainly in the EEOC's interest to ensure that other programs comply with our statutes.

Helping those who had difficulties in obtaining employment historically has become even more important in the situation that we're in now, the public health crisis that we're in.  And so I think this is definitely a worthy effort to make sure that the EEOC can put out clear guidance for employers to be able to take advantage of the Workforce Opportunity Tax Credit.

And I would note that I think I heard yesterday that, currently, in the crisis that we're in, there are now 26 million Americans who are unemployed.  So, certainly, anything that we can do, once we come out of this, to encourage hiring and help businesses to be able to take advantage of this, everyone will benefit.

I also want to say that, while most people are likely to associate the WOTC with providing opportunities for workers with disabilities and with young workers, I want to note that the most recent addition to the WOTC categories is the long-term unemployed.  And, as documented in my 2018 Report on the State of Age Discrimination in Older Workers, older workers have the highest rates of long-term unemployment.  And, actually, 16 out of the 19 WOTC-targeted groups include older workers.  Only three of the 19 targeted groups that benefit from the WOTC program are limited to individuals under 40 years of age.

So, a couple of questions for Mr. Peeler.  I understand that the requester’s primary concern is whether completing the WOTC form will expose them to liability under the EEO laws, particularly because the form asks about disability.  And I think you noted in your remarks that, after passage of the Americans with Disabilities Act, the IRS adjusted its forms so that applicants would be able to identify whether or not they had a disability.  And I wonder if you could tell us about any more recent interaction with the IRS about WOTC and the use of the form.

MR. PEELER:  Thank you, Commissioner Lipnic.  We actually have not had further direct interaction with the IRS on the use of the form.  The form already carefully included disability and non-disability-related folks under one checkbox to prevent people from having to identify themselves, and then it also has this disclaimer for the veterans with disabilities to make clear that requesting that information fits an exception to the ADA.  And so we've felt no need to go back to the IRS and discuss the form any further.

COMMISSIONER LIPNIC:  Okay.  And I gather the IRS has felt no need to come back to us?

MR. PEELER:  As far as I'm aware, that's right.

COMMISSIONER LIPNIC:  Okay.  One other question that I had is, you mentioned that the EEOC continues to get questions about the use of this form.  And I think you said that we've issued prior informal discussion letters in 2004, 2007, and 2010.  I'm wondering if you could give us some sense of how often or how many inquiries we get at the Commission about the ability for employers to use this form.  And then some information about the character of those.  Are they generally from small businesses?  Are they from tax advisory services?  Are they from large employers?  Anything along those lines.

MR. PEELER:  Okay.  So, I'll answer the second part first here.  Generally, questions have come from tax preparers, and in the course of advising their clients on tax matters, checking to determine whether there are any liability concerns for their clients using the information.

As far as total how many inquiries we have, I'm not certain.  We do take calls from the public and this issue does periodically come up and we usually direct the caller to the letters that we have.  But we don't have records of the nature of those calls.  So I can't tell you, all told, how many we have, but every time that we have issued an informal discussion letter it has been in response to a request for a written response that we've received from an employer or a tax preparer.

COMMISSIONER LIPNIC:  Okay.  And another question related to the letter before us today.  The organization who's requesting this letter, is this the first time they've requested something along these lines?

MR. PEELER:  No, it is not.

COMMISSIONER LIPNIC:  And can you give us an idea of how many other inquiries we've had from the requester and perhaps how many times we have answered them in the past?

MR. PEELER:  Well, I am aware of three myself.  We also sent a letter to them in 2009, which was not put on the website as an informal discussion letter.  But I am not sure about some of our older letters.  And, unfortunately, I would have to dig through our paper files in the office, which I currently don't have access to, in order to answer the rest of that question.

COMMISSIONER LIPNIC:  Okay.  And you said this in your remarks, but if you could just also clarify the distinguishing factor between an informal discussion letter and a formal opinion letter voted on by the Commission, as we're about to do today.

MR. PEELER:  Absolutely.  So, an informal discussion letter is written by staff, usually in the Office of Legal Counsel.  And it very explicitly says in the letter that it cannot be relied upon as an opinion of the Commission.  A formal opinion letter, which is before you today, would invoke the authority that the EEOC has under Title VII and the ADEA to provide formal opinions on a particular topic, which then can be used as a defense by employers if they are in litigation on these issues.  And so long as they have acted in good faith and in compliance with the terms of the letter, then that's a defense to liability for them.

COMMISSIONER LIPNIC:  And just if you could clarify there which of our EEO laws provide for the affirmative defense?

MR. PEELER:  Sure.  Well, Title VII and the ADEA do.  The ADA does not.

COMMISSIONER LIPNIC:  Okay.  Those are all my questions for now, Madam Chair.  I yield back my time.

CHAIR DHILLON:  Thank you, Commissioner Lipnic.  Commissioner Burrows?

COMMISSIONER BURROWS:  Thank you, Madam Chair.  I wholeheartedly support these efforts to promote workplace diversity and the hiring of disadvantaged workers using this important tax credit.  I do, however, believe that if the agency is going to issue a public letter explaining that employers may use the tax credit without violating federal law -- and it should do so -- we should not do so in a form that creates a new formal legal defense to Title VII and the ADEA.

EEOC, as noted, has published at least 12 informal discussion letters on this topic over the past 19 years without any Commission vote.  They consistently state that collecting information from applicants to apply for the WOTC does not violate federal EEO laws.  And so it's really unnecessary to take this added step of creating a new legal defense.

Unlike those former new letters, this proposal before us today would create a binding defense in court under Section 7 of the Age Discrimination in Employment Act and Section 713(b) of Title VII of the Civil Rights Act of 1964.  The Commission's authority to issue such defenses is a momentous power that should not be exercised lightly.  Indeed, it's a greater power than our power to issue binding regulations, because courts owe deference to our regulations only if they're promulgated after public notice and comment, and only if the court believes that they represent a reasonable interpretation of the law. 

No such constraints exist with respect to opinion letters voted on by the Commission. Courts must grant the defense to any employer who proves he or she relied in good faith on the Commission voted letter, even if the court believes the Commission's rationale is unreasonable and even if we later rescind the letter.  Accordingly, any such defense should be very carefully considered by this Commission, fully vetted internally by our program offices to ensure that we do not have unintended consequences.

For this reason, the power to issue such defenses, appropriately, has been very rarely used.  To my knowledge, the Commission has never used this power, at least in the way we are proposing today.  The last time I could find is that we used it under Clarence Thomas during his chairmanship.  It appears, in the past four decades, we used it exactly once to create a legal defense under the ADEA and never under Title VII.  That letter was issued in response to a congressional inquiry, the letter issued in 1987, regarding ADEA coverage of appointed judges.

So, to my knowledge, we have never given out one of these new defenses simply because a private entity asked for it, except in the limited cases where it involved a settlement with EEOC. 

It's also improper and unnecessary to create these new legal defenses, because the private inquiry we're answering never even asked for that step.  They simply asked us to update the prior letter from 10 years ago.

This agency can provide effective guidance without doing this, and, more importantly, doing so would not meet our regulatory requirements.  To be clear, the EEOC regulations that are at issue here require specific facts.  The letter that we're responding to didn't include those.  It didn't even mention the words "Title VII."  And so there's no need to create such a defense.

If we ignore our own regulatory requirements for requesting a formal opinion letter, we exceed the request put to us, this Commission will open a Pandora's box by encouraging a cottage industry of consultants to lobby us to vote on all manner of defenses.  We will be inundated with requests, and the political pressures that go with it, seeking for policy changes outside the traditional process, which typically involves public input, notice, and comment review.

Our resources would be far better spent by issuing this letter without reference to Section 7 of the ADEA and Section 713 of Title VII.  That would give the requester exactly what it asked and everything it needs without any unintended consequences.

Finally, because, in addition to violating our regulations, which I'd like to speak more clearly to ‑‑ and to be clear, that includes facts must be issued -‑ the Title VII language is overly broad. 

And, therefore, I move to amend the letter to delete all references to Title VII of the Civil Rights Act of 1964.  The text of this amendment has been circulated previously to the Commission.

CHAIR DHILLON:  Is there a second on Commissioner Burrows' motion?

COMMISSIONER LIPNIC:  Second.

CHAIR DHILLON:  All right.  Commissioner Burrows, do you have anything further to state on your motion?

COMMISSIONER BURROWS:  I do.  As noted earlier, the Commission should not issue the pending letter in a form creating new defenses.  If it does so, we have to make some modest changes to ensure the new language is clear.

So, Title VII should be removed entirely from this letter.  First, as noted earlier, the inquiry to which our tax credit letter responds did not specifically request a formal opinion letter on how the WOTC could be used consistent with Title VII.  It's unnecessary and it would violate our regulations.

To be specific, under 29 CFR 1601.92, we are specifically required that the request for an opinion letter approved by the Commission must include a statement of all known relevant facts, and a statement of reasons why the Title VII interpretation or opinion should be issued.  It should also mention the name of the interested parties, which is not included.  There's no reference to Title VII.  There's no reference to interested parties.  There's no references to their names or addresses, which is specifically required under our regs.

The requesting firm merely stated that, quote, "It is interested in receiving an updated letter in support of the WOTC being done at the time of application."  The letter is about a paragraph long.  The firm never asked for a formal opinion letter.  And, more importantly, the inquiry does not provide any specific statements of relevant facts or any statement of reasons why a Title VII interpretation or opinion should issue.  Therefore, this inquiry is procedurally deficient and we cannot and should not issue a letter that creates new defenses.

Second, even if the problem could be corrected, I have significant concerns about the broad, cursory discussion of Title VII in the proposed opinion letter and the potential for harm that could result, providing a safe harbor from liability for actions that violate Title VII. 

Under Section 713(b), employers are protected from liability or punishment if they took certain actions in good faith, conformity with, and in reliance on the matters addressed in this letter.  If such a defense is established, it, "shall be a bar to the action or proceeding, notwithstanding that, after such act or omission, the opinions expressed in the letter are modified or rescinded or it's determined by judicial authority to be invalid or of no legal effect."  Any letter we issue providing such a defense should explain the contours of the defense precisely and ensure that we do not cut more broadly than intended.

To ensure employers act in good faith and in conformity with the EEOC's opinion letter, the Title VII sections should provide specific information on the activities that may be undertaken by employers seeking to apply for the WOTC and a clear explanation as to why those actions would not violate Title VII. 

Unfortunately, the proposed opinion letter does no such thing.  Its analysis of Title VII consists of just three sentences that state that use of Form 8850 does not put the employer in the position of violating Title VII.  Title VII does not expressly prohibit the employment inquiries disclosed in protected classes, and Form 8850 does not ask whether an individual belongs to a Title VII protected group.

In contrast, the proposed opinion letter details extensively why and how collecting information to apply for the WOTC would not violate the ADA and also the ADEA.  Although I'm not sure most employers would use any information collected to apply for the WOTC for illegitimate ‑‑ I'm sure, rather, that they would use it legitimately.  I'm very concerned that there may be some employers who will use this information to discriminate against some of the very groups targeted for assistance by Congress in the WOTC and use EEOC's formal legal opinion as a shield to protect them from liability.

Third, it's unnecessary to address Title VII in the proposed opinion letter because IRS Form 8850 asks employers questions related to age and disability status, but there's no questions about race, color, national origin, sex, or religion, which are the bases under Title VII.  So there's no reason to provide employers with a broad shield from Title VII liability here, and I ask that the amendment be approved.

CHAIR DHILLON:  So, the motion that is pending on the floor is Commissioner Burrows' proposed amendment to the opinion letter to delete from the document all discussion of Title VII.

Commissioner Lipnic, do you have any comments or any discussion points with regard to Commissioner Burrows' motion to amend?

COMMISSIONER LIPNIC:  Just briefly, I would say that I have a fair amount of experience with opinion letters that are offered by the Department of Labor in the Wage and Hour Division.  And while I appreciate Commissioner Burrows' concerns about unintended consequences here, and particularly as to Title VII, I do think that it's important to make sure that this tax credit, which is highly underutilized ‑‑ and we know that from information from the Department of Labor ‑‑ that the EEOC is in a position to not be standing in the way of the use of the letter.

CHAIR DHILLON:  Thank you, Commissioner Lipnic.

Commissioner Burrows, do you have anything in addition to offer in support of your motion to amend?

COMMISSIONER BURROWS:  I would like to ask the Office of Legal Counsel whether or not this letter went through internal clearance through the 108 process so that all of our program offices were able to see it before we take this broad step.

CHAIR DHILLON:  It is my understanding that it did.  Mr. Peeler, can you respond to Commissioner Burrows' inquiry?

MR. PEELER:  Yes.  Commissioner Burrows, the answer is yes.  The letter, the draft letter, was sent to program offices.  We received comments back from two offices and did make some conforming changes in response to their proposed comments.

CHAIR DHILLON:  Thank you, Mr. Peeler.

So, I'll now call for a vote on Commissioner Burrows' motion to amend the Opinion Letter.  And I think, for purposes of clarity for our simultaneous transcription, I'll call on each Commissioner for a vote.

So, Commissioner Burrows, are you voting in favor or against your motion to amend?

COMMISSIONER BURROWS:  I certainly am voting in favor of my motion.  Thank you for that.

CHAIR DHILLON:  Commissioner Lipnic?

COMMISSIONER LIPNIC:  No.

CHAIR DHILLON:  And I will vote no.  The motion to amend fails.

I'll now move on to my round of comments on the opinion letter.  The purpose of the Work Opportunity Tax Credit program is to encourage employers to hire and train people who are experiencing significant challenges that are often linked to unemployment.  There are 19 targeted groups that benefit from the WOTC program, including veterans who have service-connected disabilities or individuals whose families receive benefits from the Temporary Assistance for Needy Families program or the Supplemental Nutrition Assistance Program.

As explained in the draft letter, to qualify for one of these tax credits, the law requires employers to obtain official confirmation of the job applicant's WOTC status before the employer makes an offer of employment.  This may seem counterintuitive to human resources personnel who have been told by the EEOC, for example, to not inquire about an applicant's medical status until after extending a conditional job offer.  Because of this tension, I believe that the WOTC program is underutilized as the risk of discrimination claims is often unclear to employers.  And that is unfortunate because the design of the WOTC tax credits is to benefit the most vulnerable among us.

I hope that if the Commission approves this letter, it will ease the concerns of well-meaning employers and cause them to reconsider the use of the WOTC program.  I firmly believe that providing clarity to employers about the requirements of the Work Opportunity Tax Credit and the consistency of those requirements with federal anti-discrimination laws fulfills the EEOC's missions.

As I mentioned earlier, in light of the challenges currently facing our country, I think it's particularly important that we move this letter forward so that employers may be incentivized to hire workers who are covered by the WOTC program.

And, with that, we will move to the second round of Commissioners' questions or comments.  Commissioner Lipnic?

COMMISSIONER LIPNIC:  Thank you, Madam Chair.  I just wanted to make some comments in terms of outreach, since I think we all agree that this is certainly a worthwhile tax credit and want to encourage employers to take advantage of it.

As I mentioned a minute ago, it's my understanding that this tax credit is highly underutilized, and that's certainly how the Department of Labor's Office of Disability Employment Programs, otherwise known as ODEP, characterizes it on its website.  And I also, over the past few weeks, had a chance to listen to a webinar about the WOTC tax credit.  And the presenters there noted that about 90 percent of companies do not take advantage of the program.

So, the one thing that I would suggest, certainly for the Commission, in consultation with both the Department of Labor, the Small Business Administration, whenever they get a chance to come up for air, and certainly with the IRS, as well, is that we really increase our outreach efforts collectively to make sure that businesses and workers are able to benefit from the program.

I know that we mentioned the Workforce Opportunity Tax Credit in Appendix A in our Americans with Disabilities Act Primer for Small Business, which is located on our website.  And that document is linked to information under EEOC resources and on our webpages targeted to small business.

But I would suggest that I think we can probably do our part to help inform employers more about the program.  We might want to consider how we have our outreach folks in the field and our education coordinators and consult with them about their ideas, since they're our frontline contacts with employers.  But I think some extra effort to do our part to promote the use of this tax credit would certainly be a good thing and certainly benefit both the vulnerable workers and the long-term unemployed and people who can take advantage of -- or employers who can take advantage of this tax credit to hire them.

With that, I yield back my time.

CHAIR DHILLON:  Thank you, Commissioner Lipnic.  And I agree with you.  We will work on that.

Commissioner Burrows?

COMMISSIONER BURROWS:  Thank you.  As I noted earlier, Madam Chair, this Commission should issue the letter, but not in a form that creates new legal defenses.  But, if it does so, we should make some modest changes to ensure the new defenses do not cut more broadly than their purpose.

So I have a few short amendments to clarify the language.  I offer them in light of the pandemic's economic effects, because history has shown us that in times of financial hardship discrimination may increase, and persons of color, older workers, persons with disabilities, and vulnerable immigrant workers are often hit the hardest.  These vital workers contribute greatly to the collective well-being of our entire society.  The amendments I propose will help ensure we do not make them more vulnerable in times of financial uncertainty.  We must not let this double whammy of the pandemic with, on the one hand, the public health threat, and economic fallout on the other, be made worse by rising discrimination.

With this in mind, I move to amend the Work Opportunity Tax Credit opinion letter to delete footnote 10 as overbroad.

CHAIR DHILLON:  There is a motion on the floor by Commissioner Burrows to amend the proposed letter to delete footnote 10.  Is there a second? Hearing no second, the motion to amend fails.

COMMISSIONER BURROWS:  Thank you, Madam Chair.  I also move to amend the Work Opportunity Tax Credit opinion letter on page 6 to clarify that employers may only use the information collected on Form 8850 to apply for that credit, and to specify that use of the information to discriminate based on race, color, national origin, sex, or religion would violate Title VII.

CHAIR DHILLON:  Commissioner Burrows has proposed an amendment to modify, as I understand it, the first full paragraph on page 6.  Is that correct?

COMMISSIONER BURROWS:  That's right.

CHAIR DHILLON:  So you would add text to the end of the first full paragraph of page 6, is that correct?  Is that the form of your amendment?

COMMISSIONER BURROWS:  Correct.  That was circulated previously.  I am happy to read it, if that's necessary.

CHAIR DHILLON:  Yeah, I think, for purposes of the record, could you read the text that you propose adding to the opinion letter?

COMMISSIONER BURROWS:  I have a question of parliamentary inquiry as to whether or not the amendments are going to be printed in the record separately?

CHAIR DHILLON:  I will take that under advisement.  Would you like to read ‑‑

COMMISSIONER BURROWS:  The letter ‑‑

CHAIR DHILLON:  Would you like me to read the text or would you like to read the text of your amendment?

COMMISSIONER BURROWS:  It follows, "Of course, employers may not base employment decisions on information about job seekers' race, color, national origin, sex, or religion, whether gleaned from Form 8850 or otherwise.  Further, as with respect to the ADA and ADEA, only proper non-discriminatory use of Form 8850 will prevent employers from violating Title VII."

This language is short and clear and should be completely uncontroversial.  I'd ask that it pass unanimously.

CHAIR DHILLON:  So, Commissioner Burrows has read her amendment, which is to add text to the opinion letter to modify the first full paragraph on page 6.  Is there a second to her motion to amend?

COMMISSIONER LIPNIC:  Second.

CHAIR DHILLON:  Commissioner Burrows, do you have anything further to state in support of your motion?

COMMISSIONER BURROWS:  Yes.  This language would allow employers to use the WOTC for its intended purpose without any unintended consequences.  An employer that wishes to collect information from applicants for the legitimate purpose of obtaining the tax credit is totally free to do so.  That's clear from the rest of the letter.  But this added language would ensure that it does not go beyond the Work Opportunity Tax Credit into other areas.

Unfortunately, there may be situations where employers could use the information collection process to discriminate against protected applicants.  It's short enough to fit into a tweet and merely states a principle on which we should all agree: that although employers may collect information to fill out IRS Form 8850, they nonetheless may not discriminate against applicants based on their race, color, national origin, sex, or religion.  I can think of absolutely no legitimate reason why any of us would hesitate to affirm this bedrock principle of civil rights law.

As I previously noted, I have significant concerns about the cursory discussion of Title VII in the proposed opinion letter and the potential for harm to vulnerable communities that could result if our language on Title VII sweeps too broadly, particularly in light of the current pandemic's economic effects.

Communities of color are facing some of the harshest impacts of COVID‑19 across this nation.  Black Americans are dying of COVID‑19 at a rate of roughly 2.5 to 3 times higher than every other racial group.  Some of the highest infection rates are occurring on Native American reservations, including the Navajo.  Native Americans, African Americans, and Latinos also have a greater incidence of certain diseases, like diabetes, that make COVID‑19 symptoms more severe.  Asian Americans are being unfairly blamed for the pandemic and in some instances targeted for hate crimes.

The most recent job loss data from March shows that while the share of white workers who are employed fell by 1.1 percent last month, people of color have lost work at far higher rates.  Last month, black employment fell by 1.6 percent, Asian employment fell by 1.7, and Latino employment fell by 2.1.  And we know that, historically, in economically hard times, people of color are hit the hardest because they face the additional hurdle of discrimination in the workplace.  That is, after all, why this agency was created.

So we should not be cavalier about the prospect that we might unintentionally cut back on the very law that protects these people against race, national origin, and color discrimination.  The amendment I propose is necessary to ensure that we do not leave these vital workers who contribute so much to the collective well-being of everyone in our society more vulnerable in times of financial uncertainly.  Simply put ‑‑

CHAIR DHILLON:  Thank you, Commissioner Burrows.

Commissioner Lipnic, do you have anything to say with respect to Commissioner Burrows' amendment?

COMMISSIONER LIPNIC:  No, not at this time.

CHAIR DHILLON:  All right.  Then for purposes of, again, clarity of the record, I will do a roll call vote.

Commissioner Burrows, how do you vote?

COMMISSIONER BURROWS:  Madam Chair, I have a point of parliamentary inquiry, please.

CHAIR DHILLON:  Yes, Commissioner Burrows.

COMMISSIONER BURROWS:  My question is, I had understood, based on our prior rules as established in previous such meetings of the Commission, and the communications that we had in advance of the meeting to ensure that it would proceed smoothly, that there would be two rounds of debate with respect to amendments.  So I have a parliamentary inquiry on the reasons for this change in the rules.

CHAIR DHILLON:  Well, I don't believe there was a formal rule, but do you have anything further to offer with respect to this particular amendment?  And, again, following the rules of decorum under Robert's Rules, I urge you to confine your comments to the specifics of the amendment that is on the floor.

COMMISSIONER BURROWS:  Thank you.  I do want to add that these sentences are simple and non-controversial.  They're short enough to publish on Twitter and they would simply be added to the first full paragraph on page 6.

And again, I repeat, of course, employers may not base employment decisions on information about job seekers' race, color, national origin, sex, or religion, whether gleaned from Form 8850 or otherwise.  Further, as with respect to the ADA and ADEA, only proper non-discriminatory use of Form 8850 will prevent employers from violating Title VII.

So, again, I don't see any controversy with that, but I want to be clear that I am open to other proposals.  The idea is to put Title VII in this letter on the same footing as the ADA and the ADEA; in other words, some clarity about what it is we mean.  Again, I think this is not going to have legal effect because it does not follow our rules as to Title VII, but, at a minimum, we should explain what we're talking about.

CHAIR DHILLON:  Thank you Commissioner Burrows.  And again, so that the record is clear, and to assist with our simultaneous transcription of the meeting, I will ask for a roll call vote.

What is on the floor is Commissioner Burrows' amendment to modify the first full paragraph on page 6 with the language that she has read into the record of the meeting.

Commissioner Burrows, how do you vote?

COMMISSIONER BURROWS:  Aye.

CHAIR DHILLON:  Commissioner Lipnic, how do you vote?

COMMISSIONER LIPNIC:  No.

CHAIR DHILLON:  And I vote no.

So, the amendment fails.  Commissioner Burrows, do you have anything further to state with respect to what is now the main item pending before the Commission, which is the letter?

COMMISSIONER BURROWS:  I do.  I move to amend the Work Opportunity Tax Credit Opinion Letter to modify footnote 10 by removing certain language that is overbroad and unnecessary.

CHAIR DHILLON:  Is there a second to the motion? Hearing no second, the motion to amend fails.  Commissioner Burrows, do you have anything further?

COMMISSIONER BURROWS:  I move to amend the Work Opportunity Tax Credit Opinion Letter to strike and replace the identified sentence on page 6 in order to clearly explain that this Opinion Letter does not itself provide a defense to ADA claims.

CHAIR DHILLON:  Could you read the language into the record of what you're proposing be replaced in the letter?  So, read the new language into the record, if you would. Commissioner Burrows?

COMMISSIONER BURROWS:  My apologies.  I'm having difficulty with the mute.  So, that's the trickiness of that.

(Laughter.)

So, the amendment reads as follows: I move to amend the Work Opportunity Tax Credit Opinion Letter to insert a new footnote on page 6 after the sentence that reads, Title VII does not expressly prohibit pre-employment inquiries that disclose an applicant's race, color, or national origin.  The new footnote would state that, Title VII does, however, prohibit employers from making employment decisions with the intent to discriminate or that have a discriminatory impact based on applicant's race, color, national origin, sex, or religion.

This amendment would clarify in the letter that employers may not base ‑‑

CHAIR DHILLON:  Commissioner Burrows, Commissioner Burrows, you've stated your motion.  Now I'm going to ask for a second.  Is there a second to Commissioner Burrows' motion to amend?

COMMISSIONER LIPNIC:  Second.

CHAIR DHILLON:  All right.  Commissioner Burrows, would you like to speak in support of your motion? Commissioner Burrows?

COMMISSIONER BURROWS:  Yes.  Thank you very much, Madam Chair.  I would, in fact, like to say that this amendment is, again, intended to ensure that we do not sweep too broadly in the steps that we take here.  So that we can, in fact, do exactly what's intended to encourage the Work Opportunity Tax Credit and not otherwise sweep too broadly.

I should add that the tax credit expires at the end of this year, and it's unclear whether or not how often it will be used, given that the new CARES Act document or CARES Act employee retention credits can't be used at the same time, for the same employee, rather.  But, nonetheless, this is important.  However, we do need to limit it to exactly what we intend to do and not seek more.

CHAIR DHILLON:  Thank you Commissioner Burrows.  Commissioner Lipnic, do you have anything to add with respect to the motion to amend that is pending?

COMMISSIONER LIPNIC:  No, Madam Chair.

CHAIR DHILLON:  Thank you.  So, again, I will call for a roll call vote on the amendment to insert a new footnote on page 6.

Commissioner Burrows, how do you vote?

COMMISSIONER BURROWS:  Aye.

CHAIR DHILLON:  Commissioner Lipnic?

COMMISSIONER LIPNIC:  No.

CHAIR DHILLON:  And I vote no.

The motion to amend fails.

Commissioner Burrows, do you have anything further?

COMMISSIONER BURROWS:  Yes, Madam Chair, I have an additional amendment.

CHAIR DHILLON:  Commissioner Burrows, it's a little hard to hear you.  You've become a little faint. Commissioner Burrows?

COMMISSIONER BURROWS:  I have picked up my headset.  I hope that is helpful.

CHAIR DHILLON:  Yes, that's much better.  Thank you.

COMMISSIONER BURROWS:  Excellent.  Thank you.  All right.  So, I would like to move to amend the Work Opportunity Tax Credit letter to modify the final sentence of footnote 12 in order to clarify that the Commission's opinion may not be relied upon as a limited defense for reliability ‑‑ may only be relied upon as a limited defense for liability consistent with the statutory authority described in the letter.

CHAIR DHILLON:  Is there a second to Commissioner Burrows' motion to amend?

COMMISSIONER LIPNIC:  Second.

CHAIR DHILLON:  All right.  Commissioner Burrows, would you like to speak in favor of your motion to amend?

COMMISSIONER BURROWS:  I would, indeed.  I would like to state that it is vitally important, once again, that we not extend beyond the intentions of this purpose, of the purpose, rather, of this letter, and that we ensure that we do not have unintended consequences.  And this amendment would do so.

CHAIR DHILLON:  Thank you Commissioner Burrows.  Commissioner Lipnic, do you have anything to speak to with respect to Commissioner Burrows' motion to amend?

COMMISSIONER LIPNIC:  The only thing I would say is, while I certainly, again, am mindful of and appreciative of Commissioner Burrows' concerns about unintended consequences, I have to say I don't find this footnote proffered as an amendment particularly clarifying  to what is already in the letter, with all due respect to my colleague.

CHAIR DHILLON:  All right.  Commissioner Burrows, anything further, or can we move to a vote?

COMMISSIONER BURROWS:  Yes, Madam Chair, I do, in fact, have an additional amendment to ‑‑

CHAIR DHILLON:  Okay.  Well, why don't we, Commissioner Burrows, why don't we vote on the amendment that is currently pending before we move to your subsequent amendment?

COMMISSIONER BURROWS:  Thank you.

CHAIR DHILLON:  So, with respect to your current amendment to modify the final sentence in footnote 12, again, let's do a roll call vote.

Commissioner Burrows, how do you vote?

COMMISSIONER BURROWS:  Aye.

CHAIR DHILLON:  Commissioner Lipnic?

COMMISSIONER LIPNIC:  No.

CHAIR DHILLON:  And I will vote no.  So, the motion to amend fails.  Commissioner Burrows?

COMMISSIONER BURROWS:  Yes, thank you.

CHAIR DHILLON:  Do you have anything further?  Thank you.

COMMISSIONER BURROWS:  Yes, I do.  I would like to move to amend the letter pending before us, the main question, in order to modify the final sentence of footnote 12 to clarify this Commission's opinion may only be relied on as a limited defense to liability consistent with our statutory authority.

I think, actually, that one is duplicative.

CHAIR DHILLON:  I believe, Commissioner, that was the motion we just ‑‑

COMMISSIONER BURROWS:  Yes.  Okay.

CHAIR DHILLON:  Yes, that was the one we just voted on.

COMMISSIONER BURROWS:  I move to amend the Work Opportunity Tax credit Opinion Letter to strike and replace the identified sentence on page 6 in order to clearly explain that it does not itself provide defense to ADA claims.

CHAIR DHILLON:  So, could you please read the language that you propose replacing on page 6?

COMMISSIONER BURROWS:  Yes, I shall.  Hold on just a moment. All right.  I would add, the language that I would add would include the following clause, quote: “And therefore, this letter does not itself provide a defense to ADA claims.  And this would be added to page 6.  This has also been circulated to the Commission yesterday.

CHAIR DHILLON:  So that the record is clear, let me read what I believe that the sentence would read that you are proposing.  The complete sentence, as I understand it, would read, The ADA does not provide for Formal Commission Opinion Letters, and therefore, this letter does not itself provide a defense to ADA claims, although the ADA positions stated herein were approved by a vote of the Commission when they approved the letter as a whole.

Commissioner Burrows, is that the text of your proposed amendment?

COMMISSIONER BURROWS:  That's correct.  It just adds a short clause to what's already in the letter.

CHAIR DHILLON:  I would ask for unanimous consent in favor of Commissioner Burrows' proposed amendment.  Is there any objection?

COMMISSIONER LIPNIC:  No objection.

CHAIR DHILLON:  Any objection? The proposed amendment is adopted.

Commissioner Burrows, do you have anything further with respect to the Opinion Letter itself?

COMMISSIONER BURROWS:  The previous question being the Opinion Letter, I do have a procedural motion.  And, in particular, I would like to move that ‑‑

CHAIR DHILLON:  Could you get closer to your ‑‑ you're fading out again.

COMMISSIONER BURROWS:  How's this?  Can you hear me now?

CHAIR DHILLON:  That's better.  Thank you.

COMMISSIONER BURROWS:  Okay.

CHAIR DHILLON:  Yes.  Thank you.

COMMISSIONER BURROWS:  All right.  I'm going to stay on the hands-free.  I mean off the hands-free, rather.

So, with respect to the Opinion Letter being the main question, I would like to move that this Commission, as a procedural matter, postpone the pending question to a later date, so that we can comply with Trump Administration policy by issuing the letter for notice and comment.  As you know, Executive Order 13891 insists that we issue even sub-regulatory guidance ‑‑

CHAIR DHILLON:  Commissioner Burrows?

COMMISSIONER BURROWS:  Yes?

CHAIR DHILLON:  Commissioner Burrows, if you could state your motion initially, and then, if it is seconded, then you can speak in support of your motion.

COMMISSIONER BURROWS:  Thank you.

CHAIR DHILLON:  So, your motion is to postpone ‑‑

COMMISSIONER BURROWS:  My motion is to postpone the order, the pending question, so that we can comply with Trump Administration policy by issuing this proposed letter for notice and comment, so that the public can weigh in.

CHAIR DHILLON:  So, you are making a motion to postpone indefinitely?  Is there a ‑‑

COMMISSIONER BURROWS:  No, a motion to postpone to ‑‑ may I clarify before we go forward?

CHAIR DHILLON:  Yes.

COMMISSIONER BURROWS:  It's a motion to postpone to a time certain.  I would suggest that we should be able to do that either in one month or in whatever time period the Chair believes appropriate.

CHAIR DHILLON:  Is there a second to the motion? Hearing none, the motion failed.

Commissioner Burrows, do you have anything further to speak to with respect to the Opinion Letter?  We're back to the main matter that's pending before the Commission.

COMMISSIONER BURROWS:  Thank you Madam Chair.  With respect to the Opinion Letter, I believe that my portion of the debate is completed.

CHAIR DHILLON:  Thank you.

And I will waive my second round of comments or questions and move to a vote on the Opinion Letter itself.  And again, for purposes of clarity for the record, I will do this by roll call.

Commissioner Burrows, how do you vote?

COMMISSIONER BURROWS:  Nay.

CHAIR DHILLON:  Commissioner Lipnic?

COMMISSIONER LIPNIC:  Aye.

CHAIR DHILLON:  I will vote in favor.

Therefore, the motion passes, and the Opinion Letter as amended has been adopted.

At this point, I will declare a five-minute recess and we will resume at ‑‑ well, slightly more than five minutes ‑‑ we will resume at 2:15 Eastern Standard Time.  Thank you.

(Whereupon, the above-entitled matter went off the record at 2:07 p.m. and resumed at 2:15 p.m.)

CHAIR DHILLON:  Hello, and welcome back.  It's now 2:15.  I would like to resume the meeting of the Commission, the Equal Employment Opportunity Commission.

I want to check and ensure that we have Commissioner Lipnic still on the line.

COMMISSIONER LIPNIC:  I am here.

CHAIR DHILLON:  Commissioner Burrows? Commissioner Burrows, are you on the line?

OPERATOR:  It looks like Commissioner Burrows is not on the line at this time.

CHAIR DHILLON:  Thank you Operator.

Is Carol Miaskoff on the line?

MS. MIASKOFF:  I am on the line.

CHAIR DHILLON:  Thank you.

Operator, if you could advise us when Commissioner Burrows rejoins the call?  And then, we will resume.

OPERATOR:  Understood.

CHAIR DHILLON:  Thank you.  Operator, we are now resuming a meeting of the Equal Employment Opportunity Commission.

I'm going to move now to the second item on the agenda, which is the Rescission of Section 604 of the Compliance Manual on Theories of Discrimination.

Section 604 is a guidance document that staff in our Office of Legal Counsel has recommended for rescission.  The proposed rescission was circulated to our program offices for comment and no negative feedback or concern was expressed by the professional career staff.

I will now ask Carol Miaskoff, Associate Legal Counsel in our Office of Legal Counsel, to present to the Commissioners on this item.

MS. MIASKOFF:  Thank you, and good afternoon, Chair Dhillon, Commissioner Lipnic, and Commissioner Burrows.  My name is Carol Miaskoff, and I'm the Associate Legal Counsel in the Office of Legal Counsel.  I will address the proposal on today's agenda to rescind Section 604 of Volume II of the EEOC's Compliance Manual titled, Theories of Discrimination.

The Commission issued Section 604 on August 1st, 1988.  The purpose of this section was to provide a clear, basic description of disparate treatments and adverse impacts legal analysis, primarily under Title VII.  Section 604 only briefly refers to the Rehabilitation Act to distinguish undue hardship standards regarding what it calls handicapped discrimination from the Title VII undue hardship standard for religious accommodation.  Section 604 does not address the Age Discrimination in Employment Act or, obviously, the Americans with Disabilities Act, which itself was not enacted until 1990.

To frame Section 604 in the context of Title VII's legal development, it is particularly notable that the Commission issued this section nine months before the Supreme Court's decision in Price Waterhouse Cooper and within the year preceding the Supreme Court's disparate impact decision in Wards Cove.  Subsequently, both of these decisions, which both involved analysis of theories of discrimination, were legislatively overturned by Congress in the Civil Rights Act of 1991.  This Civil Rights Act itself then became the focus of significant federal litigation and case law, including precedential decisions from the Supreme Court which now mold how theories of discrimination as addressed in Section 604 are construed.

In sum, the utility of Section 604 as a basic guidance on theories of discrimination for attorneys and EEOC investigators is constrained because it is outdated.  Moreover, other more up-to-date resources are now available from the Commission for both its own staff and external stakeholders.

In the last 20 years, the Commission's approach to guidance has largely focused on single bases of discrimination.  For example, there is guidance on race discrimination, discrimination based on religion, on national origin, on pregnancy, and a guidance on retaliation.  And the focus in each of these is on how the theories of discrimination play out in these particular arenas.

As a practical matter, the Office of Legal Counsel finds that this approach to guidance is user-friendly for external stakeholders who typically inquire about the type of discrimination that has arisen in their own situation.  For internal staff, including investigators, contemporary EEOC training and training materials about theories of discrimination are readily available.

Thank you.  I look forward to answering your questions.

CHAIR DHILLON:  Thank you Ms. Miaskoff.

And I now offer the floor to Commissioner Lipnic for comments or questions.

COMMISSIONER LIPNIC:  Thank you Madam Chair.

I just want to say that I am certainly in support of making sure that we have good guidance, both for the public and also ‑‑ up-to-date for the public and also up-to-date information provided for our internal staff and for our investigators.  I know it's the case that our investigators, in particular, rely on the Compliance Manual a great deal.  So, I just want to make sure that, in rescinding this -‑ and you have indicated, Madam Chair, a willingness to make sure that, on a going-forward basis, that there's a comprehensive review of the Compliance Manual, and that we will make sure that those materials are updated, again, both for the public, but, in particular, for our own investigative staff.

CHAIR DHILLON:  Yes.  Yes, I agree.

COMMISSIONER LIPNIC:  That's all I have to say on this point.

Actually, I was remiss earlier.  I did want to make the point to thank the Office of Legal Counsel for all of their work in both preparing for the meeting today, but also in all the work that they have been doing over the past many months in undertaking a really good review of our materials that are in need of update or have seen better days and time has passed them by.  It certainly is the case here with this theories of discrimination.

With that, I yield back my time.

CHAIR DHILLON:  Thank you Commissioner Lipnic.  Commissioner Burrows?

COMMISSIONER BURROWS:  Thank you.  And I'd like to associate myself with the remarks and thinking of Commissioner Lipnic in thanking the Office of Legal Counsel and everyone who has worked so hard over these many months on these issues of the Compliance Manual.

I think that the area of disagreement may prove to be very narrow.  I think there seems to be agreement that we would update this.  My view is that we should not rescind it before the updates are ready because there is still some utility.  Historically, written guidance from this Commission has had a very important role in advancing civil rights in the workplace.

This year we mark our 55th anniversary, and we opened our doors just one year after the landmark '64 Act and have been doing this kind of thing in terms of leading guidance since then.  We were established in direct response to requests made by Dr. Martin Luther King, Jr., and other civil rights heroes in the historic '63 March on Washington for jobs and freedom more than half a century ago.  And since that time, we have steadfastly safeguarded the bedrock principle of equal opportunity in the workplace, applying the civil rights laws to safeguard and advance equal employment opportunity to each new challenge that has arisen over the years.

So, our written guidance is an important part of that legacy.  When Congress voted to establish this Agency, it did so by broad bipartisan majorities in both chambers, with Republicans and Democrats coming together in the belief that the issue of civil rights was so important to this nation that it must be above politics, and that equal employment opportunity in the workplace must be entrusted to a Commission whose members had a variety of backgrounds and political views and who, through reasoned deliberation, debate and cooperation, could move this country toward the important goals of equal employment opportunity.

So, this guidance represents that kind of cooperation.  And I think that what we should be doing is, in fact, updating it.  We have served this country well with guidances in the past, including this one.  In fact, guidance from this Commission has been helpful to courts over the years in myriad cases, including landmark decisions like Meritor Savings Bank v. Vinson, the unanimous 1986 Supreme Court case holding that sexual harassment claims can be brought under Title VII.

So, we shouldn't abdicate our role to update this guidance simply because there have been changes in the law.  Theories of discrimination guidance provides honest guidance on very serious discrimination arising under Title VII.  And for the vast majority, it remains good law and it's useful now to our employees and to others.

This guidance discusses disparate treatment, adverse impact, perpetuation of past discrimination, and accommodation.  It walks through the various proofs to discrimination, provides detailed analyses of similarly situated workers, statistical evidence, direct evidence, stereotypes, and how investigators might handle gathering evidence and investigating charges raised in these claims.  So, it's important because it tells the public our views on all Title VII theories in one overarching and comprehensive manner.

So, in sum, having a single section of a manual dedicated to theories of discrimination is both good sense and good governance.  If the idea is that it should be updated, I believe that that's what we should do.  But to leave nothing in its place in the meantime seems to me to be shortsighted.  So, accordingly, I move that we will update this guidance in lieu of rescission, and in the meantime leave it in place until we're ready.

CHAIR DHILLON:  Commissioner Burrows, could you articulate the form of that motion that you're making?

COMMISSIONER BURROWS:  The form of the motion is that I move that we update the guidance in lieu of rescission.

CHAIR DHILLON:  All right.  Is there a second to the motion? Hearing none, the motion fails.  Commissioner Burrows, do you have anything further?

COMMISSIONER BURROWS:  I do, but I can wait until the second round.  I'd like to hear the reasoning because, to me, it seems mysterious that we would get rid of it, given that if all we need to do is update, it seems that that's what we should do, but I'd like to hear the rest of the debate.  And I will reserve my remarks for round two.

CHAIR DHILLON:  Thank you Commissioner Burrows.

So, it is now my round.  The EEOC is committed to providing guidance and information to our stakeholders that is current, accurate, and clear.  EEOC Compliance Manual Section 604, Theories of Discrimination, I believe should be rescinded because it contains sections that are obsolete, refers to Commission decisions that generally are no longer used in guidance or litigation, and discusses concepts that are explained more comprehensively in recent guidance.

Outdated guidance causes confusion to stakeholders and EEO staff and may lead to poor employment decisions or weak investigations.  This guidance document was published in 1988, 32 years ago.  The law has evolved.  Among other things, this guidance was enacted prior to the 1990 enactment of the Americans with Disabilities Act, the Civil Rights Act of 1991, the Religious Freedom Restoration Act of 1993, and many court decisions on related issues.  Indeed, my rough count is that the Supreme Court has spoken to issues raised by this guidance at least 21 times since this guidance was issued.

Additionally, portions of this guidance are redundant with other guidance.  For example, Section 604.9 briefly explains how to handle religious accommodation claims, which are important matters that come to the Commission.  A more robust discussion exists in EEOC Compliance Manual Section 12 entitled, Religious Discrimination.  And other documents provide more detailed and current guidance, including, and not limited to, the Compliance Manual section on race discrimination and our enforcement guidance on pregnancy discrimination and related issues.

Rescinding this section will not, I believe, hinder EEOC's enforcement efforts, nor will it weaken federal anti-discrimination laws.  As Ms. Miaskoff pointed out in her remarks, updated information in these topics is found in other parts of the Commission's guidance.  And therefore, to ensure the EEOC's commitment to accurate and clear guidance, I support rescinding this document.

We'll now go to our second round, and I will call on Commissioner Lipnic to offer any additional comments or pose any additional questions.

COMMISSIONER LIPNIC:  No additional comments, Madam Chair.

CHAIR DHILLON:  Thank you Commissioner Lipnic.

Commissioner Burrows?

COMMISSIONER BURROWS:  Thank you Madam Chair.  Removing the theories of discrimination section from our Compliance Manual is I believe ‑‑

CHAIR DHILLON:  Commissioner Burrows, could you speak a little louder or get closer to your speaker?

COMMISSIONER BURROWS:  Sure.

CHAIR DHILLON:  That's better.  Thank you.

COMMISSIONER BURROWS:  I reiterate that removing the theories of discrimination section from the Compliance Manual is wholly unnecessary and deeply unwise.  If the issue is that there are portions that are outdated, we should eliminate those and leave it in place.  This manual provides important information about issues basic to nearly every investigation that EEOC conducts.  It's useful to our investigators who are not attorneys in conducting their jobs.  These investigators carry heavy caseloads and perform a critical service to the American public in helping to enforce basic laws for workplace fairness.  While investigators can consult the attorneys in the field or at the Office of Legal Counsel if they have questions, these attorneys have their own caseloads, schedules, court appointments, and legal deadlines, and may not always be available when needed.  Moreover, without the ability to consult basic written guidance on these issues, investigators may not identify an issue as something about which they need to consult an attorney in the first place.

The guidance is an especially important resource for smaller employers without extensive in-house counsel, and it's a hallmark of good government and basic fairness that we inform the public, including employers, of EEOC's basic theories of discrimination under Title VII.  It's unfair to ask that employers comply with federal employment laws without explaining how we expect them to do so.  Of course, employers may interpret the law differently than set out in our guidance, and, they are in no way bound by them.  Nonetheless, I have yet to meet an employer, especially a small business, that didn't want us to make clear the EEOC's legal interpretation.

So, if the idea is that this is outdated, let's take out the outdated parts, leave the parts that are good law, which is the vast majority of this document, rather than just abandoning it until a time uncertain.  If we eliminated our guidance every time the law changed, we’d have little guidance left.  The law is constantly evolving under Title VII and other statutes we enforce.  And as stewards of those laws, it's incumbent on us to update older guidances, if and when needed.  But revoking and offering nothing in its place in the meantime is not good practice.  The public, our own staff, and others look to EEOC for guidance and we need to provide it.

If the reason given to rescind this guidance had been that it covers topics that are discussed in other guidance, that wouldn't justify revoking it.  I will note that this is the only guidance of the 13 that have been rescinded thus far where no reason was stated.  It is news to me that this is possibly the reason, that it's outdated.  When this came in before the Commission informally for a vote in our electronic system, there was no reason given except to rescind.

EEOC investigators need to investigate charges that often involve other bases than Title VII and multiple claims under Title VII.  Private sector lawyers may often explore various claims on behalf of potential clients.  So, it's important to have all the theories of discrimination in one location.  It will slow down our investigators and the public by forcing them to sift through multiple other guidances rather than giving one comprehensive overview of the theories of discrimination.  It's inefficient and it certainly doesn't serve our stated priority of providing excellent customer service to the public.

Of course, guidance on specific topics is useful, but a one-stop document like this one on theories of discrimination for EEOC's employees and the public to explore how to apply Title VII, allowing them to identify areas to examine in greater detail, is extremely useful.  In fact, while some issues in the theories of discrimination guidance may also appear elsewhere, the existence of some overlap doesn't change the fact that it's also helpful to have this information in a single place.

So, I know that this guidance was placed on the agenda in January.  In the roughly three months since, we could have made headway toward updating.  And I certainly urge the Commission to reject the pending motion.  I would like to ask what the timeline is for the updates that were discussed, if, in fact, that is the ‑‑ as I understand, is the plan.

CHAIR DHILLON:  The work is underway, but I cannot give you a date certain.

COMMISSIONER BURROWS:  Do we have any sort of estimated timeframe?

CHAIR DHILLON:  No, not at this time.

COMMISSIONER BURROWS:  Okay.  Well, I urge again that the Commission reject the pending motion to rescind, and I move that we remove those outdated portions and leave the rest pending in lieu of rescission.

CHAIR DHILLON:  Well, I'm not sure I understand the form of your motion, but I'll inquire as to whether there's a second.

COMMISSIONER BURROWS:  I'm happy to rephrase if that's useful.

CHAIR DHILLON:  Hearing no second, the motion fails.  Do you have anything further, Commissioner Burrows?

COMMISSIONER BURROWS:  No.  I've concluded and would simply say that I believe the guidance in its current form is useful and that it should be retained until updated.  Thank you.

CHAIR DHILLON:  Thank you.  And again, for clarity of the record and for our simultaneous transcription, I will ask for a roll call vote.

What is pending before the Commission is the rescission of Section 604 of the Compliance Manual, Theories of Discrimination.

Commission Burrows, how do you vote?

COMMISSIONER BURROWS:  I vote nay.

CHAIR DHILLON:  Commissioner Lipnic?

COMMISSIONER LIPNIC:  I vote aye.

CHAIR DHILLON:  And I vote aye as well.

And so, the motion carries.

We'll move now to the final item on our agenda, which is the rescission of Compliance Manual 604, Appendix C, Polygraph Examinations.  Section 604, Appendix C, was recommended for rescission by staff in our Office of Legal Counsel.  The proposed rescission was circulated to our program offices for comment.  No negative feedback or concerns were expressed by professional career staff.

I will now turn the floor over to Carol Miaskoff again, Associate Legal Counsel in the Office of Legal Counsel.

Ms. Miaskoff, please proceed.

MS. MIASKOFF:  Thank you again for the opportunity to participate today.

I will now discuss the proposed rescission of Appendix C to Section 604, which is a December 1986 Commission Policy Statement titled, Polygraph Examinations.  Note that the Commission already has rescinded Appendices A and B to Section 604, which concerned criminal records.

The Policy Statement on polygraph examinations discusses how to analyze allegations of employment discrimination under Title VII that involve the use of polygraph examinations.  The use of polygraphs in employment selection does not appear to be a major issue now in 2020.  Moreover, the primary point of this guidance is that, “unless the particular respondent's use of an exam indicates evidence of disparate impact, such charges and complaints should generally be analyzed under disparate treatment theory.”  This point is a very fundamental point of analyzing discrimination and is not necessary for the Commission to announce in a separate guidance at this time.

Thank you.  I look forward to answering your questions.

CHAIR DHILLON:  Thank you Ms. Miaskoff.

I now offer the floor to Commissioner Lipnic for any comments or questions.

COMMISSIONER LIPNIC:  Thank you Madam Chair.  I do have a question for Ms. Miaskoff.

Do you know if we've had any recent ‑‑ and by recent, I'll say over the last decade ‑‑ inquiries regarding the use of polygraph exams that have come into the Commission, specifically to OLC to opine on?

MS. MIASKOFF:  Yes, thank you Commissioner Lipnic.  I think in the last 10 years we may have had a very few informal inquiries.  We have had no inquiries from internal investigators or attorneys who are looking at matters that involve polygraphs come through OLC at all during that 10 years.

COMMISSIONER LIPNIC:  And also, when this was also circulated through the internal review,

MS. MIASKOFF: Un hmm,

COMMISSIONER LIPNIC: Any response from the Office of Field Programs in terms of concerns about rescinding it?

MS. MIASKOFF:  No concerns about rescinding it were articulated.

COMMISSIONER LIPNIC:  Okay.  I have no other questions.  Thank you Madam Chair.  I yield back.

CHAIR DHILLON:  Thank you Commissioner Lipnic.  Commissioner Burrows?

COMMISSIONER BURROWS:  Thank you Madam Chair. I believe that the fact that this may not arise frequently is actually a reason why, when it does, it's important to have guidance.  It may be something that is very rare for people to use, and therefore, when it comes up, you need somewhere to turn.

I think it's important, as I stated earlier with respect to the previous question, that we have transparency to the public about the work of our Agency.  I don't believe in hiding the ball from employers, unions, employees, and anyone else about how this Agency views the laws we enforce.  Accordingly, the guidance should be retained, and I urge the Commission to reject the motion to rescind it.

I would be interested to hear from my colleagues the reason for the pressing need to eliminate this part of our Compliance Manual and, also, from the Office of Legal Counsel, how you see that question.  And I would be interested in hearing that at this point.

CHAIR DHILLON:  So, to be clear, Commissioner Burrows, you're posing a question to the Office of Legal Counsel?

COMMISSIONER BURROWS:  Yes.  My question to the Office of Legal Counsel, and also to the other members, to the extent that there's an interest in weighing in, is, What's the harm of keeping this and why is it important to remove it?

MS. MIASKOFF:  Commissioner Burrows, this is Carol Miaskoff speaking.

I guess I’d raise two points.  First of all, this appendix and this guidance is very short.  And all it basically says is that, if there's no evidence of disparate impact, you use disparate treatment.  And that is a fundamental concept that certainly our internal people would understand and are trained on and have materials on.  And I think, externally, to lawyers and other people who are active in this field, would seem self-evident.  So, that's the legal side.  I don't see much value added here in terms of legal analysis.

In terms of the subject matter, when I asked around about experience in this area to my colleagues in the Office of Legal Counsel, what came back was either an answer that, no, no one had ever gotten anything on it, but what did come back in the affirmative‑‑ was often, in several instances, well, I got an inquiry about background checks and I think they mentioned polygraph in that context, but, really, the overall inquiry was about background checks and screening.  So, when it does arise, it's sometimes sort of a subpart of another issue.

So, that's what I have to add.

COMMISSIONER BURROWS:  All right.  And the other question I have is with respect to this project of updating, because the issue of background checks in employment obviously comes up quite a bit.  Is this an area where you're intending to revise it?  And how does this, regardless of the answer, how does this fit into the broader project that I understand is underway in OLC of going through the Compliance Manual?

CHAIR DHILLON:  I guess ‑‑ this is the Chair ‑‑ I do want to be careful about Sunshine Act requirements here.  The topic that you're describing is not something that we included in our public notice.  And so, I don't feel comfortable fully responding on this call to that.  Of course, I would be happy to discuss that with you one on one.

COMMISSIONER BURROWS:  With respect to this guidance, is this part of a broader plan to deal with the Compliance Manual or is that not the case, that this is sort of its own on all fours?  Or is that something that would have to be discussed separately?

CHAIR DHILLON:  Well, I'm happy to offer, when it comes to my round, I'm happy to offer my views on why I believe the guidance should be rescinded, if that's responsive to your question.

COMMISSIONER BURROWS:  All right.  I'm happy to yield.

CHAIR DHILLON:  Thank you.

I support the rescission of Appendix C to Section 604.  This particular provision is  to a narrow fact pattern that rarely arises.  Additionally, as the Office of Legal Counsel has pointed out, this guidance is of limited utility to stakeholders because its primary point is that complaints should generally be analyzed under a disparate treatment theory, unless the respondent's use of an exam indicates disparate impact.  Accordingly, I believe that it is appropriate to rescind Appendix C to Section 604, and I support that rescission.  With that, we'll go to our second round.

Commissioner Lipnic, do you have anything further to add?

COMMISSIONER LIPNIC:  Nothing further.

CHAIR DHILLON:  And Commissioner Burrows? Commissioner Burrows, do you have anything further to add ‑‑

COMMISSIONER BURROWS:  Yes, thank you.

CHAIR DHILLON:  ‑‑ on the matter?

COMMISSIONER BURROWS:  Thank you.

I respect the views presented here, and it's been enlightening for me.  On balance, I think the difference of opinion really comes down to is it better to have something or nothing as we go through whatever process we have of updating the Compliance Manual.  And for that reason, I think it would be prudent to retain this or perhaps to update it to deal with the issues that do arise more frequently with respect to background checks.

As I said earlier, our role in issuing guidance on the laws we enforce has really helped move the country forward by illuminating the law for laypersons and experts alike.  And it's been relied on as a helpful resource in numerous court decisions.  So, we shouldn't simply abandon guidance if there's no good reason to do so.  On that basis, I, unfortunately, while I appreciate the positions raised here today, I think on balance I will oppose this motion, and I would urge my colleagues to do the same.

CHAIR DHILLON:  Thank you Commissioner Burrows.

We'll now move to a vote on the motion to rescind Appendix C to Section 604 of the Compliance Manual, and again by roll call.

Commissioner Burrows, how do you vote?

COMMISSIONER BURROWS:  Nay.

CHAIR DHILLON:  Commissioner Lipnic?

COMMISSIONER LIPNIC:  Aye.

CHAIR DHILLON:  And I vote aye as well.

So, the motion to rescind passes. With that, we have concluded the items that were laid out in the agenda.

I would like to again thank the Office of Legal Counsel and to thank Commissioner Lipnic and Commissioner Burrows for your remarks, thoughtful comments and careful preparation for this first virtual meeting of the Commission.  I also would like to thank the members of the public who were able to join us today.  And with that, our meeting is adjourned.

(Whereupon, the above-entitled matter went off the record at 2:49 p.m.)