H.R. 5423 — Introduced in House

I 113th CONGRESS 2d Session H. R. 5423 IN THE HOUSE OF REPRESENTATIVES September 9, 2014 Mr. Walberg (for himself, Mr. Rokita, and Mr. Hudson) introduced the following bill; which was referred to the Committee on Education and the Workforce A BILL To amend title VII of the Civil Rights Act of 1964 to exclude the application of such title to employment practices that are in compliance with Federal regulations, and State laws, in certain areas. 1. Short title This Act may be cited as the Certainty in Enforcement Act of 2014. 2. Findings The Congress finds the following: (1) The Equal Employment Opportunity Commission (EEOC) has, since 1965, been responsible for enforcing Federal laws against employment discrimination, but there are growing concerns about the enforcement and policy approach adopted by the EEOC, raising questions about whether the best interests of workers and employers are being served. (2) The EEOC may promulgate guidance under the Civil Rights Act of 1964, but that guidance does not have the force of law, and in some cases has been rejected by the courts. (3) In 2012, the EEOC promulgated enforcement guidance regarding the use of criminal background checks that put employers in the position of acting contrary to Federal, State, and local laws that require employers to conduct criminal background checks for certain positions, such as public safety officers, teachers, and daycare providers. (4) In EEOC v. Peoplemark, Inc., a case challenging Peoplemark’s use of criminal background checks in making employment decisions, the Court of Appeals for the Sixth Circuit in October 2013 affirmed an award of $751,942 against the EEOC for prevailing defendant Peoplemark’s attorney’s and expert fees. (5) In EEOC v. Kaplan Higher Education Corporation, a case challenging Kaplan’s use of credit reports in the hiring process, the Court of Appeals for the Sixth Circuit affirmed the district court’s decision granting summary judgment in favor of Kaplan and stated that the EEOC brought a case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself. 3. Amendment Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) is amended by adding at the end the following: (o) Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer, labor organization, or employment agency, or for a joint labor management committee controlling apprenticeships or other training or retraining opportunities, to engage in an employment practice that is required by Federal, State, or local law, in an area such as, but not limited to, health care, childcare, in-home services, policing, security, education, finance, employee benefits, and fiduciary duties. .