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White House fires EEOC general counsel who refused to resign
07/03/2021
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White House

The US Equal Employment Opportunity Commission’s (EEOC) general counsel has been fired by the White House after “respectfully” declining President Joe Biden’s request for her to resign so that he might appoint a new senior lawyer to the federal agency.

An appointee of former President Donald Trump, Sharon Fast Gustafon was nominated to serve as the EEOC’s top lawyer on 20 March 2018 and was confirmed by the US Senate on 1 August 2019 for a four-year term ending in 2023.

In a letter rejecting the request to resign her post, Gustafon, who was the first woman to serve as the agency’s most senior lawyer, wrote: “I have confidently given this advice to countless embattled clients over the last 25 years: hold your head high, do your best work, and do not resign under pressure. In solidarity with them, I will follow that advice.”

In her letter, Gustafon said she wanted to continue “the EEOC’s mission to prevent and remedy illegal employment discrimination” and that “when my term ends and the time comes for my eventual successor to assume the position of general counsel of the EEOC, it would be my great pleasure to then cooperate and facilitate an orderly transition”. 

While Andrea R. Lucas, the Trump-appointed commissioner of the EEOC, tweeted that the termination was “troubling” and “an injection of partisanship”, President Biden has the right to appoint his own general counsel to the federal agency.

One of the issues [Gustafon] made as her hallmark, was the issue of discrimination against religious minorities, the law requiring religious accommodation of beliefs

Established following the creation of the 1964 Civil Rights Act, the EEOC is responsible for enforcing civil rights laws against workplace discrimination.

In 2018, several civil and human rights organisations expressed “strong concerns” over Gustafon’s nomination to the agency after what they described as her “evasive answers” over the rights of LGBTQ+ workers.

The civil rights groups said the commission needed “an effective general counsel who is committed to enforcing the law and protecting the rights of all employees, regardless of gender identity or sexual orientation” and that Gustafson’s “evasiveness suggests that she is unwilling or reluctant to preserve the EEOC’s critical mission of defending [LGBTQ+] people’s well-established legal rights”.

Last September, the EEOC filed a federal lawsuit against supermarket chain Kroger after two former employees claimed to have been wrongfully terminated for refusing to comply with a new dress code that included an apron with a rainbow-coloured heart logo.

The workers believe the emblem endorsed LGBTQ+ values and that wearing it would violate their religious beliefs. The lawsuit, filed in the Eastern District of Arkansa, states the employees “believe in the literal interpretation of the Bible” and “hold a sincerely held religious belief that homosexuality is a sin”.

In her letter to the White House, Gustafon alleged that reports she had authored on “religious freedom” have recently been removed from the EEOC’s website and that she could “only assume that my resignation would be followed by similar suppression of our work promoting religious freedom”.

“One of the issues [Gustafon] made as her hallmark, was the issue of discrimination against religious minorities, the law requiring religious accommodation of beliefs,” former EEOC general counsel David Lopez told the Washington Post. “Some lawyers from the conservative Christian right view this right as a conflict with requiring nondiscrimination against [LGBTQ+] people.”

The Biden administration has unveiled an ambitious agenda to protect and promote LGBTQ+ rights, including an executive order preventing discrimination based on sexual orientation and gender identity.

Prior to joining the EEOC, Gustafson practised employment law for almost three decades, first in a four-year stint as an associate in Jones Day’s Washington, DC-based labor and employment law group, before becoming a solo practi­tioner in Virginia, Maryland, and the District of Columbia.

Gustafson represented Peggy Young in a pregnancy discrimination complaint against UPS that led to the US Supreme Court’s 2015 decision that an employer must provide pregnant employees the same accommodations it provides to other employees with similar restrictions.

Recently released statistics show the EEOC resolved 70,804 pre-litigation claims of discrimination and secured $439.2m for workers in 2020. The agency also resolved 165 lawsuits and filed 93 more alleging discrimination claims in the last financial year, recovering just over $106m for employees.