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By Chris Opfer
The Equal Employment Opportunity Commission sent the White House updated guidance on combating workplace harassment about a month after reports of sexual assaults by Hollywood producer Harvey Weinstein launched the #MeToo movement. Half a year later, the guidance is still on hold.
“It is pending clearance at OMB,” Acting Commission Chair Victoria Lipnic (R) told Bloomberg Law June 11. “I have been very persistent in trying to move it along.”
The case of the stalled guidance raises questions about the EEOC’s role in enforcing anti-harassment law, the White House’s oversight of rulemaking by independent agencies, and the Trump administration’s approach to sexual orientation and gender identity discrimination.
The guidance, a 70-some page document that explains the EEOC’s view of workplace harassment law, is widely believed to be on ice at least until the Senate confirms President Donald Trump’s Republican nominees for two open seats on the five-member commission. Those confirmations have been tied up, thanks to a political spat over Trump’s decision to renominate Chai Feldblum (D) for another five years on the EEOC. The draft covers harassment on various bases, including sex and race, and weighs in on whether sex bias includes sexual orientation and gender identity bias.
The OMB hasn’t responded to Bloomberg Law’s requests for comment on the status of the guidance. OMB’s Office of Information and Regulatory Affairs, a clearinghouse for executive branch rules, doesn’t list the guidance as pending on its website.
“This is very strange,” Amit Narang, a regulatory policy advocate at Public Citizen, told Bloomberg Law. “The fact that it’s just been sitting there for so long—and already the review of guidance documents is much less formal than for regulations—has made this a really curious situation.”
The uncertainty comes at a critical juncture for the EEOC, the government’s lead enforcer of federal employment discrimination law. Swirling public attention on sex harassment stemming from a flood of allegations against Weinstein and other high-profile figures is showing no signs of slowing down.
“Both employers and employees benefit from understanding how the enforcement agency views myriad harassment issues,” Jonathan Segal, a Philadelphia attorney who represents businesses in employment matters, told Bloomberg Law. “Without guidance, I strongly believe litigation is more likely. How does that benefit anyone but the lawyers?”
The situation also highlights divergent views about the reach of federal discrimination law. The guidance includes EEOC’s position that the federal ban on sex-based harassment covers harassment based on sexual orientation and gender identity. The Justice Department has taken the opposite stance under Trump, arguing against the EEOC in a closely watched legal battle that could end up before the U.S. Supreme Court.
Then there are the rulemaking implications. The EEOC is an independent agency, which means it’s not required to get the White House’s blessing before publishing regulations and issuing guidance. The Trump administration has generally signaled a skeptical approach to guidance, which doesn’t have the force of law. Republicans have chided agencies for using the documents to make legal determinations without moving legislation through Congress or publishing rules through the notice and public comment process.
The EEOC rolled out a proposed version of the guidance in January 2017, just 10 days before Trump was inaugurated. The agency consulted a task force of lawyers for workers and businesses and employment law scholars before drafting the guidance. It also decided to give the public the opportunity to comment on the proposed guidance, a step that’s often reserved for regulations that have the force of law.
“We pushed for getting public comment” on the guidance, Feldblum told Bloomberg Law, “and I think we benefited from that.”
The document was meant to provide official agency policy on a range of topics, including how severe offensive conduct has to be to qualify as harassment and the circumstances under which an employer can be liable for actions by managers and other workers. It also provides specific factual scenarios to describe how the law applies in real workplaces and details a number of “promising practices” that businesses can take to prevent and address harassment on the job.
Jenny Yang, who was the EEOC’s chair when the agency unveiled the proposed guidance, said the guidance can help employers understand their legal responsibilities.
“The agency is continuing to enforce the law and the guidance was intended to give businesses more clarity in order to comply,” said Yang, a Democrat. “The administration’s framework is trying to reduce regulatory burden, but it’s overlooking that guidance documents can be helpful in understanding the law.”
Nearly one-third of the 84,000 charges filed with the agency last year involved alleged harassment.
The EEOC unanimously approved an updated version of guidance after reviewing public comments and sent the draft to the White House Office of Management and Budget in November. The White House has yet to give the document its stamp of approval. Sources familiar with the situation have told Bloomberg Law that the OMB also sent the guidance to the Justice Department for review,
The DOJ last July changed its position on LGBT rights under federal workplace discrimination law, saying a ban on sex discrimination doesn’t extend to sexual orientation and gender identity bias.
Meanwhile, four Republican senators have effectively placed a hold on Feldblum’s nomination for a third term, citing concerns about her position on how religious freedom intersects with sexual orientation and gender identity protections under the law. Democrats aren’t willing to waive mandatory debate time on Trump’s picks for Republican EEOC seats—Janet Dhillon and Daniel Gade—unless Majority Leader Mitch McConnell also moves Feldblum’s nomination to the floor as part of a package deal. McConnell hasn’t yet been willing to chew up precious legislative time by allowing full debate on the EEOC nominees, leaving all three—and possibly EEOC general counsel in waiting Sharon Gustafson—in a holding pattern.
Feldblum declined to comment on that report but told Bloomberg Law she intends to stay on the commission. She can remain in her seat through the rest of the year if not confirmed for another term.
“I am so jazzed about trying to help this campaign of eradicating harassment,” she said. “There is a ton of stuff I can do on the commission to do that and there is a ton of stuff I can do off the commission.”
The guidance appears to be in limbo until that dispute is resolved. The uncertainty is creating some frustration for lawyers on both sides of the aisle who want a better picture of how the federal agency tasked with enforcing anti-harassment law interprets that law.
“In a moment where we have a huge cultural and societal reckoning, this administration is showing it’s not going to take a leadership role in preventing sexual harassment,” Debra Katz, a Washington, D.C., lawyer who represents employees in harassment cases, told Bloomberg Law.
The holdup in the White House is curious, some observers say, because the EEOC arguably doesn’t need anyone else in the Trump administration to sign off on the guidance. Others say getting this input is the mindful approach.
As an independent agency, the EEOC is supposed to be shielded from some of the political process. Commissioners can’t be removed without cause, and they’re given staggered terms to avoid allowing one president to bring in a whole new leadership slate in one fell swoop. These agencies also don’t have to get input from the White House before developing regulations and guidance.
Part of the reason OIRA doesn’t get to review independent agency guidance is to cut down on politics impacting the substance of the regulation,” Public Citizen’s Narang said. “That’s the whole point of their independence.”
But going through the public comment process and giving OMB a chance to weigh in is what all agencies should be doing, according to Wayne Crews, a policy fellow at the free market think tank Competitive Enterprise Institute.
“In principal, that is what should happen with all controversial guidance,” Crews said. “That it’s being treated like a rule is a good thing because that affirms the democratic process.”
Lipnic told Bloomberg Law that she has no plans to release the guidance without White House approval.
“I would not do that and I do not think that’s appropriate for the EEOC,” Lipnic said. “I believe in a unified executive and I believe that their review is important and necessary.”
The Trump administration and Republicans in Congress have expressed concern about regulatory “dark matter,” which they say some agencies churn out with little or no oversight. They’re also anxious about agencies using informal guidance to make or interpret law in a binding way.
A group of House Republicans in March detailed what they called a “vast and expanding” universe of guidance documents. Although executive agencies are supposed to send guidance documents to the White House for review, they said many agencies pump out the documents with little or no oversight.
Trump’s “one-in-two-out” executive order on cutting regulations also applies to some guidance from executive agencies. It requires new guidance documents with a “significant economic impact” to be offset by other deregulatory actions.
The Justice Department in January said it would no longer allow government attorneys to rely on agency guidance in lawsuits. Attorney General Jeff Sessions has also instructed the DOJ to repeal or update guidance documents that could be read to have the force of law.
Meanwhile, businesses and employees—and their lawyers—aren’t completely in the dark about how the EEOC approaches harassment. The proposed guidance is still publicly available through the agency’s website.
“A lot of the things that the EEOC is suggesting in the proposed guidance are best practices,” Katz said. “If we’re going to effectively deal with harassment in the workplace, it has to be about more than liability. It has to be about how we change the culture.”
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