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The Senate Health Education Labor and Pensions (HELP) Committee will soon vote on the nomination of Sharon Gustafson, the Trump Administration nominee to be General Counsel (GC) of the Equal Employment Opportunity Commission (EEOC).
During her confirmation hearing last week, Gustafson refused to give the committee members and the rest of us watching at home important commitments that she will follow the law and robustly enforce the rights of vulnerable workers if she is confirmed.
Her scant record and lack of government or public service leaves us with an incomplete picture of the way in which she will run the EEOC General Counsel’s office – the office tasked with litigating cases and enforcing the law to protect all of us from workplace discrimination. Apart from a few years at a large law firm, Gustafson has been a solo practitioner of employment discrimination law in Virginia for the last 20 years. Gustafson has represented a number of workers challenging employment discrimination, notably including former UPS driver Peggy Young in case that resulted in important wins for pregnant workers at the Supreme Court. However, Gustafson has never run a large office, much less overseen thousands of attorneys in offices throughout the country.
Gustafson’s evasive hearing responses also leave us with serious concerns about her position on key issues, like whether LGBTQ workers are protected from discrimination based on sexual orientation or gender identity, and whether discrimination or retaliation against women who chose to end a pregnancy, or consider doing so, is prohibited by Title VII.
Only 24 hours before the scheduled vote on her nomination, the committee received her written responses to follow-up questions meant to clarify her views. Between what we could glean from her hearing responses and to her answers to the questions for the record (QFRs), we have serious concerns about her positions and how those positions will influence who gets the protection of the law. Among the most troubling responses were her lack of clarity as to whether the law protects women from discrimination as a result of their reproductive health choices, and her unwillingness to commit to protecting the rights of LGBTQ individuals from discrimination under Title VII.
NWLC joined a coalition letter expressing reservations and urging the Senate to ensure that the General Counsel of the EEOC will faithfully and robustly enforce civil rights laws and protect these vulnerable communities from unlawful discrimination. We are deeply concerned that Ms. Gustafson has not yet made this basic commitment and here’s why:
At her hearing, Gustafson committed only to uphold the law generally, no matter what the laws are. This means that when the laws are written to protect people from discrimination, she will enforce them. But it also means that if the laws are interpreted or amended to exclude people from protections, she will accept those exclusions. For instance, in the QFRs she was asked point blank: Do you agree that sexual orientation discrimination is a form of sex discrimination? That denying employees access to the restroom matching their gender identity is sex discrimination? That discrimination against an individual who is transgender is a form of sex discrimination? Time and time again she repeated the same carefully crafted response – that it wasn’t possible for her to give a definitive answer because the law is in flux, and that it’s for the Supreme Court or Congress to clarify the law.
This is a damaging, problematic and downright dangerous position to take, especially right now. The EEOC, which is tasked with interpreting and enforcing Title VII, takes the position that discrimination on the basis of sexual orientation or gender identity is prohibited sex discrimination under Title VII, and several federal courts have agreed. The EEOC has continued to advocate this position in court, even as the current Administration, through the Department of Justice (DOJ), actively attacks and undermines it. In a recent case before the Second Circuit Court of Appeals, DOJ filed an amicus brief opposing the EEOC’s position, using outdated and homophobic beliefs to underscore its argument. The Second Circuit, in an en banc decision, agreed with the EEOC’s position and ruled that discrimination based on sexual orientation is sex discrimination prohibited by Title VII.
But the EEOC’s position that sexual orientation discrimination is a form of sex discrimination will continue to come under fire; it’s in an especially precarious place, given that the recent EEOC commissioner nominees, Janet Dhillon and Daniel Gade, similarly refused to commit to this position at their hearing.
It’s the EEOC’s job to interpret Title VII to promote equal employment opportunity, to investigate incoming charges of discrimination, and to advocate for its legal positions in the courts. And as the EEOC GC, it will be Gustafson’s job to bring litigation to advance and enforce the EEOC’s interpretation of the law. As such, she could choose to privilege certain issues or kinds of litigation over others – leaving certain populations in the cold. That means her beliefs are relevant. They are relevant to the LGBTQ individual seeking protections from being fired just because of who they chose to date, to the woman at work who is trying to decide if she wants to have an abortion and is worried about retaliation should her employer find out, or to someone whose employer is denying health insurance coverage for birth control based on religious views – and to all of us who believe that our country’s anti-discrimination laws must be robustly enforced.
In Gustafson’s opening statement she told the Committee she would be a “wholesome addition to the mix at the EEOC.” Without context, we can’t help but wonder whether “wholesome” is a sign meant to assure anti-abortion and anti-LGBTQ policy makers and activists that she has their back. These issues leave us with ongoing and critical concerns about this nominee.
We hope the members of the HELP Committee carefully and thoroughly review her record and responses before the vote.
