As a second Trump administration approaches, we’re running out of time to confirm as many federal judges as possible to provide a check on his presidential power and curb his stated policy priorities.
There are 40 federal judicial vacancies and 16 nominations before the Senate right now—as our civil rights hang in the balance, take action now!
President Trump has nominated Daniel M. Gade, a combat veteran and former assistant professor at the United States Military Academy, to be a commissioner at the Equal Employment Opportunity Commission (EEOC). The EEOC is one of the key federal agencies charged with enforcing civil rights laws against workplace discrimination. As a commissioner, Gade would help guide the agency’s enforcement efforts at a critical time when workplace protections and civil rights are under attack by the Administration and Congress.
This Tuesday (tomorrow) the Senate Health, Education, Labor and Pensions (HELP) Committee will hold a joint confirmation hearing for Gade, Janet Dhillon — nominee for EEOC chair — and another executive branch nominee. It’s likely that this packed hearing will limit senators’ ability to carefully probe his record, and determine whether he’s fit for the job. This raises significant concerns, because there’s a lot we don’t know about Gade’s views on critical employment discrimination issues. Does he support pay data collection, a vital tool for uncovering pay discrimination? Does he agree with the EEOC’s current position that discrimination on the basis of sexual orientation is sex discrimination?
The EEOC plays a key role in enforcing employment discrimination law, so it’s vital that all of its commissioners are deeply committed to enforcing the law—workers are counting on them. Gade’s record raises some significant questions and concerns about whether he should be confirmed to this important position. Here’s five things you should know:
In the past 20 years, only one of sixteen members of the EEOC has not been a lawyer. It’s understandably rare to be charged with the responsibility of enforcing our nation’s employment discrimination laws without a legal background. Most importantly, although Gade has some government policy experience (he served on the Domestic Policy Council in the George W. Bush White House, and on the National Council on Disability), he doesn’t have any experience enforcing antidiscrimination laws, and he’s being nominated to serve at an agency whose mission is interpretation and enforcement of employment discrimination laws. In fact, he doesn’t have any apparent experience working on issues related to employment discrimination at all. If you have no experience with employment discrimination law, how can you be adequately prepared to serve on one of most important civil rights enforcement bodies in the country?
The Trump Administration has recently mounted a sustained attack on equal pay. In March, Trump signed into law a bill that rolled back the Obama fair pay and safe workplace executive order. Then, last month, the Administration stayed the EEO-1 equal pay data collection initiative that required large companies to confidentially report information about what they pay their employees by job category, sex, race, and ethnicity to the EEOC. The equal pay data collection would have been a critical tool to help identify pay discrimination, improve enforcement of pay discrimination laws, and increase voluntary employer compliance with those laws.
Now it’s up to the EEOC to figure out a path forward on the equal pay data collection, and it’s no coincidence that Trump is trying to install two new commissioners. But we don’t know where Gade stands on this vital issue. Tomorrow Gade must state that he is willing to commit to pay data collection by the EEOC. We’ll be watching his hearing to see if he makes this commitment – if he doesn’t, he shouldn’t be confirmed.
Gade is a combat veteran with a disability. He believes the Veterans Affairs (VA) benefits system needs to be reformed and has frequently written about this (Iraq Veteran, Now a West Point Professor, Seeks to Rein In Disability Pay). He seems to believe that too many veterans are receiving disability benefits when they could be working, and in one of his papers, he stated “The definition of “disability” in the VA system is such that most of these veterans are not in fact ‘disabled’ in the way that most Americans understand the term.” Gade argues that wounded veterans face tradeoffs because of the current benefits system that incentivizes them to choose to categorize themselves as disabled and receive benefits rather than work. As a proposed fix, Gade co-founded the Independence Project, a privately-funded experiment that will give up-front lump-sum payments to disabled veterans, with the stated goal of creating a public-education and policy reform campaign to reform the Veterans Affairs disability programs to be “healthier and more fiscally sustainable.”
Gade’s work within the disability community, including on the National Council on Disability, means that he’s conscious of the discrimination that people with disabilities face in the workforce. However, his position on disability benefits in the VA deserves a closer look if it means he’s skeptical about what constitutes a disability under the Americans with Disabilities Act (ADA). If employers refuse to provide accommodations to workers with disabilities because they don’t believe their employees are sufficiently disabled, would Gade side with employers?
The military blog BlackFive frequently featured information about Gade’s recovery from his wartime injury. Gade appears to have commented regularly on the site with his full name, with one comment linking to one of his personal, verified social media accounts. In 2011, a commenter by the name of “Daniel Gade,” who appears to be the same Gade as the EEOC nominee, commented on a BlackFive post opposed to allowing women to serve in combat roles, “Women in combat units – Oh! Hell! No!,” The original post argues that women have nothing to add to the role, with statements like, “Where is the vital gap in our combat repertoire that requires a feminine touch?” The post states that menstruation also disqualifies women from the roles, stating “the need for monthly maintenance is another show stopper,” and, “you just threw a healthy, breeding age, female into a pack of dogs with an established, yet always evolving hierarchy.”
The comments by “Daniel Gade” on this post argued that women serving in combat would harm military performance,: “Don’t forget, though, that the standards WILL be decreased so that the graduation rates of various schools remain the same as they are now. […] The idea of women in that environment is laughable.” And, “Does anyone other than the commissioners of this silly commission believe that adding a few women to the sand bag preparation team at the OP would have really helped? Or that the need for those women to get combat experience would outweigh the increased chances for many or all of the soldiers to go home in rubberized sacks?”
Any belief that women are fundamentally unfit for certain jobs is deeply worrisome, and has implications for his work at the EEOC. Women face significant barriers to entry to jobs traditionally dominated by men — including physically demanding jobs comparable to combat– including overt discrimination, sexual harassment, and being discouraged from applying to such jobs in the first place. If Gade in fact made these comments, or agrees with them, how will these attitudes affect the EEOC’s mandate to promote equal employment opportunity for women? Someone who is charged with enforcing the laws against sex discrimination shouldn’t believe that women are less capable.
The EEOC, which is tasked with interpreting and enforcing Title VII, has decided that discrimination on the basis of sexual orientation or gender identity is prohibited sex discrimination under Title VII and has continued to advocate this position in court, even in this Administration. But this interpretation is under attack by the White House and the Justice Department. The Second Circuit Court of Appeals is considering that question in a pending case in which the EEOC and Department of Justice filed separate briefs taking opposing positions. (And now the Supreme Court has been asked to grant review of another case considering the same issue).
President Trump’s ban on transgender troops in the military has raised the issue of gender identity discrimination in the military context. Does Gade agree with the President’s ban? And if he does, will he undermine the EEOC’s current position that the law protects LGBTQ people from employment discrimination?
The Senate HELP Committee must closely examine Gade’s record and past statements to determine whether he is prepared to enforce our nation’s employment discrimination laws, particularly laws that prohibit disability discrimination and sex discrimination, including pay discrimination and sexual orientation and gender identity discrimination. If Gade falls short in these commitments, he shouldn’t be confirmed.
