Four Senate Republicans are effectively blocking their own party from seizing majority control of the federal agency charged with combating workplace discrimination and harassment, trade association lobbyists tell Bloomberg Law.
Time is running out in a busy election year for the Senate to approve President Donald Trump’s three picks to serve on the five-member Equal Employment Opportunity Commission, and business groups are now increasing the pressure on Capitol Hill in the hopes of eliminating the logjam and delivering a more employer-friendly EEOC.
But an intra-party divide between faith-based social conservatives and traditional business-minded Republicans threatens to preserve a Senate stalemate on the EEOC selections for at least the rest of 2018.
The small contingent of GOP senators is suspending the chamber’s consideration of Trump’s renomination of Chai Feldblum (D) for a fresh five-year term on the commission. They have expressed concerns over her history of championing gay rights, among other issues. The Senate’s Democratic minority won’t agree to a rapid vote on the other two EEOC nominees, both Republicans, unless Feldblum is included in a packaged deal.
And with Senate Majority Leader Mitch McConnell (R-Ky.) unwilling to devote 30 hours of floor time to debate each commission nominee, an agreement to advance Feldblum is needed to give Republicans their first EEOC majority in nine years.
The EEOC confirmation delay makes it harder for the federal government’s discrimination watchdog to address a handful of hot-button issues, such as harassment guidelines and equal pay reporting, until the GOP holdouts can agree to tolerate one polarizing Democrat in exchange for two new Republican members.
“I think it’s certainly unfortunate that we live in a climate where someone would put her on hold and really slow down the functioning of the commission,” David Lopez, the EEOC’s general counsel for most of the Obama administration, told Bloomberg Law. “Right now the commission is doing fine in terms of getting work done, but at the end of the day it’s important to make sure that you have a functioning commission so that you don’t stifle the commission’s mission of trying to eradicate employment discrimination.”
More than 500 days into the Trump administration, Democrats maintain a 2-1 edge on the panel. During that time, most of the EEOC’s daily investigations and litigation advanced as usual in the dozens of district and field offices away from Washington.
Republican nominees Janet Dhillon and Daniel Gade have been waiting for Senate confirmation votes since October. Sharon Fast Gustafson, Trump’s pick for EEOC general counsel, is also awaiting confirmation. It’s not certain if the Senate would consider the general counsel nominee at the same time as the commissioner nominees.
Charlotte Burrows is the other Democrat currently on the commission. Trump nominated Dhillon to chair the group, so she, Lipnic, and Gade would make up the GOP majority.
Hold Up Over Religious Freedom
Sen. Mike Lee (R-Utah) earlier this year placed a hold on the confirmation of Feldblum, who has served as commissioner since 2010. Lee has called Feldblum a “radical” for prioritizing sexual orientation and gender identity protections over religious freedom and traditional marriage.
Following fundraising and advocacy from religious groups such as the National Organization for Marriage, GOP Sens. Steve Daines (Mont.), James Lankford (Okla.), and Marco Rubio (Fla.) have now joined Lee in thwarting Feldblum’s advancement, according to trade association sources who all spoke on condition of anonymity.
The only likely short-term pathway for the Senate to green-light Dhillon and Gade in a crowded legislative calendar would come from merging their votes with Feldblum. Their packaged vote, under a bipartisan Senate procedure called unanimous consent, may be derailed unless the four Republicans allow a vote on Feldblum.
The business community’s mission is to make the case to the four Senate Republicans that their reservations about Feldblum should be outweighed by the necessity for a five-member commission to offer clarity on employer wellness plans, workplace harassment guidance, salary reporting rules, and new enforcement priorities.
“This is the 10th year of the Obama commission,” Michael Eastman, senior vice president of policy at the Center for Workplace Compliance in Washington, told Bloomberg Law. “Yes, Vicky Lipnic is the acting chair, but she doesn’t have the votes to do anything that would be the least bit controversial or to change policies or enforcement priorities if she wanted to.” Eastman works with the commission to help the agency understand employer concerns, but he doesn’t lobby for or against the nominees.
Sexual harassment guidance developed by the agency in 2017 has been pending at the White House Office of Management and Budget, apparently on hold until the Republican nominees are confirmed. The EEOC announced recently that it’s reconvening a task force on harassment in the workplace. The agency also has to decide what to do about a regulation limiting employee wellness plan incentives that has been put on hold by a federal judge.
Another factor is driving the EEOC advocacy of late: The religious right wants to replace Feldblum with a more mainstream Democrat, but employer representatives have built a rapport with her that they’re not ready to abandon. Several business sources said they appreciate Feldblum’s willingness to listen to their positions, even if they sometimes disagree with her interpretations of equal employment laws and policy priorities.
Lee Not Budging
None of the lobbyists involved in the EEOC personnel discussions were able to confidently handicap the path forward. Thus far, there is no evidence that any of the four holdouts are wavering.
“Sen. Lee still strongly opposes,” Conn Caroll, a spokesman for Lee, told Bloomberg Law via email. “He is not backing down on this.”
When approached on Capitol Hill, Daines declined to comment about Feldblum. Lankford confirmed he disagrees with Feldblum’s policy views but wouldn’t comment on how his hold has kept majority control away from his party.
“She has been pretty outspoken obviously in the Obama administration and trying to be able to push a set of policies that I don’t agree with, so I was surprised that the Trump administration renominated her,” Lankford told Bloomberg Law.
Representatives for Rubio didn’t respond to requests for comment.
Meanwhile, the White House, which has faced pressure from Lee to withdraw Feldblum, is also staying the course.
“We have no plans to change the nomination,” Lindsay Walters, a White House deputy press secretary, said in an email.
In the face of amplifying business support for the EEOC nominees to advance in tandem, faith-centered nonprofits such as the National Organization for Marriage will continue to pressure the four senators to hold the line.
“We’re hoping that the Republicans remain strong on this and do the right thing,” Brian Brown, president of NOM, told Bloomberg Law. “We’ll see, but right now, things look good.”
The EEOC declined to comment for this story.
Return to Process
Technically, the Senate could schedule individual votes on the nominees, starting with Dhillon for chair, Daniel for commissioner, and Gustafson for general counsel.
Individually trying to confirm the three EEOC commissioner designates would break from the clustered approach, which has regularly been used since the 1980s, said David Lewis, a Vanderbilt University political science professor and author of “The Politics of Presidential Appointments: Political Control and Bureaucratic Performance.”
“It’s not uncommon for these nominees to go through as a batch rather than one-by-one,” he told Bloomberg Law. “Usually the minority party will give concessions to get somebody of their choosing through.”
Confirmation as a group usually results in a win for both sides of the political spectrum, Lewis added.
The nominees, however, can remain in the confirmation queue for months to come. The GOP-controlled Senate has instead focused on confirming dozens of federal judges, whose appointments are for life.
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