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Ford Turned to Trump Labor Pick Scalia to Fight Harassment Suits

Aug. 19, 2019, 10:12 AM

Ford Motor Co. for decades has been defending a series of lawsuits alleging sexual harassment and racial abuse in the automaker’s plants. The company has paid more than $30 million to settle some of those cases and CEO Jim Hackett in 2017 issued an apology to employees after scathing reports of rampant on the job abuses.

Since at least 2007, the company has leaned heavily on Eugene Scalia, the Trump administration’s pick to run the Labor Department, and a team of other high-powered attorneys to defend it in the most significant lawsuits at the federal appeals level.

Scalia’s approach to issues in employment cases is expected to become a key line of questioning for Democrats who remain skeptical about whether decades spent defending major companies accused of workplace illegality qualifies him to lead an agency whose primary mission is protecting workers’ rights.

Scalia represented Ford in at least 27 cases alleging various employment violations going back to 2007, according to a Bloomberg Law analysis. Some lawsuits against the company during that time have made virtually the same allegations and involved the same plants, including a 2019 case that lists Scalia on the docket and refers to Ford as a “recidivist offender that willfully ignored the issues and evidence raised in prior litigations and EEOC findings.” As recently as last month, the Labor nominee was listed as a part of Ford’s defense team appealing a nearly $17 million jury verdict in favor of a Lebanese employee alleging discrimination and retaliation for instructing a subordinate to make a sexual harassment complaint.

“A significant portion of our allegations in these particular cases is not just that there’s a culture of harassment at Ford, but there’s a culture of harassment, and retaliation for complaints of harassment, going up to the supervisors and the highest levels, to be plain,” said Nicolette Ward, a lawyer at Romanucci & Blandin who joined the plaintiff’s team last year in one of several ongoing bias and harassment case against the company. A December 2017 investigation by the New York Times, including interviews with over 100 current and former employees and industry experts, described a similar “culture of harassment” at some Ford plants.

“Ford does not tolerate sexual harassment or discrimination,” a company spokeswoman told Bloomberg Law in an e-mail Aug. 5. “We take those claims very seriously and investigate them thoroughly. We have a comprehensive approach to prevent and address sexual harassment and discrimination at our facilities.”

Scalia’s career-long record defending a slew of corporate clients accused of employment violations has been a topic of news reports and political discussion since president Donald Trump said in July that he planned to nominate the Gibson, Dunn & Crutcher partner for Labor Secretary.

“Over the years, Gene Scalia and other Gibson Dunn lawyers have had the privilege of representing numerous firm clients in a variety of employment matters, including Ford Motor Company,” Pearl Piatt, a Gibson Dunn spokesperson, told Bloomberg Law in an e-mail. “In the majority of employment cases litigated to judgment for Ford, the courts have accepted the position the firm advocated on behalf of its client. Gibson Dunn also helped Ford reach an important agreement with the EEOC to address allegations of harassment at its plants in Chicago.”

Republicans and many management-side lawyers have praised the Trump administration’s pick.

“No one, in my view, can fairly challenge his fitness for the role,” said David Garland, lawyer and chair of Epstein Becker Green’s national employment, labor & workforce management steering committee. “You might disagree with the positions he’s taken, but I have no doubt they’re always well grounded in his understanding of the statutes—and remember that he’s doing something in his role as an advocate for a client.”

Scalia’s predecessor, Alexander Acosta, resigned from the labor secretary post because of criticism of his role in granting a lenient plea deal to alleged teen sex trafficker Jeffrey Epstein. Fast food executive Andy Puzder, Trump’s original pick for the job, withdrew from consideration and opened the door for Acosta in the face of concerns about decades-old domestic abuse allegations that Puzder’s ex-wife later recanted.

Scalia will likely face scrutiny and lines of questioning over his own role defending against the allegations of an extensive, decades-long culture of sexual harassment and race bias at Ford plants, especially in the era of #MeToo.

Scalia declined to comment on the record. The White House has defended its nominee, citing his lengthy experience as a private litigator and in the federal government.

Argued Against Trump EEOC

The lawsuits Ford has settled with the Equal Employment Opportunity Commission involved allegations ranging from exposure to pornographic images and demands for sex in exchange for career benefits, to actual sexual and physical assault.

Women were allegedly called degrading names and groped by coworkers. Those who complained were allegedly harassed even more in retaliation, told to forget the incidents, or subjected to increased scrutiny.

“Ford has a history of this. In the two plants located here in Chicago there’s been a long pattern and practice of sexual harassment of women, especially toward women of color,” said Antonio Romanucci, a partner at Romanucci & Blandin and Ward’s co-counsel in one of the lawsuits against Ford.

One ongoing class action, Martin Chaidez v. Ford Motor Company, alleges that Ford’s hiring practices systemically discriminated against Latino and Hispanic job applicants.

Scalia argued that the suit should be dismissed on technical grounds. That pitted the nominee against the Trump administration’s EEOC, the federal agency that combats workplace discrimination.

The job seekers initially alleged that Ford’s employment tests are discriminatory in and of themselves, but argued later that Ford prevents them from participating in the testing in the first place, Scalia said in that case. The lawsuit should be dismissed, he argued, because the allegations in court don’t track those in the initial EEOC complaint, and therefore failed to put Ford on notice of the specific accusations.

The EEOC intervened in the case to urge the court against adopting Scalia’s position. Scalia initially countered that the EEOC’s brief represented “at most” the opinion of some career staff attorneys because the five-seat commission lost its quorum in early 2019 when it dropped to two sitting members. Agency attorneys noted they’d been authorized to intervene when there was a quorum, and Scalia withdrew that argument when Trump nominee Janet Dhillon was confirmed to head the agency.

The appeals court has yet to issue a final decision in the Chaidez case.

In June, the U.S. Supreme Court issued a ruling that limits employers’ ability to rely on the technical defense Scalia is using, unless they raise it in the earliest stages of a lawsuit.

According to Garland, the defense strategy and arguments Scalia made aren’t particularly unusual.

“I see nothing troubling at all by the argument. Management attorneys are adverse to the EEOC on a daily basis. It shouldn’t come as a surprise that we don’t always agree with the EEOC’s position on matters,” he said. “Sometimes a court will say it’s right, sometimes they’ll say it’s not, and that’s why we have judges to decide.”

James Bizzieri, one of the attorneys opposing Scalia in the case, disagreed.

“I don’t see this kind of defense very often, often you’re allowed to amend pleadings if there’s an issue like that,” he said. “That said, it’s all part of being in an adversarial process, defense lawyers are trained to try and get their clients out of situations, and I don’t fault them for that.”

‘Objectivity’ an Issue


Each of the attorneys arguing cases against Scalia who spoke with Bloomberg Law on the record said he is a very sharp and competent lawyer, and a zealous advocate for Ford and his other clients.

“The client certainly has a well-deserved reputation for misconduct, but he’s just doing his job, just like a criminal defense attorney who represents a person engaged in conduct the attorney finds personally offensive,” said Christopher Cooper, a plaintiff’s attorney in Chicago arguing three ongoing employment cases against Ford.

Still, all but one said they had reservations about his ability to see issues from workers’ perspectives, given his long career on the defense side of the employment litigation bar.

“Time becomes important in these situations. I think if you spend a lifetime zealously advocating for the general public and the underdog you’re less likely to be overly sensitive to the concerns of big corporations and the like,” Bizzieri said. “A lot obviously depend on the individual, and whether or not they can take a step back from what they’re used to and see an equal playing field.”

Cooper is the plaintiff’s attorney in the 2019 case alleging Ford “is a recidivist offender.” That case alleges a pattern and practice of discrimination, harassment, and retaliation towards a black female employee, including physical sexual assault by co-workers.

Cooper, who often represents police officers suing their employer, noted that he is “supportive of the labor and employment vantage point of the Trump administration,” and said he has a generally “very favorable” view of Scalia.

“When you consider what he’s been nominated for, and that he comes from the defense side, the question becomes can he be objective,” Cooper said. “I believe he can, and that he’s a good person to help us address some employment lawsuits that are unnecessary and just not very sensible.”

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com