Sen. Patty Murray, D-Wash., is one of the lawmakers who introduced a resolution to undo the rule.

Sen. Patty Murray, D-Wash., is one of the lawmakers who introduced a resolution to undo the rule. Susan Walsh/AP

Democrats Seek to Undo Trump EEOC Rule Using Congressional Review Act

This is the first attempted use of the act during the Biden administration.

On Tuesday, Democrats introduced their first resolution to undo a last-minute Trump administration regulation using special legislative authority, as the deadline to use the authority approaches.

Rep. Robert “Bobby” Scott, D-Va., chairman of the House Education and Labor Committee, and Sen. Patty Murray, D-Wash., chairwoman of the Senate Health, Education, Labor, and Pensions Committee, filed resolutions to undo an Equal Employment Opportunity Commission rule that they argue gives employers an unfair advantage in settling claims. The lawmakers have this authority under the Congressional Review Act.

“When workers bring credible claims of discrimination to the EEOC, they deserve a fair process that protects their rights and shields them from retaliation,” Scott said. “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 EEOC voted 3-2, along party lines, to finalize the rule on January 14 (six days before President Biden’s inauguration) and it took effect on February 16, “over strong objections from the civil rights community,” said a press release from the lawmakers.

“The ‘conciliation rule’ harms workers and undercuts enforcement of workplace civil rights laws,” EEOC Spokesperson Christine Nazer said. “Overturning this rule through the Congressional Review Act would strengthen the federal government’s ability to protect civil rights.”

Another last minute or “midnight” regulation at the EEOC ended its long-time practice of giving official time to union officials when they work on discrimination cases for their colleagues. This controversial rule was caught up in the regulatory freeze the Biden administration issued on January 20.

Under the Congressional Review Act, members of Congress have until roughly April 4 to introduce a resolution to undo specific regulations issued between August 21, 2020, and January 3, 2021. Separately, the Senate has until sometime in mid-May to use special fast-track procedures that allow for a simple majority to pass a resolution. The specific deadlines are contingent upon how often Congress meets from now until then.

There was much talk about using the Congressional Review Act after the Democrats took back the Senate in January, but then it slowed. Regulation experts told Government Executive earlier this week that the other demands Congress has faced since January 20––such as Cabinet confirmations, passage of the American Rescue Plan and impeachment hearings–– have taken up lawmakers’ time. 

Members from The George Washington University’s Regulatory Studies Center published a report in Brookings on Wednesday about lawmakers’ use of the act, which has been around since 1996. 

“Our research has shown that Democrats, like Republicans, have a history of introducing disapproval resolutions under the [Congressional Review Act], which “unsettles the conventional wisdom” that only Republicans use it, they wrote. “Whether Democrats choose to undo particular Trump rules using this tool or not, our work suggests that they are likely to turn to the [Congressional Review Act] in the future.” 

Besides the act, the Biden administration has been working to prevent or undo rule changes from the Trump administration (which favored deregulation) by issuing the “freeze” memo on day one for regulations that hadn’t taken effect yet, rescinding relevant executive orders, proposing new rules via the Administrative Procedures Act process and working through the courts for regulations that have been challenged.