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Public Comments Submitted
in Response to Request for
Public Input on
EEOC’s Preliminary Plan for Retrospective Review

May 2011

From: Gerry Scott
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/8/2011 4:03 PM
Subject: recommendation is regarding the lack of clear language regarding reasonable accommodation.

My recommendation is regarding the lack of clear language regarding reasonable accommodation. It is too vague, and because of this vague language it creates many issues both for the employer and employees. If the employer seeks to treat an employee unfairly it is foreseeable. The employees seeking to acquire the accommodation meet with many hills and mountain and loop holes. I know it can be difficult to be very specific but specific we must be. We spend too much TIME, MONEY and EFFORT trying to correct a wrong or the wronged because of this very enormous problem. When you are a person with a disability or in need of any accommodation it is an overwhelming already. Then you encounter people who are not very understanding, or lacking the education or expertise to appreciate what it take to accomplish this task. It may not be seen at the TOP levels of employment but believe me when I tell is defiantly at the lower level. I think you should involved all level in the forum when recommendation for CHANGE in NEEDED. I will be more than willing to join this forum. We need it. I'm not say it has not been done, but what I'm saying there need to be more done to assist people who are trying to do the right thing .

Thank You

Gerry Scott


From: David Steppe
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/8/2011 8:21 PM

I really wish the EEOC reconsider my appeal due to timeliness the Agency in which I filed my case with is failing on there decision of employment Discrimination for retaliation. As a 100 percent Disable Veteran I feel the EEOC was wrong on dismissing my case.

David Steppe Ref#0120101298


From: Michael A. McDaniel
To: public.comments.regulatoryreview@EEOC.GOV
Date: 3/9/2011 7:09 p.m.

A modified version of the attached paper will appear in Industrial and Organizational Psychology: Perspectives on Science and Practic.

Michael A. McDaniel, Ph.D.
Professor - Human Resources and
Organizational Behavior
Department of Management, Research Professor, Department of Psychology
Virginia Commonwealth University
301 West Main Street, , PO Box 844000
Richmond, VA 23284-4000


From: Carolina Guinand-Dao daogui@mac.com
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/12/2011 3:24 AM


 

From: mlane
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/14/2011 2:50 PM
Subject: EEOC Federal Sector Injustice: Time for Change

1. Repeal 21 USC 1614.

2. Remove all administrative judges who have failed to rule in favor of a federal employee at least twice in the past two years.

3. Remove the Chair and all current commissioners. The words "federal sector" have not passed their lips since their "recess" appointments.

4. Examine closely the changes currently being implemented by the MSPB, who are actually moving toward open communications with those whom they have been put in place to serve. The federal sector EEOC needs to get its collective self out of those cozy beds with federal agencies and federal agency attorneys. The EEOC was put in place to stop employment discrimination, rather than to make life pleasant for agencies and their agents.

5. Realize, first and foremost, that when only 2% or less of federal employees prevail in their claims of discrimination against federal agencies, something is radically wrong with this system, particularly as these cases are ALL heard by EEOC administrative judges. This stands in sharp contrast to private sector cases, where private sector employees prevail in 33% of their claims of discrimination, heard by well.qualified Article III Judges.

6. Acknowledge that the EEOC has, for far too long done a stunning disservice to federal employees seeking redress for the same types of discrimination seen in the private sector, for behavior which is not tolerated in the private sector, but which is a notorious constant for certain federal agencies, because the EEOC allows this to be so.

7. Compare the outcomes of cases with the same fact patterns in the federal sector system and the private sector systems. Acknowledge, openly and honestly, for the first time in the EEOC's 40 year history, that the EEOC has miserably failed the federal sector employee, and acknowledge, finally, that federal sector justice and private sector justice must be meted out under the same system to insure that both sets of workers finally are able to perform their jobs free from discrimination.

8. Instead of reporting ONLY private sector "wins" on your web site, be honest and report federal sector losses, openly and honestly, so that those members of Congress who are literate can finally make direct comparisons between private sector justice and federal sector "justice."

9. If, however, the EEOC, its agents and servants, actually believe that federal workers are NOT entitled to a "fair and level playing field and a substantial sense of JUSTICE," say so! Disband the Kangaroo Court presided over by GS.14 General Attorneys, save the US 60 million dollars and allow those employees to take their cases to REAL courts presided over by REAL judges, committed to providing justice and equality for ALL.

In the present system, the federal sector employee comes before the EEOC as a second class citizen with the outcome of his/her case preordained for failure. This is simply WRONG! And, what is pattently obvious is that the majority of those employed by the federal sector EEO, or charged with oversight of the same, openly acknowledge that they are there to serve the Agencies, not the victims of Agency discrimination. (Look at the way HECAPS was put forward, for example). No claimant's attorney was EVER solicited for comment; no web site instruction for claimants' counsel was ever offered. The EEO and the Agencies, solely, to the complete and total exclusion of those whom they are mandated to serve, moved forward, because it was convenient FOR THEM!!!!!!

True equality, within the EEOC system, for the federal worker, has not existed for forty (40) years and it is time for change. THE EEOC WAS NOT ORIGINALLY CONCEIVED TO FOSTER DISCRIMINATION AGAINST THE FEDERAL EMPLOYEE, BUT, FROM ITS INCEPTION, IT HAS DONE SO, PERPETUATING A WRONG AND AN EVIL WHICH NOW MUST BE OPENLY AND HONESTLY ADDRESSED.


From: mlane
To: public.comments.regulatoryreview@eeoc.gov
Date: 3/15/2011 9:31 AM
Subject: Correcting federal sector EEO Injustices

1.  Repeal or extensively revise 21 USC 1614 to afford federal employees the same rights as private sector employees.

2.  Disclose the process for selection, training, review and discipline of EEO administrative judges.

3.  Publcize the process for filing complaints against EEO administrative judges.

4.  Recognize the wrongs and injustices in the entire federal sector EEOC process and open a dialog with all parties concerned, not merely the agencies, to address these ills and wrongs.

5.  Recognize that under the same laws and statutes, federal employees prevail in less than 2% of hearings before EEO judges, while private sector employees prevail in 30-40% of their claims heard by Title III judges.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/15/2011 9:35 AM
Subject: Federal Sector Injustice

The EEOC has fostered 40 years of discrimination against the federal sector employee by allowing bias and prejudice against the federal employee seeking redress for discrimination against him/her by his/her federal employer.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/15/2011 9:38 AM
Subject: Federal Sector Injustice

The entire process by which HECAPS was implemented was fatally flawed, as it allowed dialog only between the EEO and the agencies, but solicited no response from the federal employees and their counsel, offered no training or instruction, and typified the EEO's pandering to agencies, rather than the employees Congress mandated it to serve.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/15/2011 9:42 AM

Because of bias and prejudice of EEO agents and servants in the federal sector hearing and appellate process, the federal sector employee has been raped and excluded from justice for the past 40 years. The federal sector employee has been treated as a "second class citizen" as compared to the private sector employee, in bringing claims of discrimination before the EEOC.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov Date: 3/15/2011 9:46 AM
Subject: EEOC Federal Sector Injustice

While agencies and their counsel have open communication with federal sector employees and judges, federal sector employees are limited to a single phone line, rarely answered, and from which phone calls are rarely or never returned, doing injustice to those the EEOC is mandated to serve.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/15/2011 9:49 AM
Subject: Federal Sector Injustice

Federal Sector EEOC administrative judges exhibit a strong agency bias which is reflected in the fact that only 2% of federal sector employees prevail at hearing. Further, only 3-4% of federal sector employee-appellants prevail in appeals to the OFO.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/15/2011 9:52 AM
Subject: Federal sector Injustice

Neither the chair nor the newly appointed commissioners have addressed, in any way, since their appointment, the enequity which exists between treatment of federal sector employees and their private sector counterparts. The Commission has turned its back on the federl employee, thereby fostering and supporting federal sector injustice.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/15/2011 11:13 AM
Subject: Federal Sector Change

Federal Sector EEOC Reform was last addressed in 2002, and the laws that govern federal sector EEO have been ignored since the, but are required to be reviewed every ten (10) years, yet the Commission has ignored the Federal sector.

Only 2% of federal sector employees prevail at hearings before EEO administrative judges and some EEO AJ's presently sitting have NEVER found in favor of a federal employee, over an agency. This creates a strong inference of both bias and collusion.

Soliciting comments from those who have appeared before such judges,should be carried out and terminations used where necessary to end unfair process and judicial bias.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/15/2011 11:17 AM
Subject: Short notice for public comment

The EEOC only published its call for public comment on 3/8 and comment closes 3/22. This if far too short to allow adequate notice to all who wish to offer comment on federal sector inequities.

The federal sector employee stands as a second class citizen before the EEOC and this injustice needs to be addressed, either by revising or repealing Sec. 1614.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/15/2011 12:43 PM
Subject: Federal sector injustice

The HECAPS project is exemplary of federal sector EEO contempt for claimants and their counsel. No input was solicited from either. Counsel were simply ordered to comply, while agency counterparts had the HECAPS systems set up for them with taxpayer money. The EEO offered no instruction or guidance for private attorneys, why bother, after all, their good friends at the agency were all set! Agencies are the defendants in these cases.

The sense one gets is that EEO AJ's would prefer hearings attended by themselves and the agency, only, to avoid the tiresome input from plaintiffs, the federal employees who were the victims of discrimination by the agency.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/15/2011 1:04 PM
Subject: federal sector injustice

Why should a private sector employee have 180 days to file a complaint while a federal sector employee has only 45 days? This creates injustice and makes second class citizens of federal employees seeking redress for discrimination, which is unjust.


From: Theresa Ellis
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/15/2011 2:04 PM
Subject: EEOCs initial list of regulation review

Reviews should include:

1. How to incorporate or assess the private "right to sue" Federal/State Civil Suit rulings by decision, court costs and remedies. This is very much needed to address interpretation of regulatory law or evidence and/or needs for Congressional regulatory clarification of law.

2. Define how regulations are integrated or redundant (especially with Title VII); to clarify and/or correct the EEOC or State complaint filing system

3. Define Relationship / Integration process of Federal to State Civil Rights complaints; since both agencies tend to share investigation results. 

Respectfully submitted by:
Theresa Ellis


From: Jeff
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/16/2011 8:48 PM
Subject: One suggestion

I would like to suggest that something needs to be done about the negative impact a criminal record has on someone getting a job. I can understand if something is recent (in the past few years) or has a very direct relation to the job. I have a few felonies on my record, none too serious, and all are over 10 years old. Only about 8.10 states have limits on how far background checks can go. I live in NC and it's like 90% of the job postings say "must pass background check", or "no felonies". People get calls for interviews and when asked if they answer honestly, they never get a call back or a chance at the job. Most of the time if you honestly check yes on the application then more than likely the application gets thrown in the trash.

Before 1998 part of the FCRA limited this to 7 years. Maybe try to persuade Congress to once again include this in the FCRA. Unless the job really calls for a long term check (FBI agent, work with elderly people or kids, or in a bank) Maybe even limit the employer's risk in negligent hiring lawsuits if they do give a person with an old criminal conviction a chance at employment. I just think something needs to be done, because when people are trying to better themselves, and have been conviction free for 7, 10 or more years then they are really trying to do what's right. If people cannot obtain decent jobs then their chances at success are severely limited.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/17/2011 9:28 AM
Subject: Federal Sector Injustice

Transparency in Government requires that the EEOC disclose that, in the federal sector, until their Record of Investigation is completed, and a hearing is requested, federal employees' cases remain in the hands of the agencies against whose wrongs they are seeking redress.

Further, it needs to be disclosed that the EEOC judge who will hear their case, is a GS-14 General Attorney, without the same background or training as a Federal District Court Judge. Unless this information is fully, fairly and openly disclosed at the outset of a case, the federal employee cannot make an informed decision as to whether to bring his/her case to Federal Court after 180 days.

Further, when a federal employee choses to exercise this right, the EEOC should issue a "Right to Sue" letter, to foreclose federal courts from dismissing for failure to exhaust administrative remedies.

JUSTICE DELAYED IS JUSTICE FORECLOSED.


From: "Ronald P. Davis"
To: public.comments.regulatoryreview@eeoc.gov
Date: 3/18/2011 2:45 PM
Subject: EEOC Policies and Procedures for Accepting Charges of Discrimination

Regulation Needing Modification: EEOC Administrative Guidelines and Procedures

Reason for Modification:

Over the past decade, the EEOC has begun to lose focus of its original charter and purpose and has become, unfortunately, a quasi “Complaint Department” for disgruntle employees. Record levels of charges are being filed each year, many of which have little to zero basis in the laws or regulations for which the EEOC has oversight authority. As a result, the nation has been burdened with a bureaucratic cancer that it slowly and steadily eating away at the ability of employers and the EEOC to allocate the resources necessary to achieve their respective missions. Rather than strengthening our nation, as originally intended, current administrative policies and procedures require EEOC personnel to spend tens of thousands of hours per year in each of its offices processing complaints that are not at all related to illegal discriminatory practices. Seemingly, any disagreement between two or more parties is fair game for an EEOC Charge and the corresponding investigations and responses. That requires manpower and resources that all parties could better used to advance their performance towards achievement of their respective missions.

The current administrative policies and procedures, evidently do not allow EEOC personnel to establish a minimum threshold of factual information before accepting a charge and beginning the laborious process of investigation and response. Too often, employers receive charges that offer no grounds to substantiate the allegation other than the claimants’ belief they have been discriminated against. Often there is no statement as to why the claimant believes they were discriminated against. Too often the employee has never initiated any steps with his or her employer to redress the issue before filing their charge even when there are employer.provided grievance or EEO complaint processes readily available to them. Even after exhaustive investigations and documentation that disprove the allegation, the claimant gets a Right to Sue letter which they interpret as affirmation of their charge, even though the letter does not make such a statement. Claimants then proceed to shop for an attorney willing to accept their case, further costing employers and claimant time and resources that could be better utilized to improve the country’s productivity and competitiveness. This broken process neither advances the cause of fairness and equality in the workplace nor does it optimize the use of the limited dollars and human resources available to the EEOC.

The current EEOC Mediation Process, on the other hand, is an outstanding example of EEOC policies and procedures geared toward an expedient and equitable resolution to charges. The EEOC Mediators are well versed on the laws and regulations and work to resolve disputes without creating mountains of documents and involving years of litigation. When the employer is on the wrong side of the law, they make that fact very clear to the employer and works with all parties to find reasonable and workable remedies. When the claimant has no basis for a charge of illegal discrimination, they work very effectively and empathetically to help the claimant understand what is and is not a viable EEOC charge under the law. The mediators I have worked with are objective and very skilled at listening to all parties and analyzing all of the facts and circumstances, and moving the parties to a resolution of the issues. In most cases, the charges stem from poor communications, misinformation or genuine personal conflicts between employees for reasons other than those which are illegal under the various laws and regulations enforced by the EEOC. This process works! This process is efficient! This process is in perfect alignment with the charter and mission of the EEOC and it serves the citizens of our country well. It is as fair as is practical even though it does not always succeed. Sometimes the parties just will not budge from their positions, regardless to the facts and circumstances, but those are a minority of the cases mediated.

There is real illegal discrimination that takes place across our country and those cases should be fully addressed by the EEOC. However, because of the enormous number of calls, visits and charges handled by the EEOC, it is unable to effectively place adequate resources investigating and resolving but a small fraction of these real cases. The EEOC needs a better charge assessment process that empowers its personnel to expend the time upfront to determine if there is real evidence to support the allegations being made. Local EEOC offices should be able to dismiss charges that do not meet a reasonable justification threshold.

More and more charges being filed each year is not necessarily evidence of more illegal discrimination taking place or a better informed public on the anti.discrimination laws and regulations. Rather, I submit, it could very well be symptomatic of the broken processes described above. More and more people are filing charges because it is easy to do and they do not have to substantiate their allegation. Filing a charge is a means to “get back” at the employer and a way to “hurt” a manager or supervisor.

The courts require claimants to file first with the EEOC so its (the courts’) processes are not choked by cases without merit or that should be settled outside of the legal process. Because of a dysfunctional charge assessment process, EEOC and Employer Processes are becoming choked while the real campaigns for equality and improving American economic competiveness are suffering as a result. “More” is not always “better.”

If the EEOC’s current administrative policies and procedures were truly effective logic would dictate that the incidents of real discrimination charges should be declining after decades of enforcement and employer training. For the very opposite to be occurring should be an unmistakable indictment of the current policies and procedures.

Having worked in the business community since 1971, I have witnessed the enormous progress made the in areas of equality and fairness. I have been a witness to real discrimination and a time when only certain jobs were available to various classes of people. Today, although all is not perfect, so much of the blatant discrimination has been eliminated and most Americans can strive to truly reach their full potential in their fields of employment. Some employees use their inclusion in one or more of the protected classes as a crutch or as an excuse for their own shortcomings or failures in life. Their misuse of the EEOC Charge Process serves only to distract the EEOC and Employers from the real work that is still needed protect and promote the rights of all our citizens in the workplace.

I encourage the EEOC to revise the regulations that govern how it handles and processes alleged charges so that it can more effectively achieve it intended public purpose without excessive federal spending and without crippling employers striving to provide quality products and services in a highly competitive and volatile global economy.

“MORE” is not always “Better.”

Submitted by:

Date: March 18, 2011

Ronald P. Davis, MBA


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/19/2011 1:57 PM
Subject: Federal Sector injustice.

21 USC 1614 makes second class citizens of federal employees. Why should federal employees have only 45 days to file a complaint, while their private sector counterparts have 180 days? This is unjust and unequal, and should be changed.


From: mlane
To: EEOC public.comments.regulatoryreview@eeoc.gov
Date: 3/20/2011 1:16 PM
Subject: Federal Sector Injustice

The EEOC posts its public sector wins up front on its web site, on a weekly basis.

The EEOC should be posting the numbef or wins/losses by employees whose cases are heard by EEOC AJ's, weekly, for federal employees, in each area of discrimination addressed by the Federal Sector EEOC. It is important for Our President, Congress and Federal employees,to be aware of the stunningly low frequency of wins by federal employees, in the same way that they are able to judge the EEO's private sector "wins."

Unequal reporting of federal and private sector case outcomes constitutes an injustice to the federal employee, when EEOC AJ's find against federal employees in 98% of cases. The public has a right to know that the federal worker consistently fails to find justice through the EEOC process and that there is every appearance of bias and prejudice by the EEO's own administrative judges, in favor of federal agencies.


From: "Dave Nershi"
To: public.Comments.RegulatoryReview@eeoc.gov
Date: 3/21/2011 1:07 PM
Subject: Comment on Plan for Retrospective Analysis
Attachments: SIOP UGESP Response.doc

Attached please find the Society for Industrial and Organizational Psychology's response to the Equal Employment Opportunity Commission's ("EEOC") request for public comment on the plan for retrospective analysis of significant regulations. This is submitted on behalf of Society President Dr. Eduardo Salas.

Please let me know if you have any questions.
Regards,
Dave

David A. Nershi, CAE

Executive Director, http://www.siop.org Society for Industrial and Organizational Psychology

440 E. Poe Road, Suite 101, Bowling Green, OH 43402


From: Tosh Anderson
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/21/2011 2:11 PM
Subject: Comment to EEOC Regarding its Request for Public Comment

Comment to EEOC Regarding its Request for Public Comment on its Plan to Review its Significant Regulations Pursuant to Executive Order (EO) 13563, Improving Regulation and Regulatory Review, 76 Fed. Reg. 3821 (Jan. 21, 2011)

March 18, 2011

Prepared by Gladstein, Reif & Meginniss, LLP

In pursuit of the EEOC efforts to better achieve its regulations’ objectives, this comment is respectfully submitted to the Agency so that it may clarify its regulatory language regarding what constitutes a prohibited medical inquiry pursuant to 42 U.S.C. §12112(d)(4)(A) in light of the recent ruling in the Sixth Circuit. See Lee v. City of Columbus, Ohio, 2011 WL 611904 (C.A.6 (Ohio)), No. 09.3899. 6th Cir. Feb. 23, 2011.

The Americans with Disabilities Act (ADA) provides that employers “shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job. related and consistent with business necessity.” 42 U.S.C. § 12112(d) (4)(A) The ADA does permit an employer to inquire as to the ability of the employee to perform his or her job.related functions upon returning to work. 42 U.S.C. § 12112(d)(4)(B) The EEOC defines a “disability.related inquiry” as “a question (or series of questions) that is likely to elicit information about a disability”.[1] EEOC Notice, 915.002. 7/27/00. EEOC Enforcement Guidance on Disability. Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)Guided by the EEOC’s interpretation of protected disability.related inquiries, the Second Circuit found that an employer’s request for a general diagnosis upon the employee’s return to work constituted a prohibited medical inquiry since it “may tend to reveal ” a disability in violation of § 12112(d) (4)(A). Conroy v. New York State Dept. of Correctional Services, 333 F.3d 88, 95 (2nd Cir. 2003) General diagnoses, as the Conroy court explains, can subject employees to employer stereotypes or give the perception of a disability which can lead to discrimination based on a perceived disability, itself a violation of the ADA. Id. at 96. In Conroy, an employee with asthma and pulmonary obstructive disease who had in the past requested a reasonable accommodation challenged a sick leave policy mandating that employees provide a general diagnosis “sufficiently informative as to allow [the employer] to make a determination concerning the employee's entitlement to leave or to evaluate the need to have an employee examined by [employer’s doctor Health Service] prior to returning to duty”. Id. at 92. The Second Circuit found the general diagnosis directive a disability.related inquiry subject to the restrictions of 42 U.S.C. § 12112(d)(4)(A) and that it was prohibited under the ADA.

An inquiry that may tend to reveal a disability or the nature or severity of the disability may be allowed if the employer can demonstrate the inquiry is job.related or there is a business necessity for such an inquiry. For a disability.related inquiry to avoid prohibition under 42 U.S.C. § 12112(d)(4)(A) and rise to the level of a business necessity, the employer must show the inquiry is more than mere expediency, but necessary in order to determine, for example,

1) whether the employee can perform job.related duties when the employer can identify legitimate, non.discriminatory reasons to doubt the employee's

capacity to perform his or her duties (such as frequent absences or a known

disability that had previously affected the employee's work) or 2) whether an

employee's absence or request for an absence is due to legitimate medical

reasons, when the employer has reason to suspect abuse of an attendance policy.

Id. at 98.

The Second Circuit in Conroy held that inquiries of individual employees as well as generally applicable policies to a class of employees must receive the same scrutiny as to whether the inquiry is consistent with business necessity. The Court was concerned that an employer, by adopting a generally applicable policy of inquiry, may try to escape scrutiny as to whether that policy is consistent with business necessity. However, a recent decision in the 6th Circuit applying § 12112(d)(4)(A) to the Rehabilitation Act appears to support that very proposition – that generalized inquiries cannot be prohibited inquiries since they apply to both disabled and non. disabled employees. Lee v. City of Columbus, Ohio, 2011 WL 611904 (C.A. 6 (Ohio)), No. 09.3899. 6th Cir. Feb. 23, 2011. This decision should be distinguished from the line of ADA cases interpreting § 12112(d)(4) (A) prohibited medical inquiries.

The EEOC should clarify its position on the scope and interpretation of § 12112(d)(4)(A) prohibited inquiries so as to provide guidance to the courts and avoid a split in the circuit courts.

In the Lee case, all employees of the Division of Police of the City of Columbus, pursuant to Directive 3.07 § III(H)(1)(c) (“the Directive”), were required upon returning to regular duty to provide physician’s note to their immediate supervisor detailing the nature of the illness if they had used more than three days of sick leave or more than two days due to an illness of an immediate family member for which the employee was required to care. The Directive also required the same note detailing the nature of the illness if so mandated by a commanding officer.

In applying § 12112(d)(4)(A) of the ADA to the Rehabilitation Act (“the Act”), the Sixth Circuit attached an intent requirement since the Act, unlike the ADA, requires proof that an employer is discriminating solely on the basis of disability. Therefore, whether an inquiry was a prohibited inquiry depended upon whether the inquiry “intended to reveal or necessitates revealing a disability, rather than whether the inquiry may merely tend to reveal a disability.” Id. at 8. Once the Sixth Circuit had attached an intent requirement to its interpretation of § 12112(d)(4)(A) prohibited medical inquiries, it was foreseeable that it would find no violation for generalized and uniform inquiries since a general policy is applied to both disabled and non.disabled employees. However, the Lee court failed to understand that a generally applicable policy – though it is applied to disabled and non.disabled alike .. can still negatively impact disabled employees. This lack of scrutiny for generally applicable policies was precisely what concerned the Conroy court and what should concern the EEOC.

The Sixth Circuit’s ruling in Lee, and certainly its dicta, can potentially form the basis for future rulings that depart from Conroy and established case law interpreting § 12112(d)(4)(A) prohibited medical inquiries.

The EEOC should clarify its interpretation of § 12112(d)(4)(A) prohibited medical inquiries, both in the context of ADA cases as well as how the provision should be interpreted under other statutes. At a minimum, the EEOC should clarify that the Lee interpretation of § 12112(d)(4)(A) only applies in the context of the Rehabilitation Act and that no intent requirement should be read in to the provision in ADA cases. The EEOC should provide guidance consistent with Conroy that while generally applicable medical inquiries may be permitted under § 12112(d)(4)(A), courts must scrutinize these inquiries carefully to ensure that the inquiry is job.related or that there is a business necessity for such an inquiry.

[1] The EEOC Guidance provides examples of prohibited medical inquires, such as asking employees about: whether they have or ever had a disability, the kinds of prescription medications they are taking, the results of any genetic tests they have had, or about their current use of illegal drugs.


From: Blaine Gaddis
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/21/2011 4:48 PM
Subject: Public Comments on Plan for Retrospective Analysis of Significant Regulations

To Whom It May Concern:

My name is Blaine Gaddis, and I serve as International Research Manager for Hogan Assessment Systems, a company whose core business is using personality assessments for applied personnel selection and leadership development efforts. In these efforts, we diligently follow best professional practice where EEOC is concerned, gathering sufficient demographic data from participants (EEOC racial & ethnic categories, age, gender) and using these data to ensure that selection profiles and other solutions we generate for clients do not result in adverse impact against any protected group. Although personality has not been shown to produce adverse impact, we follow best professional practices to proactively test our solutions and monitor them once in place to verify that Hogan solutions do not result in discrimination in employment in any form.

In terms of our comments to guide the EEOC review, we have two observations to offer where we would appreciate increased guidance from the EEOC on best practice:

1. Validity Generalization: Although local validation provides direct evidence linking predictors to job performance and demonstrating that the predictor does not show adverse impact, in many real.world settings local validation is not possible based on a number of factors (e.g., organizational resources, small sample sizes, etc.). As such, where sufficient archival data exists, professionals can use Validity Generalization techniques (i.e., meta.analytic validity evidence, transport of validity, synthetic/job component validity) to validate the predictor. As an analogy, consider the Food and Drug Administration. Once the FDA has approved the use of a new prescription drug based on evidence from extensive trials and human testing, future patients presenting similar symptoms can be prescribed the drug without having to test that drug on each patient. Validity Generalization works in much the same way . once a predictor has been validated in one job, if professionals can demonstrate sufficient similarity between a new job and the job in which the predictor was shown to be valid, then the predictor can be considered valid for the new job without local validation. These methods are sophisticated and innovative when sufficient archival data exist to pursue them, but the field still lacks professional guidance from the EEOC about when such methods should be used, the conditions under which they are appropriate, and when they may not provide the best possible solution. Further guidance would be appreciated.

2. Methods for Identifying Adverse Impact: Although the four.fifths rule remains the standard for identifying adverse impact in hiring decisions, some professionals have started using alternative methods (e.g., mean score differences, effect sizes) for these purposes. In some cases, the use of various methods, such as the four.fifths rule versus significance of mean score differences, can result in different conclusions and bear different implications for the selection method. As such, further guidance from the EEOC would be appreciated to clearly delineate when these methods are appropriate and inappropriate for use.

We would consider it a privilege to be included in further review of EEOC guidelines as our participation is needed. If you have any questions on the above points, or if you would like our involvement in this process moving forward, please let me know.

Thank you,
Blaine Gaddis


From: "Schuman, Ilyse W."
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/21/2011 4:59 PM
Subject: Littler Mendelson Comments
Attachments: LittlerCommentLetter.pdf

Attached are comments submitted on behalf of Littler Mendelson, P.C. on the EEOC's plan for a retrospective review of its significant regulations.


From: Steve Wojcik
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 10:07 AM
Subject: National Business Group on Health Suggestions in Response to Request for Comments on Regulatory Review
Attachments: 0322011 EEOC ADA.pdf

Attached is a letter from Helen Darling, President and CEO of the National Business Group on Health requesting that, as part of its review, EEOC clarify that offering financial incentives for wellness programs that comply with HIPAA nondiscrimination requirements and EEOC’s regulations on Title II of GINA also comply with ADA requirements. Thank you for the opportunity to comment.

Sincerely,



Steve Wojcik
Vice President, Public Policy
National Business Group on Health
20 F Street, NW Suite 200 Washington, DC 20001-6700
Phone: 202-558-3012 Fax: 202-558-9244

wojcik@businessgrouphealth.org


From: Jon Hansen
To: public.comments.regulatoryreview@eeoc.gov
Date: 3/22/2011 10:39 AM
Subject: Comment on Regulatory Procedure

Hello,

The aspect of the enforcement process that is in need of modification is the lack of a claim dismissal on the part of the EEOC when no discrimination is found during an investigation of a private sector employer. If an EEOC investigator does a thorough investigation of a claim and the employer is found to have done nothing wrong then a right to sue letter should not be issued. The process as it currently stands is decidedly anti.employer as it does not clear an employer of wrongdoing, it only changes the venue for a complainant to pursue a claim. The agency does dismiss complaints by federal employees after an investigation so the mechanism for drawing a conclusion and closing out the complaint curently exists. If this is good practice for federal complaints then I believe it is also good practice for private sector complaints as well.

Respectfully,

Jon Hansen



From: Lance Seberhagen
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 1:27 PM
Subject: Comments on EEOC Regulations - Uniform Guidelines on Employee Selection Procedures

Dear EEOC:

Please accept my comments on EEOC's Plan for Retrospective Analysis of Significant Regulations, as required by Executive Order 13563, dated 1/18/11.

I have a Ph.D. in industrial and organizational psychology (University of Minnesota) and over 35 years of professional experience, specializing in employee selection, job analysis, position classification, compensation, and EEO.I work as a management consultant and expert witness (including some cases for EEOC).*
*

*
QUESTION:*Should any EEOC regulation be modified to make it more effective and/or less burdensome in achieving its regulatory objectives?*
*

*
ANSWER:*Yes.EEOC should revise the "Uniform Guidelines on Employee Selection Procedures" (Federal Register, 1978; 29 CFR 1607), and the accompanying "Questions and Answers" guidance (Federal Register 1979, 1980).These regulations need revision to (1) ensure consistency with current legal and professional standards in employee selection, (2) provide guidance for current practice in employee selection, and (3) address practical issues in EEO enforcement.

The Uniform Guidelines have not been revised since they were issued in 1978.Much has happened since then, including the Civil Rights Act of 1991, important decisions by the Supreme Court and the Circuit Courts, revision of professional standards relevant to employee selection, new scientific research in employee selection, and the development of new practices and procedures in employee selection (e.g., Internet testing).

The Uniform Guidelines are essential regulations that should NOT be abolished.They should be revised to bring them up.to.date by eliminating obsolete provisions, adding new provisions, and clarifying existing provisions, as needed. This is not the time or the place to provide detailed comments about what changes are needed, but I will provide a few brief examples, as follows.

1. Define "adverse impact" as a statistically significant difference in selection rates between two groups, as described in Stagi v. Amtrak, 3^rd Circuit, 2010.Eliminate the old "4/5ths Rule."

2. Eliminate the requirement for a "fairness study" as part of the evidence for criterion.related validity.Scientific research has shown that differential prediction rarely, if ever, occurs.

3. Establish the principle that test users (defendants) should provide enough documentation to permit an independent reviewer (e.g., EEOC's psychologist or plaintiff's expert) to replicate the results obtained by the test user's expert.For example, in the case of criterion.related validation studies, the test user should provide a copy of the raw data upon which the validity was based, as well as a copy of the tests and criterion measures.

4. Provide more detail about what evidence is needed to prove "test transportability" in which a proper validation study in one location or organization is applied to a job in another location or organization.

5. Provide guidance for validity generalization based on a meta.analysis of many validation studies of the same or similar tests.If test users are going to claim validity generalization based on meta.analysis, they should be required to provide full documentation for each study included in the meta.analysis, including the raw data, tests, and criterion measures from each study.

6. Require test users to organize all validity evidence in a formal technical report, containing one or more volumes, with appendices as needed.The report should be specific to the test.user and have a narrative section that unifies and explains all of the validity evidence for the test user's jobs, including cutoff scores and ranking procedures. Anything short of this should be rejected as unacceptable evidence.

7. In addition to the technical report about test validity, require test users to provide a "test administration manual" that provides detailed information on how each employee selection procedures is administered and scored. The test administration manual should provide information about such topics as: test administrators, testing facilities, identification of applicants, prevention of cheating, time limits, scoring, re.testing, test security, record.keeping, and reporting.

8. Test users should be required to provide all data in a commonly available electronic format that can be analyzed on a computer (e.g., MS.Excel or MS.Access).Test users may also be asked to provide data in a hard copy (paper) version, in addition to electronic files, when appropriate. Similarly, test users should be required to provide all documents in electronic format (PDF). Electronic format facilitates review and analysis by investigators, attorneys, experts, and courts. Test users may also be asked to provide some documents in hard copy (paper), when appropriate.

Respectfully submitted,



Lance Seberhagen, Ph.D.
Seberhagen & Associates
9021 Trailridge Court
Vienna, VA 22182
703.790.0796, sebe@erols.com http://www.seberhagen.com


From: "Jerilyn Whitmer (CCEQ)"
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 1:36 PM
Subject: Request for Public Comment on Plan for Retrospective Analysis of Significant Regulations pursuant to Executive Order 13563
Attachments: CCE Response March 22 2011.pdf

Attached please find the Center for Corporate Equality's response to the Equal Employment Opportunity Commission's request for public comment on the plan for retrospective analysis of significant regulations. CCE suggests that the Uniform Guidelines on Employee Selection Procedures be reviewed by the agencies that enforce them.

Thank you.
Jerilyn Whitmer
1920 I Street N.W.
Washington, D.C. 20006
(202) 280.2178


From: Robin Shaffert
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 2:51 PM
Subject: AAPD Comments to EEOC on Regulatory Review
Attachments: AAPD Comments to EEOC on Regulatory Review.doc

Dear Sir or Madam:

Attached please find AAPD's response to the Equal Employment Opportunity Commission's request for public comment on its plan to review its significant regulations.

Best regards, Robin Shaffert

American Association of People with Disabilities
Senior Director of Corporate Social Responsibility
202.521.4309 (direct)
800.840.8844 (toll free)
866.536.4461 (fax)
1629 K Street, NW, Suite 950
Washington, DC 20006
www.aapd.com


From: Lance Seberhagen
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 4:03 PM
Subject: Comments on EEOC Regulations - Uniform Guidelines on Employee Selection Procedures

Dear EEOC:

I submitted comments earlier today.Please accept these additional comments on EEOC's Plan for Retrospective Analysis of Significant Regulations, as required by Executive Order 13563, dated 1/18/11.

I have a Ph.D. in industrial and organizational psychology (University of Minnesota) and over 35 years of professional experience, specializing in employee selection, job analysis, position classification, compensation, and EEO. I work as a management consultant and expert witness (including some cases for EEOC).

*QUESTION:* Should any EEOC regulation be modified to make it more effective and/or less burdensome in achieving its regulatory objectives?

*ANSWER:* Yes. EEOC should revise the "Uniform Guidelines on Employee Selection Procedures" (Federal Register, 1978; 29 CFR 1607), and the accompanying "Questions and Answers" guidance (Federal Register 1979, 1980).

*Alternative selection procedures*.Another reason why the Uniform Guidelines should be revised is to provide more detailed guidance for evaluating alternative selection procedures that have "equal validity but less adverse impact."The Uniform Guidelines provide little or no guidance on this issue.Key points are:

1. What is the definition of "equal validity"?

2. What is the definition of "less adverse impact"?

3. Should one consider whether the alternative selection procedure is "equal practical" (e.g., dollar cost, time to administer, staff needed to administer, safety of test.takers and test administrators)?

4. What kinds of evidence provide acceptable proof that an alternative is better?For example, is it enough to cite a journal article that describes research on similar tests in different organizations, or must research be limited to the same test, same applicant pool, same job, and same organization?

Respectfully submitted,

Lance Seberhagen, Ph.D.
Seberhagen & Associates
9021 Trailridge Court
Vienna, VA 22182
703.790.0796, sebe@erols.com www.seberhagen.com


From: "Scott, Beth"
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 4:08 PM
Subject: AAUW Comments on EEOC Retrospective Analysis of Significant Regulations Attachments: AAUW Comments on EEOC Reg Review.pdf

On behalf of the nearly 100,000 bipartisan members and donors of the American Association of University Women (AAUW), I am pleased to share AAUW's comments on the Equal Employment Opportunity Commission's plan for retrospective analysis of significant regulations pursuant to Executive Order 13563. Since its founding in 1881, AAUW has been breaking through barriers for women and girls, and is committed to "oppos(ing) all forms of discrimination and support(ing) constitutional protection for the civil rights of all individuals." AAUW supports the administration's effort to enable the EEOC to achieve its regulatory objectives more effectively. However, we would like to remind the EEOC that all the current regulations it will review have already been reviewed and approved by the Office of Budget and Management. Civil rights protections that Americans depend on should not be subjected to further cost.benefit analysis. With that in mind, there are several suggestions we would make as EEOC undertakes the review process:

  • The EEOC should issue new regulations to collect compensation data from employers.
  • The EEOC should issue guidance on the permissibility of gender.based affirmative action
  • The EEOC should increase staff training to assess possible systemic wage discrimination.
  • The EEOC should better publicize protections against pregnancy and caretaker discrimination.

Thank you for the opportunity to submit comments on this important issue. I look forward to working with you to EEOC's regulatory review process. If you have any questions, please feel free to contact me at 202.728.7617.

Regards,
Beth

Beth Scott
Regulatory Affairs Manager
AAUW, 1111 Sixteenth St. NW, Washington, DC 20036
202.728.7617 | CFC# 11319


From: "Chalfie, Deborah (Debbie)"
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 4:37 PM
Subject: AARP Comments on Request for Public Comment on Plan for Retrospective Analysis of Significant Regulations
Attachments: AARP Comments on Request forPublic Comment on Plan for Retrospective Analysis of SignificantRegulations.pdf

Thank you for the opportunity to provide comments in this matter. Please find attached AARP's comments, and feel free to contact me if there are any questions about our submission.

Deborah Chalfie, Senior Legislative Representative
Economic Security, Government Relations
601 E Street NW, S10.194
Washington, DC 20049
o) 202.434.3723


From: "Ponce, Jorge"
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 4:37 PM
Subject: Feedback on EEOC's Plan for Retrospective Analysis of Significant Regulations

The Council of Federal EEO and Civil Rights Executives offers the following suggestions to captioned document . which we have bolded for easier identification.

29 CFR 1614.102(b)(2) Establish or make available an alternative dispute resolution program. Such program must be available for both the pre.complaint process and the formal complaint process up to the time when complainant has received the notice required by 29 CFR 1614.108(f). The agency will advise complainants that if they choose the ADR Program, participation will be mandatory for all parties . except where agencies have negotiated different procedures with labor unions. Moreover, EEOC would have uniformly identified the issues that do not lend themselves to ADR.

29 CFR 1614(b). 4) Designate a Director of Equal Employment Opportunity (EEO Director), EEO Officer(s), and such Special Emphasis Program Managers (e.g., People With Disabilities Program, Federal Women's Program and Hispanic Employment Program, or any other deemed necessary), clerical and administrative support as may be necessary to carry out the functions described in this part in all organizational units of the agency and at all agency installations. The EEO Director shall be under the immediate supervision of the agency head or his/her designee.

29 CFR 1614(b)(6) Ensure that full cooperation is provided by all agency employees to EEO Counselors and agency EEO personnel in the processing and resolution of pre.complaint matters and complaints within an agency and that full cooperation is provided to the Commission in the course of appeals, including granting the Commission routine access to personnel records of the agency when required in connection with an investigation. When EEO Counselors and EEO Investigators call for face.to.face interviews and they are in the same geographic location as the agency employees, they agency will comply with these requests.

29 CFR 1614.107(a)(1) That fails to state a claim under Sec. 1614.103 or Sec. 1614.106(a) or states the same claim that is pending before or has been decided by the agency or Commission, or fails to meet a prima facie case (appeal rights will be provided to OFO).

29 CFR 1614.107(a) (6) Where the complainant cannot be located, provided that reasonable efforts have been made to locate the complainant and the complainant has not responded within 15 days to a notice of proposed dismissal sent to his or her last known address or to a personal e.mail account.

29 CFR 1614.107(a) (7) Where the agency has provided the complainant with a written request or electronic request to a personal e.mail account to provide relevant information or otherwise proceed with the complaint, and the complainant has failed to respond to the request within 15 days of its receipt or the complainant's response does not address the agency's request, provided that the request included a notice of the proposed dismissal. Instead of dismissing for failure to cooperate, the complaint may be adjudicated if sufficient information for that purpose is available.

29 CFR 1614.108(c)(1) The complainant, the agency, and any employee of a Federal agency shall produce such documentary, electronic, and testimonial evidence as the investigator deems necessary.

Jorge E. Ponce and Delia Johnson
Co.Chairs
Council of Federal EEO and Civil Rights Executives
http://fedcivilrights.org


From: "Yates, Elizabeth"
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 4:52 PM
Subject: NWLC Comments to EEOC re: Retrospective Analysis of Significant Regulations Attachments: NWLC Comments to EEOC Regarding Retrospective Analysis of Significant Regulations.pdf

Please see the attached comments. Please don't hesitate to contact me if there are problems with the transmission of this document.

Thank you.
Elizabeth Yates
Program Assistant
Education & Employment
National Women's Law Center
(202) 588.5180
www.nwlc.org


From: "Vadim S. Alatortsev"
To: public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 7:31 PM
Subject: Comments and Suggestions

Dear Members of the Commission:

Since the EEOC is planning to begin a new, periodic retrospective review of its existing significant regulations, and have requested public comments in order to make the EEOC’s regulatory program more effective and/or less burdensome in achieving its regulatory objectives, I would like to make a few suggestions.

I hope that the Commission is aware of the fact that a lot of companies in the United States are using their own internal rules and employment regulations, which allow those companies to use the loopholes in the existing employment nondiscrimination laws. Therefore, I would like to propose that Title VII of the Civil Rights Act of 1964 should be modified, streamlined and expanded, in order to close those loopholes.

I think that new regulations should prohibit the creation by employers of their own rules and conditions for employment, which put certain groups of employees (e.g., from very wealthy families) in clear advantage over other employees (e.g., those who are not millionaires themselves and/or do not have such relatives) in terms of employment and career opportunities. The reason I am bringing this up is because Morgan Stanley (MS) and its newly created Morgan Stanley Smith Barney (MSSB) financial investments branch have a two year training program for their new financial advisors, where a condition for continued employment is that new financial advisors must meet certain production requirements, i.e. bring enough assets (i.e. money) to the company, which in case of MS and MSSB is $15 million of assets under management by the end of training period, with quarterly production reviews and assessments.

At first glance, it would seem that there is nothing wrong with the setup of the training programs at MS and MSSB, but there are well hidden violations of Title VII of the Civil Rights Act of 1964. For example, branch managers of MSSB in Baltimore, MD and their regional managers do not even hide it and openly talk at internal meetings that they "need to hire more people from wealthy families", so the managers could meet their quotas and get "fat" bonuses, while on the official level the executive management of the company talks about hiring "talent", diversification, etc., which is simply outrageous and disgusting. Basically, the managers of the company are scouting the entire country in search for people from wealthy families and offer them a job at the company in exchange for transferring their family money to the company for management. As a result, all newly hired financial advisors from wealthy families end up transferring tens of millions of dollars to the company, so they could meet $15 million production requirement and keep their job. It is unfair to such hard working people like myself, to say the least, because my family, like the majority of American families, are not millionaires and we do not have relatives, who are millionaires and who could give me $15 million to manage, so I could meet the unrealistic $15 million production requirement by MSSB and keep my job too.

Last year I wrote several complaints to the President and CEO of MS and MSSB and asked them to make it fair and prohibit the usage of personal and family assets towards meeting the production requirements in their training program, so every newly hired financial advisor would work in equal conditions and have an equal chance to succeed and have a successful career at the company, but my official requests to adjust their training program were simply ignored. Instead, on September 27, 2010 I was let go by MSSB office in Baltimore, MD for "not meeting their production requirements"... As a result of MSSB's discriminatory and unfair employment policy and actions, I am still unemployed and I am not able to find a decent job, especially in this economy, even though I hold a doctorate degree from the Johns Hopkins University. I know it sounds very banal, but I need to feed my family and my newborn son...

I do not know how it looks to the members of the EEOC, but in my opinion there is absolutely no equal employment opportunity at MS and MSSB, regardless from which angle you would look, because this company favors only the wealthy and their money, and I believe that all other financial investments firms in the US have the same setup, because this is how they make money. It is a shame that this is still going on in the US, while our government is concerned about human rights elsewhere...

I hope that the members of the Commission would agree with me that the aforementioned employment practices by MS and MSSB make a mockery of the employment nondiscrimination laws in the United States. I also hope that EEOC would take into consideration my suggestions during their review of current regulations and will make necessary modifications, so the above mentioned loophole for the rich and financial investments firms in the existing employment nondiscrimination laws would be finally closed.

Thank you for your time and consideration.

Sincerely,
Vadim S. Alatortsev, Ph.D.


From: Sarah Crawford
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 8:27 PM
Subject: Review of Regulations
Attachments: National Partnership for Women & Families Comments.pdf

Please find attached the comments of the National Partnership for Women & Families.

Sarah Crawford

sarah crawford
director of workplace fairness
scrawford@nationalpartnership.org
national partnership for women & families
1875 connecticut avenue, nw | suite 650 | washington, dc 20009 direct phone: 202.238.4852 | main: 202.986.2600 | fax: 202.986.2539
www.nationalpartnership.org


From: Sarah Crawford
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 8:29 PM
Subject: EEOC Review of Regulations
Attachments: LCCR Employment Task Force Comments.pdf

Please find attached the comments of the Employment Task Force of the Leadership Conference on Civil and Human Rights.


From: "Eastman, Michael"
To: public.Comments.RegulatoryReview@eeoc.gov
Date: 3/22/2011 11:24 PM
Subject: Comments of the U.S. Chamber of Commerce
Attachments: EEOC regs 3-22-11.pdf

Attached, please find the comments of the U.S. Chamber of Commerce. Thank you,

Michael J. Eastman
Executive Director, Labor Law Policy
U.S. Chamber of Commerce
1615 H Street NW
Washington, DC 20062
(202)463.5342 meastman@uschamber.com


From: lisa siegle
To: Public.Comments.RegulatoryReview@eeoc.gov CC: Gary Siegle
Date: 3/23/2011 4:36 AM
Subject: Full Disclosure of mistakes/errors EEOC makes

I believe it is important to disclosure mistakes/errors that Agency makes, in addition to the data collected on number of cases taken. Don't just report HALF the report card...Report all of it!

I am living proof of EEOC's federal personnel careless errors. How can you mistake/send a file to the respondents attorney instead of the Department of Justice? I was rendered a Favorable ADA just cause determination. Now, my case is comprise due to EEOC lost of chain.of.custody. Public needs to be aware of this very costly unavoidable event.

Still shocked? Call me, it gets better! As, I stated, above, this is happening RIGHT NOW! Image that!

Thank you,
Mrs. Siegle


From: Patricia Hess
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/24/2011 12:46 AM
Subject: Public Comments concerning Expanding EEOC policies

Dear EEOC,

The deadline for my comment has been exceeded. However, I just found the request for public comments today. Please accept my apology for the lateness. Please accept my comments for your review and consideration on further public policies concerning expanding EEOC policies.

I am a 58 year, female with a bad credit history and have been unemployed for over two years. I have applied for jobs that I am well qualified for or that I am over qualified for and have been told that:

  1. They have selected the job applicant already
  2. They will not hire because of credit history.

Concerning Age Discrimination: "An employment policy or practice that applies to everyone, regardless of age, can be illegal if it has a negative impact on applicants or employees age 40 or older and is not based on a reasonable factor other than age."

How does an employment applicant prove age discrimination? Discrimination is clearly present with current insidious hiring trends and some of these trends are a legal method, in which to discriminate against individuals already protected by the United States Code?

It is now common practice that companies do not like to hire someone that is currently unemployed or that has a bad credit rating.

Can we eliminate some of the "mixed motive" of age discrimination by writing into law Credit Record and Employment status discrimination laws?

Below is a beginningtaken from a copy of the US Code and changed a bit.

Credit Record Discrimination

It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s current or past credit record; or

(2) to limit or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s current or past credit record.

National security

Notwithstanding any other provision, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if-

(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and

(2) such individual has not fulfilled or has ceased to fulfill that requirement.

Unemployment Discrimination
It shall be an unlawful employment practice for an employer -

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s current unemployment; or

(2) to limit or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s unemployment. National security

Notwithstanding any other provision, it shall not be an unlawful employment practice for an employer to fail or refuse to hire and employ any individual for any position, for an employer to discharge any individual from any position, or for an employment agency to fail or refuse to refer any individual for employment in any position, or for a labor organization to fail or refuse to refer any individual for employment in any position, if-

(1) the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President; and

(2) such individual has not fulfilled or has ceased to fulfill that requirement.

Truly,
Patricia Hess


From: KATHLEEN MULLIGAN
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/28/2011 7:43 PM
Subject: AJA COMMENTS
Attachments: AJA Comments re January 2011 Notice.pdf

Attached on behalf of the Administrative Judges Association [AJA] are our comments in response to the request for Input on EEOC’s Plan for Retrospective Review of its Significant Regulations.

Kathleen Mulligan
President, AJA

cc:
Joel Kravetz, Vice-President
Veroneca Burgess, Board Member
Robert W. Kimball, Board Member
Jeanne Player, Board Member
Nancy Weeks, Board Member


From: Sharon Thomas
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 3/31/2011 8:35 PM

I have two suggestions for the regulation review committee to improve regulation of the existing nondiscrimination employment laws. The regulation that cases substantiating employment discrimination by local and state employees be referred to that state’s Attorney General is ineffective and a conflict of interest and should be repealed. This would lower the temptation of government corruption, deter further acts of discrimination and increase revenues for the EEOC. If not repealed a government employee should have the right to an attorney at the expense of the state or the EEOC. As a matter of fact in some cases the regulation review committee should consider providing the charging party(s) some form of legal advocacy; otherwise the anti discrimination laws are useless. Criminals and/or criminal suspects are entitled to an attorney. Anti discrimination employment laws are useless if the victim does not have legal representation and/or someone to advocate on their behalf. The federal government is funding numerous nonprofit agencies, state and local governments, however a charging party has no one to turn to if they cannot afford and attorney or if the respondent party is part of the government or associated with powerful and influential members of society.

Sincerely,
Sharon T. Thomas


From: "Norma Pearson"
To: public.Comments.RegulatoryReview@eeoc.gov
Date: 4/4/2011 4:57 PM
Subject: REGULATORY REVIEW IS A WASTE OF TIME THE JUDICIAL DISTRICT COURTS SYSTEM DENIES JUSTICE


From: "Hammer, Nancy" To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 4/6/2011 1:37 PM
Subject: SHRM comment attached
Attachments: EEOC.comments on EO 13563.3.22.11.pdf

SHRM comment attached


From: Shirley
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 4/13/2011 11:02 AM
Subject: Request for Public Comments on Plan for Retrospective Analysis of Significant Regulations

To Whom it May Concern,

I just learned of the request for public comments on the plan for retrospective analysis of significant regulations. It is my understanding that the deadline has passed. Nonetheless, I am wanting to know if you will still accept mine. It is quite brief. Please advise.

Best regards,
Shirley


From: Shirley
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 4/14/2011 5:59 PM
Subject: Request for Public Comments on Plan for Retrospective Analysis of Significant Regulations Attachments: EEOC Legislative Recommendation.docx

Please see the attached to be considered for the "Public Comments on Plan for Retrospective Analysis of Significant Regulations."

Best regards,
Shirley


From: Charles Small
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 4/22/2011 2:45 PM Subject: Age discrinination

Sirs,

I am 67 and have been looking for a job for a while. Every, and I mean EVERY, job application I have filled out on.line blatantly violates your age.discrimination rules. They all ask for (and many computerized forms will not allow you to submit the application unless all the "fields" are filled out) and will not simply accept my sanitized resume:

  • Where and when I graduated from high school.
  • Where and when I went to college.
  • The dates of all my previous employment.

I am very suspicious of the many employment forms I encounter on.line. Almost all of them make me laborously fill in finely differentiated "fields" for every jot and tittle on my text resume. I assume that the purpose of making me fill in "field" after "field" (a job much better done by a computer than by a human being), asking for information that can be seen at a glance in resume (in the off chance that a real human being actually looks at my resume), is to make it easier for a pre.screening program to check my "qualifications" against a list of "blackballs." Otherwise, the writers of such programs would have to "parse" everyone's resume, which are all laid out differently, to home in on clues to age, race, gender, sexual orientation, marital status, etc. etc.

Many ask for my social security number and/or driver's license number. I can see no legitimate use of these numbers other than to run a background check and find out, among other things, my birthday. As far as I know, I need to supply my social security number when I fill out an IRS W2 form AFTER being hired, not before. And only a few jobs require me to drive so most companies have no legitimate need for my driver's license number.

And they often want my permission to run a "voluntary" credit check with the three major credit.reporting agencies. Perhaps you could find out if the software many companies now have in place to "pre.screen" the many, many resumes they get over the Internet, automatically discard any that don't "volunteer" to have all the details of their personal finances peered over and peeked into by some low.level munchkin in the Human Resources department. Only a few jobs have a legitimate need to find out if I am of "good character" (whatever that means).

I'll bet dollars to donuts that an investigation into these pre.screening programs would prove very interesting.

Is there any way to get on a mailing list to be notified of any changes you will propose after the evaluation of this commenting and fact finding is done?

Charles H Small


From: Winston H Jordan Jr
To: Public.Comments.RegulatoryReview@eeoc.gov
Date: 4/24/2011 3:25 PM
Subject: Make EEO-1 Data public - Input on EEOC’s Plan for Retrospective Review of its Significant Regulations

Today, Individual employer EEO-1 reports are held strictly confidential by law: 42 U.S.C. 2000e-8(e).

Make EEO-1 data submitted by employers public.

This information made available to the public with the use of the internet will shine light on company hiring practices.

This information will inform the public as to whether companies are providing fair opportunities to women and minorities in all levels of their organization.

Today the information is available without identifying individual companies by name and the information is publicly available in the aggregate.

If a company is investigated, the public may come to know what the distribution of women and minorities are throughout the company, but otherwise this information is unavailable by company name.

Companies are much more likely to provide fair opportunities to everyone if they know that the public has access to their EEO-1 data, especially historical data that might show improvements in inclusiveness over time.

Companies are not encouraged to be fair in hiring practices if they can operate in secrecy.

I had made this suggestion on the WhiteHouse.gov website several months ago, I hope that it will be considered for a rule change.

Thank you.

Winston Jordan


From: John King
To: public.comments.regulatoryreview@eeoc.gov Date: 5/16/2011 1:15 PM
Subject: Age Discrimination

To Whom it May Concern:

It is clear with the broadening use of technology in the form hiring software such as Peoplesoft, Newton, Resumate and others, that parameters are more and more included that exclude older, yet, qualified workers.

I am 55 years old and have been unemployed over a year and have placed numerous applications with many companies. In most cases my qualification are very much in sinc with what the companies have stated they requires and seldom am I far over qualified or significantly under qualified. I find that even with the submission of a resume, that the companies require completion of a redundant application that has read and populated the required application with information from the resume. This is notable because as well, the hiring software therefore, can calculate an applicant apparent age from the dates of supplied work history.

Noting two recent examples, Waste Management and Republic Holding, (An airline holding company for Frontier Airlines.), clearly in my opinion were excluding my application on basis of age. In both cases, I submitted my employment application online and within seconds, a rejection email was sent to me. In the case of Waste Management, in two minutes an email was received by me stating that the position was closed. Yet it showed available for more than a week after my submission. In the case of Republic Holdings for a position with Frontier Airlines, even though I had done the same type of job for for another airline for years and had received performance awards and top ratings which I listed on both resume and application, I was sent an email stated my application was received and then an email within five minutes saying there was a more qualified candidate. Clearly, no human looked at my resume or applications and an arbitrary criteria was utilized by the program to reject my applications. This could only have been done based on a criteria of age.

To prove this point, a friend of mine who is 38 years old and far less qualified put in for the same two positions at my request. In his case both applications were accepted and he has yet not received any sort of rejection of application email. Of note, he never worked for an airline and has no previous experience in that field, which was a stated requirement by Republic Holdings, still, he was not off offhandedly rejected.

With the current level of unemployment it is seemingly possible that people like me may never work again if this is allowed to continue. I have heard through different sources people in their middle 50's being unemployed for 2, 3, 4 and more years, having turned in thousands of resumes and applications and can't even get a job at a convenience store. The parameters of hiring software as set by companies that utilize these systems are excluding older workers and that is discriminatory and illegal. The EEOC needs to do more. Unlike a wink and a nod of the old days, this parameter leaves tracks and companies reported operating by this practice of discrimination need to have the program seized and evaluated for this discriminatory practice.

Age discrimination is growing faster all the time and effects more people than any other form of discrimination because employers can get away with it and there is no enforcement. Every person in this country regardless of gender, race, religion, creed, political affiliation, physical disability or any other form of discrimination, can and will also suffer age discrimination. It is the universal discrimination and need the same attention by the federal government as that for those that discriminate for other arbitrary exclusions.

It is time that age discrimination be addressed with the same vigor as other forms of illegal exclusions from hiring as the illegal practice that it has become.

John King
Denver, Colorado