Harassment guidance for employers awaits approval from White House

The White House is reviewing an Obama-era proposal from the Equal Employment Opportunity Commission (EEOC) that would update federal guidance for employers on preventing harassment in the workplace.

Released before the “Me Too” movement, and just 10 days before President Trump took office, the proposal most notably extends the EEOC’s interpretation of sex-based harassment to include harassment based on gender identity and sexual orientation, among other things.

The language is at odds with the way Cabinet officials in the Trump administration have viewed and carried out the laws governing discrimination, which can include harassment, when it comes to LGBT people.

And that’s why civil rights advocates and a former commissioner fear it won’t be approved.

“We have great concern that the deliberate and careful process that led to the right decision made by the EEOC in this guidance may be subject to the same fate as quick, partisan, hostile interpretation of rights for kids in education,” said Noreen Farrell, executive director of Equal Rights Advocates.

“You can be sure that organizations like mine that have sued the Department of Education for rolling back civil rights for kids will be carefully considering what the administration tries to do in terms of unraveling this guidance.”

After taking office, Attorney General Jeff Sessions and Education Secretary Betsy DeVos were quick to roll back Obama-era guidance that allowed students to use the bathroom that corresponds with their gender identity, rather than the bathroom that corresponds with their sex assigned at birth.

In October, Sessions reversed the federal government’s policy of including transgender people in protections again discrimination in the workplace. In a memo to Justice Department officials and U.S. attorneys first obtained by BuzzFeed, Sessions said, “Title VII’s prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.”

And this week the Education Department confirmed it’s no longer investigating civil rights complaints from transgender students barred from school bathrooms that match their gender identity, The Washington Post reported.

But this isn’t the first time the EEOC has interpreted the civil rights law this way.

Tasked with investigating charges of discrimination against employers, the commission held in 2012 that intentional discrimination against a transgender individual because of that person’s gender identity is, by definition, discrimination based on sex and therefore violates Title VII. And under that precedent, the agency held in 2015 that an employer’s restrictions on a transgender woman’s ability to use a common female restroom facility constituted disparate treatment.

What’s unusual, former EEOC Commissioner Jenny Yang said, is that the guidance is under review by the White House Office of Information and Regulatory Affairs (OIRA) and has been since November.

Yang, who left the EEOC on Jan. 3, said the proposal is sub-regulatory guidance, which is not typically reviewed by the White House because it’s only an expression of the agency’s policy.

“It’s our view of the law,” she said. “There’s no binding effect on employers. It never says you must do that or have to do this. It’s our interpretation of the law and it’s meant to be a resource for employers as opposed to a directive.”

Yang said she’s concerned about the future of the guidance. In their effort to eliminate regulations, she said the Trump administration has been grouping in guidance that can be helpful to clarify the law.

OIRA Administrator Neomi Rao said in a teleconference hosted by the Federalist Society last week that OIRA is cracking down on bad regulatory actions.

“We want to make sure guidance isn’t a back door to regulating,” she said.

But Carol Miaskoff, an associate legal counsel at the EEOC, said the agency’s proposal would actually update and consolidate five different guidance documents, the oldest dating back to the 1980s.

“The law has gradually evolved and we’d like to keep up to speed with that so we don’t have guidance that’s out of date,” she said.

Miaskoff would not comment on the specifics of the proposal now under consideration since the substance of the guidance could change following the White House review.

Opponents argue the EEOC has overstepped its regulatory authority.

While the Employment Law Alliance agrees that transgender people should be protected from discrimination, New York member Ginger Schröder said the current law can’t be extended to accomplish that goal.

“It’s a slippery slope when you allow an agency to legislatively rulemake without going through the appropriate process,” she said. “We’re set up as a nation of laws. We have a procedure in place for the passage of laws and the interpretation of laws and it should not be the case that EEOC is expanding the scope of a statute without going through that proper process.”

Peter Sprigg, a senior fellow for policy studies at the conservative Family Research Council, said the EEOC’s interpretation goes beyond both the intent of Congress and the plain meaning of the statutory text of Title VII of the Civil Rights Act of 1964.

“Congress has repeatedly considered — and rejected — legislation that would add ‘sexual orientation’ and ‘gender identity’ as protected categories in federal employment discrimination laws,” he said.

“The EEOC has no business smuggling these concepts into the law through its strained interpretation of ‘sex discrimination.’ ”

But advocates argue employees need this guidance now more than ever, with the “Me Too” movement bringing to light pervasive sexual harassment in the workplace.

“In an administration that has been focused on rolling back rights for minorities, women and LGBT individuals, we call on the Administration to promptly finalize and release a meaningful and robust Guidance to help eradicate workplace harassment,” Dariely Rodriguez, director of the economic opportunities project at the Lawyers’ Committee for Civil Rights Under Law, said in a statement.

The EEOC now has two vacancies on its five-member board. Trump’s picks to fill the open seats — corporate lawyer Janet Dhillon and retired Army Lt. Col. Daniel Gade — are awaiting Senate confirmation.