EEOC Rejects Ex-Official’s Abortion Travel Letter as Agency View

The U.S. Equal Employment Opportunity Commission said its former top lawyer “lacks authority to speak on behalf of the agency” but didn’t commit to formally investigating her for letters to employers suggesting the commission would take enforcement action over employee abortion travel benefits.

The Littler Workplace Policy Institute sent a letter to the EEOC on Oct. 21 requesting that current legal counsel investigate its former General Counsel Sharon Fast Gustafson after she sent a letter to some employers in which “she suggests she has some measure of legal authority and implies she is acting with the support of the Commission.”

Littler requested that the agency “formally investigate” whether Gustafson’s actions “constitute a breach of ethical rules or regulations.” In an Oct. 28 response letter obtained by Bloomberg Law, EEOC Legal Counsel Carol R. Miaskoff said Gustafson doesn’t speak for the agency, but she didn’t mention a possible probe.

“Ms. Gustafson is not an employee of the EEOC, and she lacks authority to speak on behalf of the agency,” Miaskoff said. “Accordingly, her letter should be understood to represent her own views, not those of the Commission.”

Miaskoff also pointed to the EEOC’s guidance on pregnancy discrimination and noted that discrimination claims can be fact-specific.

Gustafson didn’t immediately respond to a request for comment Monday on the EEOC letter. The agency didn’t immediately respond to a request for comment Monday.

She was fired by the Biden administration in 2021 after refusing to resign her post. She is currently in private practice in Virginia, according to her website.

In a copy of one of the letters from Gustafson dated Oct. 11, she argues that employers could be discriminating on the basis of pregnancy or disability if they offer abortion travel benefits but don’t offer equivalent benefits for other medical conditions.

Hundreds of employers in states where abortion is now illegal after the US Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization have announced coverage of travel for abortion care.

Littler said Gustafson is “misleading and intimidating employers who lawfully provide travel benefits under their health plans for those who need medical care that is not available in their own states.”

—With assistance from Rebecca Rainey.