After nearly 3 years without a head attorney, the EEOC has finally sworn in Sharon Gustafson as its new General Counsel. Will the first woman to hold the seat mean stronger protections for women facing gender discrimination, sexual harassment, and pregnancy discrimination? Or will LGBT advocates’ concerns prove true?
In this blog post, I will discuss the appointment of Sharon Fast Gustafson as General Counsel for the U.S. Equal Employment Opportunity Commission (EEOC). I will explain the role of the General Counsel, and how her appointment could affect the agency. I will also discuss the fact that Gustafson is the first woman to have held the seat, and what that could mean for future sexual discrimination cases.
The EEOC’s General Counsel is in charge of the agency’s litigation program. The officer is appointed by the President and confirmed by the U.S. Senate to a 4-year term. But the EEOC has been without its head of litigation since December 2016, when David Lopez resigned.
At the same time, the EEOC has also faced vacancies among its five commissioners. These commissioners oversee the policies, finances, and organizational development of the agency. The EEOC commission is intentionally bipartisan. Three commissioners are selected from the President’s political party and two from the opposition. When Commissioner Chai Feldblum’s term expired on January 3, 2019, there were only two commissioners left. That meant the agency as a whole has been operating without guidance or leadership for most of the year.
Then, on August 2, 2019, the U.S. Senate confirmed Democrat Charlotte Burrows for her second term as Commissioner (through July 1, 2023), and confirmed Sharon Fast Gustafson as the agency’s General Counsel. She was sworn in to the role on August 8, 2019, promising to uphold the charge of the agency to advance equal employment opportunity in the American workplace. In a statement issued by the EEOC, Gustafson said,
“My own experience so far in employment discrimination matters has not been to sit in a high seat, pulling the levers of power. Rather, I have been a solo lawyer most often representing the employee of modest means or the small business employer. My seat has been in a mediation room, trying to invoke the agency’s remedies to help someone get his job back, to get compensation for a wrongful termination, or to preserve the reputation of an employer wrongly accused. I think of my work as having been retail, street-level civil rights litigation. I look forward to using my decades of experience in employment law to conduct the litigation of the EEOC. My goal is to work with the EEOC’s career staff to prevent illegal discrimination in the workplace and to remedy it where it has occurred.”
Gustafson’s confirmation is a historical moment. She is the first woman to hold the position of General Counsel. All three of the currently seated commissioners are women as well. This could imply that women facing gender discrimination, sexual harassment, or pregnancy discrimination at work may find a more sympathetic ear within the EEOC leadership.
That does appear to be at least partially true in Gustafson’s case. Prior to her confirmation, she worked for over 20 years as a solo employment attorney, representing employees and small businesses in employment cases and before the EEOC. She was also the attorney for Peggy Young, who took a pregnancy discrimination case all the way to the U.S. Supreme Court in 2015. Ms. Young had asked for pregnancy-related accommodations when her doctor recommended she limit how much weight she lifted. Her employer, UPS, refused those accommodations, which meant that Ms. Young lost her employee medical coverage at a time when she needed it most. Through Gustafson’s advocacy, the U.S. Supreme Court ruled that an employer is required to provide the same reasonable accommodations to pregnant women as they would any other employee with similar medical restrictions.
But not everyone is happy about Sharon Gustafson stepping into the role of EEOC General Counsel. Prior to her confirmation, a coalition of civil and human rights organizations wrote to the Senate Committee on Health, Education, Labor, and Pensions with concerns over how she will treat the rights of LGBT workers who file complaints with the EEOC. The Trump Administration’s treatment of gay and Trans* citizens has been checkered at best. While the EEOC has maintained its policy that Title VII of the federal Civil Rights Act protects against sexual orientation discrimination, the Department of Justice has argued to the Supreme Court that the law doesn’t apply to the rights of Trans* worker Aimee Stevens. The National Women’s Law Center and other advocacy groups are concerned that under Gustafson’s leadership the EEOC will fall short of “faithfully and robustly enforc[ing] civil rights laws and protect[ing] these vulnerable communities from unlawful discrimination.”
With Gustafson and Burrows’s confirmations, the EEOC will once again have the ability to create and modify policies and procedures for the agency. Given the civil rights groups’ concerns, it remains to be seen if these new changes will be to the benefit of women and LGBT workers, or if the EEOC will go the way of other agencies within the Trump administration, and away from underprivileged citizens across the country.
At Eisenberg & Baum, LLP, our gender discrimination attorneys make it our job to stay on top of changes in the law. We know how to navigate the landscape of sexual orientation discrimination and gender identity discrimination. If you are gay or transgender and looking for help ending discrimination at work, contact us today to schedule a free consultation.