In late May, the Trump administration released its detailed FY2018 budget, which proposes a $2 billion (20%) cut to the funding for the Department of Labor (DOL). While these initial forays into the federal government budgetary process are often described as “dead on arrival,” presidents’ budget proposals can provide a glimpse into administrations’ policy priorities, and in that way, often act as the “opening bid” in the negotiations to fund the government. While all of these characterizations are still likely true in this case, because both houses of Congress and the White House are in Republican control, the president’s FY18 proposal may be a bit more significant this time around.
Most of the cuts to DOL’s budget would be achieved through the elimination or reduction of grant programs and training programs, but one of the more interesting cuts from a policy standpoint is the administration’s proposal to merge the Equal Employment Opportunity Commission (EEOC) with the DOL’s Office of Federal Contract Compliance Programs (OFCCP). This proposal is consistent with the administration’s effort to trim the size of the federal government; however, it isn’t exactly a new idea. For example, the Heritage Foundation has been a vocal advocate of eliminating the OFCCP – an idea that former Heritage Foundation officials may have brought with them to new positions within the administration.
As might be expected, this proposed merger of EEOC/OFCCP has caused quite an uproar in D.C. In response to the proposal, a coalition of 73 civil rights organizations sent a letter to Secretary of Labor Alex Acosta and Office of Management and Budget Director Mick Mulvaney voicing their opposition. The letter argues that combining both agencies will undermine their anti-discrimination (EEOC) and affirmative action and diversity (OFCCP) missions. Signees include the AFL-CIO, the ACLU, AFSCME, the Center for American Progress, CWA, Human Rights Campaign, the Leadership Conference on Civil Rights, the NAACP, and the National Women’s Law Center.
So far, no similar letters have been sent by the business community, although the U.S. Chamber of Commerce voiced its opposition at a House hearing on the EEOC in May. Other members from the business community have argued in published reports that a merged agency will make life more difficult for employers by creating more uncertainty and combining the worst aspects of both agencies, such as providing the EEOC with debarment authority.
Secretary Acosta defended the merger at a hearing before a House appropriations subcommittee on June 7. Secretary Acosta noted the savings achieved by such a merger and that tough choices needed to be made, but also insisted that there would be no decrease in enforcement efforts. Democrats at the hearing were quite vocal in their opposition to the merger, while Republicans generally remained quiet.
In response to a question about the rescission of the Fair Pay and Safe Workplaces executive order and its implementing regulations, Secretary Acosta offered up the OFCCP as a backstop to protect the labor and employment rights of federal contract workers. This was a particularly interesting response since it is unclear as to how the OFCCP would continue to operate under the consolidation proposal.
Mechanically speaking, Secretary Acosta acknowledged during the hearing that a merger of EEOC and OFCCP would require not just a redrafting of Executive Order 11246, but also legislative changes. Successfully amending federal discrimination law, such as the Rehabilitation Act, will no doubt be an enormous task, especially given the opposition to the proposal from the civil rights and contracting communities. It is doubtful that the administration could garner enough political support for the merger, and even if members of the House or Senate might think the proposal worthy, they may be reluctant to open up for amendment the long-established civil rights laws. Moreover, what would a redraft of Executive Order 11246 look like? Would the administration retain the LGBT and whistle-blower protections that were included by President Obama?
The next stop for the proposal will be another public appearance by Acosta, this time before Senate appropriators. Then Congressional appropriators will convene and offer their own proposals. And remember: government funding runs out on September 30 and Congress goes home for the entire month of August. Merging EEOC and OFCCP will be a lot to accomplish in little time.