Five Reasons Eugene Scalia Is a Terrible Choice to Lead the Department of Labor

It’s a day ending in y and Donald Trump is still president, so naturally I have some bad news to share. The administration that brought you a Secretary of Education who opposes students’ rights, a Secretary of Energy who said the agency he leads should be abolished, and so many more truly terrible cabinet picks has nominated Eugene Scalia to be Secretary of Labor (the position most recently held by Alex Acosta, who resigned in connection with his role in approving a 2008 plea bargain that let Jeffrey Epstein serve a mere 13 months in jail after being accused of sexually abusing dozens of women and girls).
Yes, he is the son of the late Supreme Court Justice Antonin Scalia, but Eugene is plenty bad in his own right. Eugene Scalia has dedicated his entire career to defending employers at the expense of working people—in direct opposition to the Department of Labor’s mission to “foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States.” There is a looooong list of reasons why he is unfit to lead DOL, but it only takes a few to make clear that the Senate Committee on Health, Education, Labor & Pensions – which will be holding a hearing on Scalia’s nomination tomorrow – should refuse to confirm him. Here are five:

  1. He wants to make it easier for employers to avoid liability for sexual harassment in the workplace. In 1998, Scalia authored a law review article in which he asserted that employers should not be liable for certain types of supervisor harassment – including instances where a supervisor repeatedly gropes a subordinate on a business trip, or a supervisor threatens to fire a subordinate if she doesn’t submit to his advances – unless the employer explicitly “endorsed the conduct.” Such a radical change to current law would create a system in which employers are almost never accountable for harassment enabled by the authority vested in supervisors, would enable serial harassers, and would leave countless victims of sexual harassment and assault without recourse.
  2. He helps employers escape liability for discrimination based on race or disability, too. In 2016 Scalia successfully represented Catastrophe Management Solutions, an insurance claims company, against the EEOC’s allegation that the company’s policy prohibiting “excessive” hairstyles was racially discriminatory because a Black job applicant’s employment offer was rescinded when she refused the company’s request to cut off her locs. The Eleventh Circuit ruled in favor of the company—even though states and cities increasingly recognize, and NWLC’s research has shown, that such dress and grooming policies can have a disproportionate negative effect on Black people and be a vehicle for race and sex discrimination.

Scalia also was part of legal teams defending corporations like Ford Motor Company and UPS in several cases that sought to deny employees accommodations under the Americans with Disabilities Act, to narrow the legal definition of disability, and to weaken workers’ ability to come together as a class to challenge disability discrimination.

  1. He wants to make it harder for working people to enforce their rights. Scalia has defended corporations’ use of forced arbitration agreements—which both prevent workers from having their day in court, and often include clauses that prevent workers from being able to come together to challenge working conditions.
  2. He fights against regulations that make workplaces better for workers (i.e., the regulations that the Labor Secretary is charged with enforcing). Representing the U.S. Chamber of Commerce, Scalia opposed an ergonomics rule that would have prevented 600,000 musculoskeletal injuries a year. Representing UPS, he opposed rules requiring employers to pay for protective equipment that workers needed on the job. And he defended SeaWorld when it tried to dodge a penalty from the Occupational Safety and Health Administration (OSHA, which is part of DOL) for failing to protect a trainer who was drowned by a killer whale.
  3. He fights against regulations that make it harder for investment advisors to swindle retirement savers. Representing the U.S. Chamber of Commerce (again), Scalia got a court to strike down the Obama-era “fiduciary rule” that sought to require investment brokers to provide advice in the best interest of their clients—and to prevent retirement savers from losing an estimated $17 billion each year as a result of receiving conflicted advice.

This record of hostility to workers’ rights makes it no surprise that Scalia’s client, the U.S. Chamber of Commerce, has called his nomination an “excellent choice”—but he is clearly the wrong choice for the rest of us.