Thirty-two years ago today, the U.S. Supreme Court handed down a unanimous decision in Meritor Savings Bank v. Vinson. The court ruled that the Civil Rights Act of 1964 protects workers from sexual harassment. The Meritor Savings decision enshrined legal recognition of sexual harassment as a form of discrimination on the basis of sex. On the anniversary of that landmark decision, the Trump administration is twisting the regulatory process to prevent the release of a long-awaited federal guidance document on workplace sexual harassment.
During the waning days of the Obama administration, the Equal Employment Opportunity Commission (EEOC) unanimously approved guidance clarifying for the public what the agency considers to be unlawful workplace harassment. The EEOC guidance will help employers understand the law and more easily comply. After the comment period closed in March 2017, EEOC submitted the guidance to the OMB Office of Information and Regulatory Affairs (OIRA). OIRA serves as a last stop for White House review of agency actions. Since then, the EEOC’s guidance has been effectively mothballed. Earlier this month, Acting EEOC Chair Victoria Lipnic told Bloomberg Law that the document was “pending clearance at OMB.”
To begin with, OIRA’s authority to review agency guidance documents, which are not legally binding as is the case with regulations, is murky at best. While OIRA review of regulations comes with certain transparency requirements (which OIRA usually ignores) and limitations on how long OIRA can keep regulations under review (which OIRA has routinely ignored in the past), OIRA review of guidance is much less formal and is best described as “off the books.” That is certainly the case here given the EEOC guidance is nowhere to be found on the OIRA website and has languished at OIRA for more than eight months. Public Citizen’s Regulatory Policy Advocate, Amit Narang, described the situation as “very strange” adding “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.”
Ultimately, the situation comes down to politics at the expense of worker protections. A Senate battle over EEOC commissioner nominations is the likely culprit for the absurd delay in OIRA review of the guidance. A subgroup of Senate Republicans are holding the renomination of Democratic Commissioner Chai Feldblum based on her support of LGBT rights. In response, Senate Democrats are refusing to allow quick passage of the two Republican nominees for EEOC Commissioner. It’s becoming clear that the White House is attempting to pressure Senate Democrats by holding up the guidance at OIRA.
While politics has always been suspected as the key driver of OIRA review, OIRA has long maintained that its review is focused on improving the quality of the rules it reviews and is solely about substance, not politics. Yet OIRA’s refusal to release the guidance blows up that myth. OIRA’s actions have nothing to do with the substance of the guidance and everything to do with a political fight over EEOC nominations.
This kind of irresponsible management does serious damage to the integrity of the regulatory process. The use of OIRA review as a political weapon or negotiating tactic delegitimizes the review process and sustains a precedent that can only lead to inefficiency. More urgently, unnecessarily delaying the guidance puts workers at risk of sexual harassment – which is made even more reprehensible in the wake of the Harvey Weinstein and increasing revelations and awareness of the prevalence of sexual harassment throughout almost every major American industry.
For the sake of workers, survivors of unlawful harassment and good government; OIRA must #Releasetheguidance.