Bloomberg Law
Dec. 3, 2018, 11:33 AM

LGBT Debate Shackles Trump Harassment Police

Chris Opfer
Chris Opfer

A political dispute over LGBT and religious rights is threatening to handcuff the Trump administration agency that enforces harassment and discrimination law in the midst of the #MeToo era.

The Equal Employment Opportunity Commission won’t have enough members for a quorum if the Senate doesn’t break a logjam on nominations for three EEOC seats before the end of the year. That could leave the agency—which has stepped up harassment enforcement and training efforts over the last year—without the authority to green light new policy decisions, certain big ticket lawsuits, and significant spending.

At the center of the debate is Chai Feldblum (D), the EEOC’s first openly gay commissioner. A handful of Republicans led by Sens. Mike Lee (Utah) and Marco Rubio (Fla.) have put Feldblum’s nomination for a third term on hold over concerns about her approach to bias protections for LGBT workers and religious rights for business owners. That in turn is stalling President Donald Trump’s nominees for two Republican seats on the five-member commission.

“We’re preparing for that contingency,” EEOC Acting Chairwoman Victoria Lipnic (R) told Bloomberg Law, about the possibility that the agency loses its quorum. “There are a lot of responsibilities delegated that are related to the normal functioning operations of the EEOC: taking in charges, investigating them, and issuing charge determinations. All of that will continue.”

Janet Dhillon, a corporate lawyer Trump tapped for EEOC chairwoman last year, and disability advocate Daniel Gade are still waiting to be confirmed for Republican seats on the commission. Democrats have refused to waive voting time restrictions on those nominations unless they’re moved along with Feldblum’s nomination, sources tell Bloomberg Law. Majority Leader Mitch McConnell (R-Ky.) has preferred to use valuable floor time to confirm judges and other nominees.

At Odds With Justice Department

The holdup comes as the EEOC and Justice Department are on opposite sides of a rift over sexual orientation and gender identity bias that could soon be decided by the U.S. Supreme Court.

The commission says LGBT discrimination is covered by a federal ban on sex bias in the workplace. The Justice Department—which represents the EEOC in a case the high court has been asked to take up—disagrees.

The dispute has forced the White House to put on ice EEOC guidance aimed at helping businesses root out harassment in the workplace, a key initiative that started before allegations against Hollywood mogul Harvey Weinstein last year created an avalanche of public interest in the issue. The agency is also unlikely to update a controversial regulation on employee wellness plans blocked by a federal court until the new members are confirmed.

Feldblum’s position on the LGBT bias question and her work on a bill that would have explicitly banned sexual orientation and gender identity discrimination before joining the agency has raised concerns among certain religious groups and their allies in the Senate. Feldblum recently sought to clarify how she would thread the needle between discrimination protections and religious freedom, but the hold on her nomination is showing no signs of receding.

The Family Research Council and the Catholic League are among groups that have praised the effort to keep Feldblum from another term.

“She has an animus against the First Amendment right to religious liberty,” Catholic League President Bill Donohue told Bloomberg Law. “To say that we have a right to religious liberty but that it takes a back seat to gay rights that are found nowhere in the Constitution sends a very bad message to people of faith, at least of a more traditional stripe.”

Day-to-Day OK

If the EEOC drops to two members come January, it won’t be the first time that the agency has been without a quorum.

The commission will likely continue business as usual, reviewing discrimination and harassment complaints and pursuing lawsuits against employers that violate the law. But it will be limited in other areas.

“On a day-to-day basis the agency is able to function quite well,” Jenny Yang (D), the EEOC’s chairwoman during the Obama administration, told Bloomberg Law. “I think the main issue is the larger guidance documents and policy issues have been held up.”

Near the top of the wish list for employers is clarification on whether they can offer workers incentives to participate in wellness programs without violating disability discrimination law. A court ruling will officially kill an EEOC rule to allow employers to cover up to 30 percent of health-care costs if the EEOC doesn’t revise the proposal by the end of the year.

That’s why Feldblum is getting what might seem like some unlikely business community support for a Democrat in a civil rights job. Several management-side lobbyists, including Littler Mendelson’s Michael Lotito, said they’d like to see Feldblum confirmed for another term, even if they don’t always agree with her.

“I find Commissioner Feldblum an extremely thoughtful individual who makes every effort to be balanced in her approach to the issues,” Lotito, whose firm often represents companies sued by the EEOC, said. “This is a person who gets it, she understands the practicalities.”

—Tyrone Richardson contributed to this report.

To contact the reporter on this story: Chris Opfer in New York at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; Terence Hyland at