Trump Sued Over ‘One Reg In, Two Out’ Executive Order

Whether order applies to recent EEOC guidance is yet to be determined

By Allen Smith, J.D. Feb 14, 2017
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​Another executive order from President Donald Trump is under fire—this time the Jan. 30 order that directs federal agencies to repeal two federal regulations for every new rule they issue.

Management attorneys are debating this executive order's impact on the Equal Employment Opportunity Commission (EEOC)—in particular, the commission's Jan. 10 proposed enforcement guidance on unlawful harassment. But they agree that, whether the EEOC officially issues the guidance on unlawful harassment or not, the document is still a good tool for employers to use.

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"Employers and HR professionals should realize that the guidance clearly identifies the EEOC's outlook regarding the state of the law concerning harassment. The EEOC will enforce the law consistent with what is in this guidance," said Randall Coffey, an attorney with Fisher Phillips in Kansas City, Mo. "As such, the guidance provides HR professionals charged with dealing with these issues a terrific outline of the legal standards the EEOC will use to judge employer responses to alleged harassment."

Meanwhile, Public Citizen, the Natural Resources Defense Council and the Communications Workers of America (CWA) alleged in a Feb. 8 lawsuit that federal agencies cannot lawfully comply with the president's order because doing so would violate the statutes under which the agencies operate and the Administrative Procedure Act (APA). The APA prohibits regulation that is arbitrary or in violation of the law.

Public Citizen President Robert Weissman said in a news release that "if implemented, the order would result in lasting damage to our government's ability to save lives, protect our environment, police Wall Street, keep consumers safe and fight discrimination. By irrationally directing agencies to consider costs but not benefits of new rules, it would fundamentally change our government's role from one of protecting the public to protecting corporate profits."

CWA President Chris Shelton said, "It is unbelievable that the Trump administration is demanding that workers trade off one set of job health and safety protections in order to get protection from another equally dangerous condition. This order means that the asbestos workplace standard, for example, could be discarded in order to adopt safeguards for nurses from infectious diseases in their workplaces. This violates the mission of the Occupational Safety and Health Administration to protect workers' safety and health. It also violates common sense."

Prudence and Cutting Costs

The executive order states, "It is the policy of the executive branch to be prudent and financially responsible in the expenditure of funds, from both public and private sources. In addition to the management of the direct expenditure of taxpayer dollars through the budgeting process, it is essential to manage the costs associated with the governmental imposition of private expenditures required to comply with federal regulations. Toward that end, it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process."

EEOC Acting Chair Victoria Lipnic has said the new EEO-1 form that requires companies to report pay data, effective March 2018, fits within Trump's order to rethink regulations that are on the books, according to Law360, a LexisNexis Company that provides news on employment law.

Case-by-Case Review of Guidance

But it may be that guidance will be treated differently.

A spokeswoman for the EEOC told SHRM Online, "We are studying the executive order and how it applies to the EEOC and the draft harassment guidance. Therefore, we don't have any comment at this time."

The proposed guidance on harassment appears to fall within the definition of regulation or rule, as these terms are used in the executive order, Coffey said.

However, "new significant guidance or interpretive documents will be addressed on a case-by-case basis," he added, citing the Feb. 2 interim guidance relating to the executive order that was issued by the Office of Information and Regulatory Affairs at the White House. "It seems likely to me that the EEOC's new proposed enforcement guidance on unlawful harassment would pass muster here, particularly since it is largely a restatement of existing law, consolidates several previously issued guidance statements from EEOC, and does not impose any additional cost" on employers or society at large, Coffey said. 

However, John Bagyi, an attorney with Bond, Schoeneck & King in Albany, N.Y., predicted that the EEOC will address the executive order's requirements when it publishes its final enforcement guidance after the close of the comment period, if it decides to go forward with the guidance. In his view, "if the EEOC chooses to finalize this Obama-era guidance, which it could choose not to do, it will also need to identify two other regulations it will rescind."

While the executive order does not apply to independent agencies, the EEOC is not considered an independent agency for regulatory review purposes, said Michael Eastman, vice president of public policy with the Equal Employment Advisory Council (EEAC) in Washington, D.C. The EEAC provides guidance to member companies on complying with equal employment opportunity and affirmative action obligations.

The EEOC has extended the comment period on the enforcement guidance on unlawful harassment to March 21. "The EEOC did not publicly announce why they have extended the comment period for the guidance," he noted. "However, the extension appears to be consistent with the Jan. 20, 2017, memorandum from White House Chief of Staff Reince Priebus calling for a 60-day regulatory freeze, pending review." Eastman said that the EEOC's extension probably was not based on the executive order and that if the executive order impacts the guidance, then that will be announced later.

Useful Tool for Employers

"Even if the proposed guidance is not adopted formally, there is a still a strong likelihood that the EEOC will informally judge a harassment charge filed against your organization with an eye toward whether the company met the standards proposed by the guidance," agreed Angela Cummings, an attorney with FordHarrison in Charlotte, N.C.

[SHRM members-only HR Q&A: Sexual Harassment: What are the different types of sexual harassment?]

In all likelihood, the EEOC will issue its updated enforcement guidance without significant changes to the proposed guidance, predicted Jeff Beemer, an attorney with Dickinson Wright in Nashville, Tenn. "Now is the time for HR professionals to make sure that their anti-harassment policies and procedures are consistent with the proposed enforcement guidance," he said.

The harassment guidance's usefulness may be considered an argument against the "one reg in, two out" executive order applying to guidance documents. "I don't think the executive order applies to the EEOC's harassment guidelines," said Don Livingston, an attorney with Akin Gump in Washington, D.C., and former general counsel with the EEOC. "The EEOC's guidelines, instead of being binding, merely inform the public on how the EEOC will interpret the anti-harassment provisions in the laws that the EEOC enforces." 

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