Obama Civil Rights Lawyers’ Second Act Means ‘Switching Sides’

When two lawyers known for policing workplace discrimination during the Obama administration went looking for new gigs, Morgan Lewis, a Big Law firm that often defends companies accused of violating workers’ rights wasn’t exactly a natural landing spot.

Former Equal Employment Opportunity Commission member Chai Feldblum and her chief of staff Sharon Masling said their new roles as management-side lawyers let them help companies change from the inside.

“We both came for a very specific reason, which really was this idea of an affirmative workplace culture,” Feldblum said. “I really didn’t have any issue with knowing this was the right platform from which to do that.”

Their jump turned heads among some Democrats and worker advocates, typically aligned with the plaintiff’s side of the labor and employment bar.

Morgan Lewis has recently defended lawsuits by workers at Amazon, ExxonMobil, and JPMorgan Chase and represented President Donald Trump and his company in tax and other cases. The firm also argued on behalf of a number of major corporations in favor of same-sex marriage in the Supreme Court.

Feldblum, who was nominated by President Barack Obama and became the EEOC’s first openly gay member, and Masling—a Justice Department civil rights lawyer who worked for Sen. Tom Harkin (D-Iowa)—moved to private practice last year. They went looking for new jobs after a small group of Republicans opposed Feldblum’s nomination by Trump for what would have been a third term in a designated Democrat commission seat.

“I was a bit surprised,” said Brenda Feis, a Chicago trial lawyer who represents employees, of Feldblum’s next career move.

“The EEOC is supposed to be a neutral agency and I think Chai was always fair-minded in leading it, but I certainly would have thought her personal sentiments would have been on the employee side,” said Feis, who herself “switched sides” after more than two decades of defending companies as a partner at Seyfarth Shaw. “That said, she has a real talent for leadership and ability to bring together differing voices.”

Feldblum is the only Democratic member of the EEOC in the last 20 years to move from the commission to a defense firm, according to a Bloomberg Law analysis. She and Masling are part of the Morgan Lewis workplace culture consulting group.

They’re also bringing their experience from the “other side” to bear on companies’ efforts to navigate thorny legal issues posed by the coronavirus pandemic. That includes questions related to the Americans with Disabilities Act, a landmark law that Feldblum had a hand in crafting three decades ago, in the midst of another health care crisis: the HIV/AIDS epidemic.

‘Do the Right Thing’

Morgan Lewis technically isn’t Feldblum and Masling’s first large law firm. Both participated in summer associate programs during law school, before turning largely to academia and government service.

Still, the century-old firm with more than 2,000 attorneys and reportedly $2.3 billion in annual gross revenue last year offered a pretty dramatic change of scenery. It’s given the pair a new perspective on employers’ legal obligations in the workplace.

“I feel grateful for being able to expand my own worldview, which by the way has not changed one bit,” Feldblum said. “It’s not about me changing my beliefs. It’s about me just gathering more data about practical realities.”

Feldblum’s third term at the EEOC was stalled by a group of four Republican senators, including Marco Rubio (Fla.) and Mike Lee (Utah). The lawmakers balked at what they said was her history of championing LGBTQ rights over religious liberty.

Lawyers on both sides of the labor-management divide, however, describe the daughter of a New York rabbi as a moderate voice who looked for areas of agreement with the EEOC’s Republicans.

“I never saw Chai or Sharon as hard left as portrayed by some,” said Jonathan Segal, a management-side lawyer in Philadelphia who worked with the pair on a harassment task force. “I was maybe a little surprised that they went to Morgan Lewis, given both of their backgrounds, but I actually think it complements both of their skill sets. People with the experience of having been at regulatory agencies have a lot of insight into preventing legal violations.”

Feldblum and Masling said they made it clear to Grace Speights, who leads the firm’s labor and employment practice, that they wanted to advise companies about how to comply with the law, not defend them in court. But the lawyers—who worked together on a Georgetown University “workplace flexibility” project before joining the EEOC—also said they’ve helped other attorneys at the firm understand what the agency is looking for when it comes to allegations of discrimination and harassment.

“At the EEOC, we would often see the worst of the worst,” Masling said. “Now we are seeing so many who are trying to comply with the law and do the right thing.”

Another Epidemic

The coronavirus pandemic has disrupted many of the best laid plans, including for Feldblum and Masling. The pair have recently found themselves spending less time on combating harassment and more on advising companies about testing workers for the virus, handling sensitive health information, and deciding which employees can return to the job.

That includes how to determine whether a specific employee poses a “direct threat,” which allows a company to keep the worker off of the job without violating federal disability rights law. The EEOC has said companies can’t simply bar employees with certain medical conditions from working during the pandemic without first determining if the person can be reasonably accommodated.

The “direct threat” language was included in the Americans with Disabilities Act three decades ago as a compromise for some lawmakers who questioned whether workers with HIV/AIDS should be protected by the law, says Feldblum, who was working as legislative counsel for the American Civil Liberties Union’s AIDS Project at the time.

“There was a fear of contagion, even though of course HIV is not transmitted in the way Covid-19 is,” she said. The “direct threat” provision was included “to deal with the unfounded fear of some that it could be transmitted” but was never used to exclude workers with HIV/AIDS because they were not determined to actually pose a threat, she said.

That’s the kind of insider perspective that Feldblum and Masling say they’re giving clients, even if it’s now on the corporate side.

“We are still the same people and have the same values as we did a year ago,” Masling said.