Providing for Congressional Disapproval of the Rule Submitted By the Equal Employment Opportunity Commission Relating to ``Update of Commission's Conciliation Procedures''
Floor Speech
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Mr. SCOTT of Virginia. Madam Speaker, pursuant to section 7 of House Resolution 486, I call up the joint resolution (S.J. Res. 13) providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Equal Employment Opportunity Commission relating to ``Update of Commission's Conciliation Procedures'', and ask for its immediate consideration in the House.
The Clerk read the title of the joint resolution.
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Mr. SCOTT of Virginia. Res. 13.
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Mr. SCOTT of Virginia. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, I rise today in support of S.J. Res. 13, a Congressional Review Act resolution disapproving the Equal Employment Opportunity Commission, or EEOC, Conciliation Rule.
This resolution will help ensure fairness for those who bring forth charges of unlawful workplace discrimination.
When the EEOC has found that an employer likely violated the law, it is required under title VII of the Civil Rights Act of 1984 to engage in conciliation before filing a lawsuit. This conciliation process is meant to be an informal and confidential opportunity for parties to settle a charge of discrimination in lieu of going to court.
Unfortunately, in the final weeks of the Trump administration, the EEOC issued a final rule that imposed onerous new requirements on the conciliation process.
Under the new rule, the EEOC must provide an employer with a written summary of the facts and the nonprivileged information the EEOC relied on to determine that the employer violated the law. Notably, the rule requires the EEOC to expose the identities of workers or groups of workers for whom relief is being sought unless they proactively request anonymity, and their witnesses.
This new rule will put a thumb on the scale in favor of employers in cases where the EEOC found that they likely violated workers' civil rights. Specifically, the rule incentivizes employers to focus litigation on whether the EEOC failed to satisfy the rule's new requirements instead of whether the employer engaged in unlawful discrimination.
In fact, on settlement--settlements had been more likely since the Supreme Court ruled that this conciliation process should be informal, unlike the rule that was promulgated late in the Trump administration. This will allow unscrupulous employers to drag out the conciliation process, possibly for years--and even avoid accountability altogether-- by just litigating over whether the EEOC complied with the conciliation rule rather than correcting the discriminatory process.
The EEOC rule conflicts with the Supreme Court's 2015 decision in Mach Mining v. EEOC. It was a unanimous decision. It held that the EEOC must have the discretion to use whatever informal means of settlement are appropriate in each individual case. However, under the new rule, a rigid conciliation process will apply across the board, one-size-fits- all, in every case of workplace discrimination.
This solution will likely lead to increased retaliation against victims of discrimination and witnesses, as well as needless delays in justice for workers. We know that justice delayed is justice denied. This is why civil rights leaders and worker advocates across the country have called on Congress to pass this Congressional Review Act resolution and restore fairness for victims of workplace discrimination.
Madam Speaker, I include in the Record a Statement of Administrative Policy from the Biden administration in support of this resolution. Statement of Administration Policy S.J. Res. 13--A joint resolution for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Equal Employment Opportunity Commission relating to ``Update of Commission's Conciliation Procedures''--Sen. Murray, D-WA, and no cosponsors
The Administration supports Senate passage of Senate Joint Resolution 13 to nullify the Equal Employment Opportunity Commission's (EEOC) recently promulgated ``Update of Commission's Conciliation Procedures,'' which became effective on February 16, 2021, under the Congressional Review Act. The rule that S.J. Res. 13 would nullify imposed onerous and rigid new procedures on the EEOC's obligation to conciliate or ``settle'' meritorious claims of employment discrimination, that risks unduly delaying and diverting limited resources from agency efforts to investigate and resolve meritorious claims of employment discrimination. The rule increases the risk of retaliation by making it easier for employers to demand the identities of those with information about unlawful discrimination, which will likely- have a chilling effect on the willingness of victims and witnesses to come forward. S.J. Res. 13 would nullify the rule's unnecessary and burdensome standards that would likely result in increased charge backlogs, and lengthier charge investigation, resolution and litigation times. The resolution will also ensure that EEOC has the flexibility to tailor settlements to the facts and circumstances of each case, thus increasing the likelihood of voluntary compliance. The resolution will furthermore ensure that justice for workers subject to discrimination is not delayed, or potentially denied, due to costly and time-consuming collateral litigation.
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Mr. SCOTT of Virginia. Madam Speaker, I yield 2 minutes to the gentlewoman from Oregon (Ms. Bonamici), the chair of the Subcommittee on Civil Rights and Human Services, and cosponsor of the House version of this resolution.
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Mr. SCOTT of Virginia. Madam Speaker, I yield myself such time as I may consume.
Mr. Speaker, just to state on the question of whether or not the individuals can be revealed, identifying the aggrieved individuals must take place, but not if the individual or individuals have requested anonymity. That means you have to know that you are about to be revealed. You have to proactively request anonymity. If you haven't gone through those steps, then you will be revealed.
That is an unnecessary step. It puts people in unnecessary jeopardy, and I hope they would not subject that. It is not necessary. The EEOC has an obligation to do conciliation, but they need to do it on an individualized case, best aimed at settlement and based on an individual case, and reveal the information that is best for that purpose, and no more.
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Mr. SCOTT of Virginia. Madam Speaker, I am prepared to close, and I reserve the balance of my time.
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Mr. SCOTT of Virginia. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, it is our responsibility to reverse the EEOC's new conciliation rule. Before this harmful rule change, the EEOC's conciliation process was what it was meant to be, an informal, flexible, confidential opportunity to settle discrimination claims before going to court. That is what the Supreme Court ruled unanimously in 2015.
Now, the new conciliation rule is threatening to stack the process against workers by subjecting those who make discrimination claims to an increased risk of retaliation and allowing employers to hijack the process to focus on whether it failed to conciliate, not whether the employer violated the law.
Simply put, this is an unnecessary new regulation which will, at best, delay justice for victims of discrimination and, at worst, open the door for collateral litigation, adding potentially years to the process before ever reaching the merits of the discrimination claim.
That is why advocates of victims of discrimination support the resolution.
Madam Speaker, I include in the Record a letter from the Leadership Conference on Civil and Human Rights signed by 24 civil rights groups in support of the resolution. The Leadership Conference on Civil and Human Rights, Washington, DC, June 9, 2021. Re Support S.J. Res. 13, a Congressional Review Act Resolution of Disapproval to Protect Workers from a Harmful EEOC Rule
Dear Representative: The undersigned 24 civil and workers' rights organizations urge you to vote for S.J. Res. 13, a Congressional Review Act (CRA) resolution of disapproval to undo a January 14, 2021, Equal Employment Opportunity Commission (EEOC) final rule that threatens to harm working people seeking relief from discrimination and to impede the work of the EEOC.
The EEOC final rule made several changes to conciliation, the process by which the EEOC tries to settle a charge of workplace discrimination. Instead of ensuring that discrimination charges are resolved fairly, the EEOC's final rule imposes several new obligations and disclosures that:
Significantly weight the conciliation process in favor of employers;
Delay justice and increase the likelihood of harm to working people;
Divert scarce EEOC staff time and resources away from investigating discrimination; and
Contravene controlling U.S. Supreme Court precedent.
The Senate passed S.J. Res. 13 on May 19, 2021. If the House now passes this resolution, Congress could undo this harmful rule and restore the status quo with respect to the EEOC's procedures. A resolution of disapproval is an appropriate exercise of Congress's power in this case, because the CRA is the most expeditious and effective option for addressing the negative impacts of the EEOC's final rule.
The EEOC must be able to conduct its work efficiently in order to be effective in its mission to prevent and remedy workplace discrimination. This mission is even more critical in the middle of a global pandemic that continues to have severe economic repercussions for women, people of color, and other marginalized communities, including a heightened risk of job loss, health and safety hazards, and discrimination based on sex, race, age, and disability.
Individuals who experience discrimination on the job already face significant hurdles to seeking redress, including retaliation, lack of information about their rights, and lack of access to legal assistance. When an individual does file a charge of discrimination against their employer with the EEOC, the agency collects information and conducts an investigation. If the EEOC finds ``reasonable cause'' to believe employment discrimination has occurred, the parties are invited to participate in the conciliation process, which seeks to settle or resolve the charges of discrimination informally and confidentially, in lieu of filing a lawsuit. Title VII requires the EEOC to attempt resolution of charges informally before considering or proceeding with litigation, and the EEOC may only pursue litigation if conciliation has failed.
The final rule will only deepen the barriers working people face coming forward to report discrimination and obtain justice. It requires the EEOC to grant the employer access to details of the victim and witnesses' identity and allegations, escalating the risk of retaliation for workers. Claims of retaliation made up more than half of all charges filed at the EEOC in FY 2020, and fear of retaliation prevents many victims of discrimination from coming forward and many witnesses from being forthright--something that may be especially true during an economic crisis. The rule also requires the EEOC to disclose critical information concerning the EEOC's legal analysis of the case to employers, and employers only. In other words, the EEOC would be required to automatically tum over its case files to employers whom the agency believes to have acted unlawfully, but not to the working people who are seeking a remedy for the discrimination they faced. This practice would exacerbate resource and information inequities between the parties to the benefit of employers only. Although the proposed rule would allow disclosures to the charging party upon request, many working people who file charges are unrepresented by counsel and will not know to make such a request. The EEOC, whose mission is to prevent and remedy discrimination, should not, in its own procedural rules, disadvantage the very party seeking to remedy discrimination.
By imposing inflexible rules on the conciliation process, the EEOC final rule also flouts congressional intent and is inconsistent with Supreme Court precedent. In its unanimous 2015 decision Mach Mining, LLC v. EEOC, the Supreme Court explained that ``every aspect of Title VII's conciliation provision smacks of flexibility,'' which allows the EEOC to tailor its approach to conciliation in the way most appropriate in each case. Without flexibility, the EEOC will be forced to divert resources away from investigating and remedying workplace discrimination and put them toward satisfying the final rule's burdensome standards, resulting in increased delays at the expense of victims of discrimination.
In addition, the rules would saddle EEOC with wasteful collateral litigation attacking the conciliation process, prolonging harm to workers through increased delay. This tactic was prevalent before Mach Mining, and that case itself shows the potential impact: The workers in Mach Mining--women excluded from coal mining jobs due to sex discrimination-- were forced to wait nine years after the first charge was filed for relief, in part because of unmeritorious employer challenges to the conciliation process.
By invoking the CRA and passing a resolution of disapproval, Congress could quickly restore the status quo with respect to the EEOC's conciliation procedures, minimizing the harm to workers and eliminating the need for the EEOC to expend its scarce resources either undertaking rulemaking processes to rescind the conciliation rule or implementing the onerous new procedures in the final rule, and defending the sufficiency of the new conciliation process in collateral litigation by employers.
Importantly, application of the CRA to the final rule ensures that the EEOC would be prohibited from promulgating a ``substantially'' similar rule in the future that would hinder vigorous enforcement of federal workplace antidiscrimination laws. The final conciliation rule was both procedurally and substantively flawed, raising concerns about its integrity. As such, Congress's exercise of the CRA would be warranted here.
Accordingly, we urge you to support and vote for S.J. Res. 13, the CRA resolution of disapproval of the EEOC's final rule. Please contact Gaylynn Burroughs of The Leadership Conference on Civil and Human Rights at burroughs@civilrights.org, or Maya Raghu of the National Women's Law Center at mraghu@nwlc.org, if you have any questions. Thank you,
The Leadership Conference on Civil and Human Rights, National Women's Law Center, A Better Balance, AFL-CIO, American Association of University Women (AAUW), Anti- Defamation League, Asian Pacific American Labor Alliance, AFL-CIO, Bazelon Center for Mental Health Law, Center for American Progress, Equal Rights Advocates, Feminist Majority, Futures Without Violence, Institute for Women's Policy Research, National Action Network, National Association of Councils on Developmental Disablities, National Employment Law Project, National Organization for Women, National Partnership for Women & Families, National Workrights Institute, Public Citizen, Sikh Coalition, TIME'S UP Now, Women Employed, Workplace Fairness.
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Mr. SCOTT of Virginia. Madam Speaker, we cannot allow employers to drag out the conciliation process rather than be held accountable for violating workers' civil rights.
As I said at the beginning of this debate, justice delayed is justice denied. That is why I urge my colleagues to join me in voting for this resolution and taking a critical step to ensuring that those who suffer workplace discrimination can get timely and fair justice.
Madam Speaker, I thank the gentlewoman from Oregon (Ms. Bonamici) for working with me on the House version of the resolution.
I ask for the support of the House to pass the resolution to overturn the EEOC regulation, and I yield back the balance of my time.
Ms. JACKSON LEE. Madam Speaker, as a senior member of the Judiciary Committee, I rise in strong support of S.J. Res. 13, a Congressional Review Act (CRA) resolution of disapproval to undo an Equal Employment Opportunity Commission (EEOC) final rule issued January 14, 2021 that threatens to harm working people seeking relief from discrimination and to impede the work of the EEOC.
The EEOC final rule made several changes to conciliation, the process by which the EEOC tries to settle a charge of workplace discrimination, all of which harm employees.
Instead of ensuring that discrimination charges are resolved fairly, the EEOC's final rule imposes several new obligations and disclosures that:
1. Significantly weight the conciliation process in favor of employers;
2. Delay justice and increase the likelihood of harm to working people;
3. Divert scarce EEOC staff time and resources away from investigating discrimination; and
4. Contravene controlling U.S. Supreme Court precedent.
The Senate passed S.J. Res. 13 on May 19, 2021, and by following suit, the House can ensure this harmful rule is rescinded and the status quo ante is restored with respect to the EEOC's procedures.
The EEOC must be able to conduct its work efficiently in order to be effective in its mission to prevent and remedy workplace discrimination.
This mission is even more critical in the middle of a global pandemic that continues to have severe economic repercussions for women, people of color, and other marginalized communities, including a heightened risk of job loss, health and safety hazards, and discrimination based on sex, race, age, and disability.
Madam Speaker, individuals who experience discrimination on the job already face significant hurdles to seeking redress, including retaliation, lack of information about their rights, and lack of access to legal assistance.
When an individual does file a charge of discrimination against their employer with the EEOC, the agency collects information and conducts an investigation.
If the EEOC finds ``reasonable cause'' to believe employment discrimination has occurred, the parties are invited to participate in the conciliation process, which seeks to settle or resolve the charges of discrimination informally and confidentially, in lieu of filing a lawsuit.
Title VII requires the EEOC to attempt resolution of charges informally before considering or proceeding with litigation, and the EEOC may only pursue litigation if conciliation has failed.
The final rule will only deepen the barriers working people face coming forward to report discrimination and obtain justice by requiring the EEOC to grant the employer access to details of the victim and witnesses' identity and allegations, escalating the risk of retaliation for workers.
Claims of retaliation made up more than half of all charges filed at the EEOC in FY 2020, and fear of retaliation prevents many victims of discrimination from coming forward and many witnesses from being forthright--something that may be especially true during an economic crisis.
The rule also requires the EEOC to disclose critical information concerning the EEOC's legal analysis of the case to employers, and employers only.
In other words, the EEOC would be required to automatically turn over its case files to employers whom the agency believes to have acted unlawfully, but not to the working people who are seeking a remedy for the discrimination they faced.
This practice would exacerbate resource and information inequities between the parties to the benefit of employers only.
The EEOC, whose mission is to prevent and remedy discrimination, should not, in its own procedural rules, disadvantage the very party seeking to remedy discrimination.
By imposing inflexible rules on the conciliation process, the EEOC final rule also flouts congressional intent and is inconsistent with Supreme Court precedent.
In its unanimous 2015 decision Mach Mining, LLC v. EEOC, 575 U.S.__, 135 S. Ct. 1645, No. 13-1019 (2015), the Supreme Court stated that ``every aspect of Title VII's conciliation provision smacks of flexibility,'' which allows the EEOC to tailor its approach to conciliation in the way most appropriate in each case.
Without flexibility, the EEOC will be forced to divert resources away from investigating and remedying workplace discrimination and put them toward satisfying the final rule's burdensome standards, resulting in increased delays at the expense of victims of discrimination.
By invoking the CRA and passing a resolution of disapproval, Congress could quickly restore the status quo with respect to the EEOC's conciliation procedures, minimizing the harm to workers and eliminating the need for the EEOC to expend its scarce resources either undertaking rulemaking processes to rescind the conciliation rule or implementing the onerous new procedures in the final rule, and defending the sufficiency of the new conciliation process in collateral litigation by employers.
In addition, application of the CRA to the final rule ensures that the EEOC would be prohibited from promulgating a ``substantially'' similar rule in the future that would hinder vigorous enforcement of federal workplace antidiscrimination laws.
For all of these reasons, I strongly support S.J. Res. 13, the CRA resolution of disapproval of the EEOC's final rule and urge all Members to join me in voting for its passage.
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