Bloomberg Law
Free Newsletter Sign Up
Login
BROWSE
Bloomberg Law
Welcome
Login
Advanced Search Go
Free Newsletter Sign Up

Law Firm Calls Out Ex-EEOC Counsel’s Note on Abortion Travel (3)

Oct. 24, 2022, 1:21 PMUpdated: Oct. 25, 2022, 6:29 PM

A management-side law firm says a former Trump EEOC official is using her prior position to scare employers that are considering providing abortion travel benefits.

The Littler Workplace Policy Institute sent a letter Friday requesting that the US Equal Employment Opportunity Commission’s current legal counsel investigate its former General Counsel Sharon Fast Gustafson for warning employers that the commission would take enforcement action over employee abortion travel benefits.

Gustafson, a Trump appointee, was fired by the Biden administration in March 2021 after refusing to resign.

She was known to prioritize fighting religious discrimination in the workplace during her tenure. Her legal stances prompted at least one EEOC attorney to voice concern that the agency’s approach in a religious bias lawsuit against Kroger Co. could impinge on the rights of LGBT workers.

But Gustafson, an attorney who according to her website is practicing in Virginia, has allegedly contacted multiple employers suggesting the EEOC may bring charges against companies that provide medical travel benefits if those benefits are related to obtaining an abortion, according to the letter from Littler to the agency.

Over 120 large 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, according to Rhia Ventures. That number is expected to double over the next few years in the wake of the decision, insurance advisory company Willis Towers Watson PLC reported this month.

‘Claim of Pregnancy Discrimination’

In a copy of one of the letters from Gustafson dated Oct. 11, she suggested that providing travel benefits only for abortion “is to encourage employees to have abortions, and such encouragement has been found to be evidence supporting a class claim of pregnancy discrimination.”

Littler requested that the agency “formally investigate” whether Gustafson’s actions “constitute a breach of ethical rules or regulations.”

“Ms. Gustafson is using her former position to intimidate employers who provide or are considering providing a benefit that is otherwise legal under Federal law in furtherance of her own law practice,” the firm said in the letter to the EEOC, “and personal beliefs 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.”

By email Monday, Gustafson declined to comment on the letter.

An EEOC spokesman said in an email Tuesday the agency would look into the matter and pointed to the EEOC’s guidance on pregnancy-related bias.

“Sharon Gustafson is no longer an employee of the U.S. Equal Employment Opportunity Commission,” the spokesman said. “She lacks the authority to speak on behalf of the EEOC.”

In the letter Gustafson circulated to employers, she warned of potential EEOC Commissioner charges — a rarely used procedure that allows EEOC leadership to initiate targeted bias probes— regarding abortion travel. She argues that providing that benefit discriminates against workers who choose to carry out their pregnancies.

One Republican EEOC commissioner has responded to Gustafson’s behavior described in the Littler letter. “The EEOC’s enforcement priority areas are established by the Agency’s current Commissioners, not a former General Counsel,” said Janet Dhillon, who chaired the agency during the Trump administration.

Keith Sonderling, another Republican commissioner, said Tuesday in an interview that “Congress gave only current Senate-confirmed commissioners, no one else, the power to file commissioners charges. The public must understand that no one—including the current general counsel, prior general counsels, or former commissioners—have that power.”

Andrea Lucas, the agency’s third Republican commissioner, didn’t respond to a request for comment.

(Updated with EEOC comment in 11th and 12th paragraphs, and Commissioner Keith Sonderling comment in 15th graph. Story originally published Oct. 24. )

To contact the reporters on this story: Rebecca Rainey in Washington at rrainey@bloombergindustry.com; J. Edward Moreno in Washington at jmorenodelangel@bloombergindustry.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Genevieve Douglas at gdouglas@bloomberglaw.com;
Rebekah Mintzer at rmintzer@bloombergindustry.com