On Tuesday, Senator Patty Murray (D-Wash.) and Representative Bobby Scott (D-Va.) will take a crucial step toward reversing a rule issued by the Trump administration that has made it much more difficult for workers to secure justice when they are discriminated against at work, The Nation has learned. It’s the first use of the Congressional Review Act to reverse Trump-era rules and regulations.
Murray and Scott will introduce a resolution of disapproval against a rule change at the Equal Employment Opportunity Commission, the country’s sole civil rights workplace watchdog, implemented by the former Trump-appointed chair Janet Dhillon. That begins the CRA process of reversing the Trump-era rule. If successful, it will also prevent any future administrations from implementing similar rules at the agency.
After Dhillon was confirmed as the chair of the EEOC in 2019, she took a number of unilateral actions that, sources inside and outside of the EEOC told The Nation, all but ground the gears of justice at the agency to a halt. One of the most damaging, they said, was changes she made to the conciliation process, a procedure the agency must undertake to try to reach a settlement once it believes discrimination likely occurred before it sues employers in court.
Under a pilot program Dhillon unilaterally implemented nationwide last year, EEOC investigators were required to give employers virtually all of the information they used to determine that the employer broke the law, including its theory of the case, anything that “raised doubt,” and all potentially exculpatory evidence, far more than is required in civil cases. She also imposed caps on how much money EEOC investigators could seek on behalf of victims, above which they had to go through the burdensome and lengthy process of getting approval from higher-ups. That incentivized investigators to ask employers for smaller amounts.
As Diane King, a labor-side employment lawyer at King & Greisen in Denver who has gone through the conciliation process many times, previously told The Nation, the conciliation pilot program was “just a colossal failure,” making it harder for her to reach a settlement on behalf of a female client who had worked for a water utility and faced so much sexual harassment that she had a breakdown. That client still hasn’t been able to work and has lost hundreds of thousands of dollars in income.
Dhillon then moved to make changes to the conciliation process permanent late last year. At first, she took all of the pilot program’s changes and went further, proposing that investigators be required to reveal the names of anonymous witnesses who had come forward to aid a case, potentially putting their jobs and livelihoods at risk. That requirement was dropped in last-minute negotiations, but investigators have still had to give employers a written summary of the facts that lead them to believe discrimination occurred, the legal basis for that finding, as well as an explanation of the type and size of the case, slowing down the whole process. Then-EEOC commissioner and current chair Charlotte Burrows said at the time that the permanent rule made by Dhillon would “lead to expensive and needless litigation” and “divert limited, precious resources away from fighting discrimination.”
The changes to conciliation were akin to “the EEOC snatching defeat from the jaws of victory and saying, ‘Let’s tie our own hands,’” Emily Martin, vice president for workplace justice at the National Women’s Law Center, previously told The Nation. In 2015, the Supreme Court unanimously ruled in the EEOC’s favor in Mach Mining LLC v. Equal Employment Opportunity Commission. After the agency sued the company for having never once hired a woman for a mining position, the company fought back by arguing the EEOC hadn’t followed proper procedure in trying to conciliate first, a tactic nearly every employer had come to adopt to delay attempts to hold them accountable for discrimination. The Supreme Court argued, however, that the EEOC doesn’t have to follow any hard and fast rules in the conciliation process, ending those debates.
Yet Dhillon decided to impose hard and fast rules on it anyway. She implemented the changes despite an internal EEOC review of hundreds of failed conciliations finding that the most common reason they didn’t work out was because employers declined to participate or because the parties couldn’t agree on a monetary figure, not because the EEOC wasn’t sharing enough information.
“When workers bring credible claims of discrimination to the EEOC, they deserve a fair process that protects their rights and shields them from retaliation,” Representative Bobby Scott told The Nation in an e-mail. “Unfortunately, the new rule forces the EEOC to abide by a strict formalized process that was previously struck down by the Supreme Court six years ago and would strip the EEOC of the flexibility to act in the best interests of workers. By repealing this rule, Congress will eliminate wasteful litigation that would cause substantial delays or even deny justice for victims of discrimination.”
The conciliation rule change was one of the top reforms to the EEOC pursued by the Chamber of Commerce. Dhillon herself helped found the Retail Litigation Center before joining the EEOC, an organization that sided with Mach Mining and against the EEOC in the 2015 Supreme Court case.
Dhillon said when she took over the agency that she saw litigation as “a last resort.” The impact of her agenda over her tenure was clear: The EEOC filed just 93 lawsuits in 2020, compared to 199 in 2018. When the agency brings fewer cases it leaves victims on the hook to pay to pursue their own case or to simply give up. It also sends a signal to employers that they are more likely to get away with allowing discrimination to happen.
Some of the changes Dhillon made have been relatively easy to reverse. Democratic EEOC chair Burrows has already ended the conciliation pilot program and another one that Dhillon instituted that made changes to the pre-investigation mediation process. But doing away with the permanent conciliation rule required congressional intervention. Now Murry and Scott are using the tools available to them to do just that.
“This unfair, anti-worker rule was designed to tip the scales in favor of employers when workers try to make sure their rights on the job are enforced. There’s absolutely no reason it should stay on the books,” Senator Murray told The Nation in an e-mail. “We’ve got momentum on our side to restore a fair process where workers can be heard, and that’s what we’re going to do.”