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National Restaurant Association - Agency overreach draws fire at Senate hearing

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Agency overreach draws fire at Senate hearing

Should the Equal Employment Opportunity Commission investigate businesses on its own when no complaints have been filed?

That was the question at the center of a recent Senate committee hearing, when the EEOC’s investigation of alleged age discrimination by Texas Roadhouse was held up as an example of possible overreach by the agency. The EEOC brought a case against the Louisville, Ken.-based national chain in 2011, claiming the company refused to hire individuals 40 and over for front-of-the-house positions. The case is based on the EEOC’s assessment of Texas Roadhouse employees’ demographics rather than employee complaints of discrimination.  The case has yet to be resolved.

Texas Roadhouse denies the allegations and filed a federal lawsuit against the EEOC last year, claiming the agency failed to turn over a number of records related to the case, including the amount the EEOC has spent on its case against Texas Roadhouse, records relating to how the EEOC began its investigation, and all media statements EEOC has made regarding the case. Three members of Congress also contacted the EEOC and asked them to release the information.

Speaking at the hearing, Sen. Lamar Alexander (R-Tenn.), chairman of the Committee on Health, Employment, Labor and Pensions, said he was concerned about the EEOC pursuing investigations on its own, particularly when the agency has a backlog of more than 75,000 complaints of alleged discrimination to investigate.

“EEOC is investigating the Texas Roadhouse restaurant chain for age discrimination as well — because their hosts, bartenders, and servers seem too young,” Alexander said. “There were apparently no complaints when they started, although their investigations may have stirred some up. In fact, the agency is putting up Craigslist ads trying to churn up even more complaints.” EEOC General Counsel David Lopez, who testified at the hearing, denied that the agency had placed any ads on Craigslist.

Alexander cited another example of EEOC’s overreach — its recent discrimination claims against employers that offer discounted health insurance to employees who participate in wellness programs. Even though the programs are allowed under the Affordable Care Act, the EEOC has been filing lawsuits against employees under the Americans With Disabilities Act and Genetic Information Nondiscrimination Act, claiming that the increased health insurance premiums paid by employees who don’t participate are discriminatory.

The National Restaurant Association recently joined other business organizations in asking Congress to pass legislation to increase EEOC transparency and accountability and reaffirm existing law on employee wellness programs. 

“While we support the EEOC’s mission of preventing discrimination in the workplace, we’re troubled by its pursuit in recent years of frivolous investigations that are not driven by employee complaints,” said National Restaurant Association Senior Vice President and Regulatory Counsel Angelo Amador. He detailed the NRA's concerns in a five-page statement to the Senate HELP Committee. 

The NRA supports the following legislation aimed at ending EEOC overreach:

  • Litigation Oversight Act of 2015, H.R. 549: Would ensure that ensure the EEOC better directs its resources towards its mission of ending unlawful discrimination.
  • Equal Employment Opportunity Commission Transparency and Accountability Act, H.R. 550: Would require the EEOC to publish on its website each case it has brought to court, the fees or costs the Commission has been ordered to pay in the case, and whether the litigation was approved by the Commission.
  • Certainty in Enforcement Act, H.R. 548: Would protect employers that are engaging in employment practices required by federal, state, or local laws from EEOC prosecution.
  • Preserving Wellness Programs Act, H.R. 1189: Would protect employer-sponsored wellness programs by reaffirming existing law.
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