In the final days of the Trump administration, a key civil rights agency published a controversial new rule to help employers sidestep and delay discrimination lawsuits. Because Donald Trump stacked the agency with Republicans whose terms outlasted his own, the policy was set to remain in place through 2022, if not longer. On Wednesday, however, Senate Democrats voted to repeal the Trump rule by a 50–48 vote using the obscure and powerful Congressional Review Act, all but ensuring the rule’s demise. The Senate’s vote marks a defeat for one of the Trump administration’s most sweeping attacks on workers’ rights.
That attack, the conciliation rule, gives employers potent tools to kill off discrimination suits before they even reach a court. It applies to the full range of civil rights claims, covering discrimination on the basis of race, religion, age, disability, sex, sexual orientation, gender identity, and more. The policy is ostensibly rooted in federal law, which requires the EEOC to engage in some conciliation—basically, settlement talks—before the agency can file a lawsuit on behalf of a worker. But in 2015’s Mach Mining v. EEOC, the Supreme Court confirmed that this requirement is minimal: It merely compels the EEOC to let the employer discuss and remedy their discriminatory practice. Before Mach Mining, companies tried to drag out settlement talks for years, then challenge their adequacy in court for several more years. The Supreme Court’s decision put an end to that obstruction.
With its conciliation rule, Trump’s EEOC decided to revive it. The regulation established a rigid new process for settlement discussions that requires the agency to devote significantly more time and resources, and gives businesses a chance to drag the talks out in bad faith. Troublingly, the rule also directs the EEOC to provide employers with the name of the worker who accused them of discrimination, as well as any witnesses to the misconduct. In theory, victims and witnesses have the right to withhold their identities. But as Maya Raghu of the National Women’s Law Center told me, “a lot of workers who file charges are unrepresented by counsel. They’re not going to know they have the ability to do this.” The threat of disclosure may dissuade workers and witnesses against coming forward to report discrimination, fearing retaliation—which is no empty threat: Raghu pointed out that more than 50 percent of charges filed with the EEOC include a retaliation claim.
The rule puts a heavy thumb on the scale for employers in several other ways. It forces the agency to reveal what facts it relied upon to find “reasonable cause” of discrimination; the criteria it will use to identify more victims; and the basis of requested relief, including a detailed calculation of damages. It also forces the EEOC to reveal when it has identified systemic discrimination and explain how it came to that conclusion. In short, the EEOC must turn over a huge amount of information to employers before litigation begins. These materials not only give employers an upper hand in settlement talks—and, later, in court—but also help them draw out these talks to delay litigation and continue discriminatory practices.
Pro-discrimination policies like this one flourished throughout the executive branch under Trump. And the Biden administration can repeal many of these regulations through the normal rule-making process, since most executive agencies are now controlled by Democrats. What’s different about the EEOC is its quasi-independence. Its five members serve staggered five-year terms, and by tradition, the president does not remove commissioners before their terms expire. As a result, the commission retains a 3–2 Republican majority today, a troika led by Janet Dhillon, who is despised by career staff for incessantly subverting her agency’s mission. (Dhillon spearheaded the conciliation rule.) And unless Biden breaks with tradition—which seems unlikely—the commission will remain in Republican hands through July 2022. Thus, when it published its conciliation rule nine days before Biden took office, the EEOC had good reason to believe the policy would remain the law of the land for some time.
Wednesday’s vote dramatically shortens that timeline. To kill the conciliation rule, Democrats seized upon an arcane law called the Congressional Review Act. The CRA allows Congress to repeal regulations passed in the final months of the previous administration by majority vote plus the president’s approval. A CRA resolution cannot be filibustered in the Senate. Congress used the act, which passed in 1996, just once before 2017; that year, Republicans used it 16 times to roll back the Obama administration’s regulations. After they seized control of Congress, Democrats were slow to start the CRA process, even though the law creates a narrow window that will slam shut on May 27. Over the last few weeks, they’ve picked up the pace: Senate Democrats recently voted to repeal one Trump rule removing key limitations on methane emissions and another permitting banks to scam customers with exorbitant interest rates. (The House of Representatives is certain to pass both resolutions, and Biden will sign them.) Now the conciliation rule will join the pile of Trump regulations destined for the dustbin.
Public Citizen’s Amit Narang told me that Democrats’ targeted use of the CRA makes sense for two reasons. First, they’ve focused on agencies with substantial independence from the president: The Trump rule authorizing sky-high interest rates, for instance, was issued by an office that, like the EEOC, does not answer directly to the president. Second, some of the best CRA targets “were rushed and done in such sloppy and incompetent fashion that they’ve been taken off the books by courts,” Narang said. On Feb. 1, for example, a federal judge struck down a Trump policy that would undercut the use of public health studies in developing environmental regulations. The Trump administration’s slipshod effort to rush the rule without legal justification wound up dooming it.
Progressives may be disappointed that Democrats did not pass more CRA repeals in the early months of 2021. There is, after all, no chance that they will hold a candle to Republicans’ unprecedented use of the CRA to wipe out 17 Obama administration policies. Yet this disparity reflects differing priorities between the parties: Democrats used up valuable floor time to pass the American Rescue Plan, while Republicans failed to pass major legislation under Trump, leaving ample time for CRA votes. That Democrats were able to pass a $1.9 trillion stimulus and repeal the Trump EEOC’s signal achievement in less than six months demonstrates that the party can forge its own path and erase Trump’s dangerous administrative sabotage at the same time.
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