Kavanaugh Replacement Nominee Heads Agency Stalling Sexual Harassment Workplace Guidance

The federal agency managed by Neomi Rao, the nominee to replace Brett Kavanaugh on the D.C. Circuit Court of Appeals, has been stalling a critical employer guidance on workplace sexual harassment for over a year.

Rao, who is the director of the Office of Information and Regulatory Affairs, is already reported to be on the Trump administration’s shortlist for a future Supreme Court position, should one open up, and faces senators in confirmation hearings on Tuesday.

OIRA is a division of the Office of Management and Budget, which evaluates regulations from across the federal government. In November 2017, just a month after the Harvey Weinstein revelations kicked off the #MeToo movement, the Equal Employment Opportunity Commission, an independent agency, delivered the new harassment guidelines to OIRA. The federal government hasn’t updated its workplace guidance, which helps set human resources policy across the country, since the 1990s. A January 2017 proposed draft, issued just before President Donald Trump’s inauguration, was the product of a bipartisan task force and subject to months of public comment. But it has fallen into a black hole under Rao.

Recently, writings of Rao’s while at Yale University have been unearthed. “A good way to avoid a potential date rape is to stay reasonably sober,” Rao wrote in 1994. “And if she drinks to the point where she can no longer choose, well, getting to that point was part of her choice. … Implying that a drunk woman has no control of her actions, but that a drunk man does strips women of all moral responsibility.”

The cache of writings included an essay from 1994 in which she stated, “Trendy political movements have only recently added sexuality to the standard checklist of traits requiring tolerance.” Rao added: “No one knows whether sexuality is a biological phenomenon or a social construct. The truth may lie somewhere in the middle.” In a separate piece, she chided “homosexuals” for wanting “to redefine marriage and parenthood.”

Now, as OIRA administrator, Rao’s office has sat on the most important federal response to the #MeToo movement, which would clarify to workers and employers what the EEOC considers workplace sexual harassment. “I absolutely think it’s relevant to considering her record when it comes to civil rights,” said Maya Raghu, director of Workplace Equality and senior counsel at the National Women’s Law Center.

Debra Katz, the sexual harassment lawyer who represented Christine Blasey Ford in her allegations against Kavanaugh last year, told Bloomberg Law last June, “In a moment where we have a huge cultural and societal reckoning, this administration is showing it’s not going to take a leadership role in preventing sexual harassment.”

In a statement to The Intercept, EEOC spokesperson Kimberly Smith-Brown described a “normal course” of back and forth on the content of rules and regulations with OIRA. “At this point, the ball is back in our hands here at the EEOC, and we’re evaluating it internally,” Smith-Brown said.

But experts in the regulatory process claim that the situation is unusual. As an independent agency, the EEOC is not required to send guidance to OIRA for review; the agency submitted it voluntarily. The normal timeline for guidance review is 90 days; the EEOC guidance is at 15 months and counting. And the guidance does not appear on any list of documents under review at OIRA, making it impossible for stakeholders and the public to track its status.

“You can’t find it on the website,” said Amit Narang, a regulatory policy advocate at Public Citizen. “They are using OIRA to keep this stuck.”

The Trump administration, as part of its deregulatory agenda, has waged a kind of war on agency guidance, which attempt to clarify or interpret statutes for regulated entities without having the force of law. Rao herself has said that the administration wants to limit agency guidance documents, saying that it relies on a “thinner constitutionality” standard, and “if there’s a guidance document that imposes significant costs — it’s economically significant, or otherwise significant from a policy perspective — we should be taking a look at that.”

The EEOC has not updated its sexual harassment guidance for employers since the 1990s. According to a 2016 task force report co-chaired by Democratic commissioner Chai Feldblum and Republican Victoria Lipnic, nearly one-third of the 90,000 charges received by the EEOC in fiscal year 2015 involved allegations of workplace harassment. Charges have spiked since then, as the #MeToo movement has only widened awareness of the realities of sexual misconduct in the workplace. The agency unanimously approved the guidance on a bipartisan basis when sending it to OIRA.

Feldblum’s proposed re-nomination to the commission was seen at one point as a major stumbling block in getting the guidance approved. Sen. Mike Lee, R-Utah, put a hold on the nomination of Feldblum, who is openly gay, for another term, blocking two Republican nominees for EEOC in the process. Feldblum eventually chose to exit the EEOC at the end of 2018, leaving the agency with only two of five commissioners, not enough for a quorum.

Even with the political dispute out of the way, the guidance has been stalled at OIRA under Rao’s leadership.

The guidance accomplishes what conservatives often regard as an important function: providing clarity to businesses. Consolidating several earlier guidance documents under a single legal analysis, the EEOC lays out what types of harassing workplace conduct it would consider as violating federal equal employment opportunity and anti-discrimination statutes. “An updated guidance would be important for employers, so they know what the law is,” said Raghu, of the National Women’s Law Center. “It’s especially important for small businesses, many of whom don’t have HR directors or legal counsel to interpret the law for them.”

While not legally binding, EEOC defines in the guidance when it believes an employer is specifically liable, how it can limit liability through prevention and prompt corrective action, and what protected classes are covered.

The latter appears to be the sticking point with the administration. The guidance included gender identity and sexual orientation as covered under the interpretation of sex-based harassment. This has been EEOC policy since at least 2012, but it diverts sharply from the Justice Department’s views throughout the Trump presidency.

In October 2017, former Attorney General Jeff Sessions prohibited transgender people from protections against workplace discrimination under Title VII of the Civil Rights Act, the same statute EEOC cites in its guidance. Sessions’s Justice Department even filed legal briefs asking an appeals court and then the Supreme Court to reaffirm this interpretation of Title VII, in a case involving the EEOC.

Justice Department spokesperson Andrew Hudson referred questions about the updated guidance to the Office of Management and Budget, which did not respond to The Intercept’s queries. Hudson did note that the Justice Department and the EEOC recently signed a memorandum of understanding to work together on addressing workplace harassment within state and local governments. The MOU elided the sexual orientation issue.

Sessions is no longer attorney general, but the influence of social conservatives within the Trump administration remains strong. The Supreme Court recently allowed the administration to temporarily ban transgender service members from the military.

Rao’s inflammatory college writings have put her under the microscope for bias against LGBTQ Americans and a cavalier attitude toward sexual assault, which critics believe she will carry into her judgeship. People for the American Way is rallying opposition to Rao’s confirmation, saying in a petition that “Neomi Rao’s bigoted views have no place on the federal bench.”

More broadly, as OIRA administrator, Rao has been known as the “deregulation queen,” proudly blocking any number of regulatory measures. Questions of administrative law generally go to the D.C. Circuit, where Rao would sit if she were confirmed. “There are a whole host of rules that she has blocked that have a significant negative impact on a lot of people, especially vulnerable people,” said Raghu. Rao’s confirmation hearing is scheduled for February 5.