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Civil Rights Agency Top Lawyer Nominee to Get First Vote

July 30, 2019, 10:03 AM

The White House’s unlikely pick for the general counsel’s role at a worker civil rights agency could be confirmed by the Senate by the end of the week, despite some questions on both sides of the aisle.

Sharon Gustafson, a solo practitioner best known for representing a pregnant United Parcel Service, Inc. employee before the U.S. Supreme Court, was first nominated for the role of general counsel at the U.S. Equal Employment Opportunity Commission in March 2018. A Senate committee will vote July 30 on whether to approve her nomination, which could set Gustafson up for a full confirmation vote before lawmakers leave for the August recess.

Gustafson is not exactly a slam dunk in Republican or Democratic eyes, but perhaps offers a bit of something for everyone. Her anti-abortion stance appeals to GOP members, while her work suing businesses for employment discrimination gives Gustafson some credibility with Democrats.

That background also makes Gustafson something of a wild card for the top lawyer job at the EEOC. The agency has taken a lead role in combating workplace discrimination and harassment in the #MeToo era. It’s also embroiled in a rift with the Justice Department over legal protections for LGBT workers.

The Human Rights Campaign, National Women’s Law Center, and other advocacy groups expressed concern about Gustafson’s approach to sexual orientation and gender identity bias. They cited her “evasive answers regarding the rights of LGBT workers” during a 2018 confirmation hearing in a letter addressed to the committee chair, Sen. Lamar Alexander (R-Tenn.).

Behind the scenes some business community representatives have said Gustafson was a surprise choice for the job. Republican nominees typically have had more litigation experience representing management. Although she started her career with four years at business law firm Jones Day, the bulk of her recent work appears to be on behalf of employees. An analysis of Gustafson’s experience in federal labor and employment cases showed her representing workers in the vast majority of cases in which she was involved since 1993.

Gustafson didn’t respond to calls or emails requesting a comment.

“It could be that the suit fits,” said Rutgers Law School co-dean David Lopez, who was the EEOC’s general counsel during the Obama administration. “It is rare to find plaintiffs'-side lawyers who are Republicans.”

This is the second time Gustafson has been nominated, after her previous nomination expired in January 2019. The Senate Health, Education, Labor, and Pensions Committee also will vote on EEOC Commissioner Charlotte Burrows’ (D) nomination for another term at the agency.

Mixed Feelings

Gustafson’s ardent anti-abortion stance and her responses to questions during the confirmation hearing have raised questions about whether she would protect LGBT workers alleging discrimination on the job. Her financial disclosures revealed her affiliation with the evangelical Gordon-Conwell Theological Seminary. The push for LGBT rights has raised concerns about religious freedom protections.

Sen. Patty Murray (D-Wash.), the top Democrat on the Senate HELP Committee, still has reservations about Gustafson, citing Gustafson’s involvement in “multiple organizations that believe that it is appropriate to discriminate against people on the basis of their sexual orientation or gender identity.”

Murray expressed those initial concerns about Gustafson during her hearing in front of the committee last April. She intends to vote no on Gustafson’s nomination, according to a Murray staffer.

The EEOC considers sexual orientation and gender identity bias forms of sex discrimination already banned by federal law. The Justice Department says Congress must update the law if it wants to protect LGBT workers. The Supreme Court is set to take up a trio of cases—including one in which the Justice Department is representing the EEOC—in September.

Gustafson dodged the question during her confirmation hearing, saying the law is “in flux in this area.”

“Her refusal in her confirmation hearing to affirm that discrimination motivated by an hostility toward an individual’s sexual orientation or gender identity is a form of sex discrimination is deeply troubling, as is her evasiveness on whether employers are prohibited from discriminating against workers when they choose to end a pregnancy,” National Women’s Law Center’s Vice President for Education & Workplace Justice Emily Martin said in an email. “This evasiveness signals a risk that she might abandon EEOC guidance and precedent for political purposes in her interpretation of the scope of workplace antidiscrimination laws.”

Still, Gustafson’s background on the plaintiff’s side is seen as a boon by some worker advocates. She has spent much of her recent career in the courtroom suing large employers, like Marriott International, BearingPoint, Aramark and Washington Gas Light Co.

Gustafson successfully sued UPS for discriminating against a pregnant driver who the company refused to allow work. The case ultimately went to the Supreme Court, which overturned a lower court’s ruling against the driver. The justices also made clear that pregnant workers can sue for discrimination based on their employer’s refusal to assign them to “light duty” for the length of the pregnancy.

“The court created a new legal rule that there is an obligation to accommodate pregnant workers,” said Samuel Bagenstos, a University of Michigan law professor who worked with Gustafson on the case. “Almost instantly, a lot of companies changed their policies.”

Gustafson has represented plaintiffs in a wide range of discrimination, harassment, and retirement and benefits litigation. That includes recently settling a pair of lawsuits against ABM Industries Inc., on behalf of shuttle supervisors at Washington’s Reagan National Airport. One supervisor said he was fired after suffering two strokes while the other said he was let go for using medical leave after part of his leg was amputated in an accident on the job. The settlements in those cases weren’t made public.

“She certainly is not a representative of the management bar, which seems to generally have a lot of say about who usually gets picked for these positions,” Bagenstos said.

Timing Unclear

Sen. Tim Scott (R-S.C.) said it’s past time to get the nomination moving.

Gustafson “has a great record” tied to her private sector work, Scott said. He added, however, that Gustafson and Burrows are long shots to get a confirmation before the Senate’s six-week break, unless lawmakers come up with some sort of package deal to speed votes.

“Floor time is so precious right now” and the focus is on voting on a full slate of nominations for judges, Scott said.

Still, he said he expects both nominees—and Keith Sonderling, who has been nominated for a Republican seat on the EEOC—to get confirmation votes by the end of September.

Gustafson’s experience working out of a home office also is unusual for an EEOC general counsel nominee, said Seyfarth Shaw senior counsel Lawrence Lorber.

“She’s essentially practiced in her home,” he said. But her work with employees and managers could be beneficial, he said. “She brings another perspective to the commission, and that’s not a bad background.”

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com