Sharon Gustafson, appointed to a top civil rights post in the Trump administration, had been looking forward to working with the new administration after the one that appointed her came to a tumultuous end in January.
She made waves last week on Friday when she penned a letter refusing the Biden administration’s request that she resign from her position of general counsel at the Equal Employment Opportunity Commission. She was immediately fired, prompting questions about the legality of her termination as well as a spirited condemnation of the president’s decision from one of Gustafson’s EEOC colleagues.
The legal community disagrees about whether the EEOC general counsel serves at the pleasure of the president since the agency’s status as independent or executive is debatable.
Gustafson, the first woman to serve as general counsel of the EEOC, which works to enforce federal civil rights laws against workplace discrimination, was confirmed by the Senate in August 2019, and her term was set to expire on August 5, 2023.
While her firing was sudden, the new administration had made several moves to curb Gustafson’s work in the weeks beforehand, signaling its discomfort with some of her priorities. Her emphasis on religious discrimination claims in particular had rankled LGBT advocates, who worried that religion-based claims might clash with LGBT discrimination claims.
Now, Gustafson is concerned that the civil rights agency may fail to give equal weight to discrimination claims based on religion and those based on LGBT status.
“Do I have concerns about whether going forward the EEOC will fail to keep in mind that those are on an even footing? Yes, I have concerns about that,” Gustafson said Wednesday during an interview with The Daily Wire.
“The protection from religious discrimination has become a disfavored right,” she said.
A couple of weeks before her firing, a recent EEOC report on religious discrimination based on listening sessions spearheaded by Gustafson was scrubbed from the agency’s website. Shortly afterward, an eight-minute podcast in which she discussed the report’s findings was also taken down. Gustafson said she was accused of “trying to advance her agenda” with her remarks on the podcast.
The report built on an initiative started by the Obama administration to combat religious discrimination, which in 2016 found a lack of awareness by both employers and employees about religious discrimination, as well as hesitancy among employees to report religious discrimination for fear of retaliation.
The four dialogue sessions organized by Gustafson consulted a diverse group of participants that included health professionals and civil rights advocates, as well as leaders and members of various religions including Christians, Jews, Muslims, Hindus, Buddhists, and Sikhs. The resulting report found that there is a lack knowledge of the rights and obligations related to religious discrimination in the workplace, and that while the EEOC sometimes resolved a case satisfactorily, some investigators were simply not trained in the complexities of religious discrimination issues.
Gustafson said afterward in a statement that the EEOC was “motivated by their experiences to redouble our efforts to prevent and remedy religious discrimination in the workplace.”
Some religious participants emphasized that they wanted to live in peace with their neighbors, but that it is crucial that the rights of those who hold traditional views of marriage and sexuality be protected, while others emphasized that LGBT rights must also be protected. Some participants also expressed concern that since the Supreme Court’s Bostock v. Clayton County decision last year, which established that the Civil Rights Act bars workplace discrimination against employees based on their gay or transgender status, there is an assumption that the rights of religious people are now of less importance.
Some of her EEOC colleagues reportedly expressed concern that Gustafson’s emphasis on religious discrimination rights led to her seeking out cases that fit a certain profile, including an instance where Gustafson supposedly told attorneys to “find me” a case involving a religious hospital that refused to perform abortions, so she could lend the EEOC’s support to the hospital.
However, Gustafson insisted that she does not go searching for cases of a specific ilk.
“I don’t go find the cases myself. They come to me from the field. The regional attorneys bring me cases and say, you know, can we file this?” Gustafson said.
At one point, an EEOC attorney wrote a letter to Gustafson criticizing a specific case the EEOC brought last year against grocery story giant Kroger, accusing the company of illegally firing two employees who cited their religious beliefs in their refusal to wear a new apron with a rainbow heart embroidered on it, which they understood to be a show of support for the LGBT community.
The EEOC attorney said he was struggling to “see the difference under EEOC’s current interpretation of the law between a sincerely held religious belief that ‘homosexual acts are sins’ and a sincerely held religious belief that the Jews killed Christ or that the religiously ordained condition of Blacks should be one of slavery.”
Gustafson responded to the attorney in an October letter, saying that there is a distinction between an employer forcing employees to express beliefs they do not hold and a discriminatory employee who insists on harassing his or her coworkers.
“An employee who wants to berate, offend, or refuse to work with other employees is quite different from an employee who wants to be left alone to do her job,” she wrote in her letter to the attorney.
“These were not women who were attempting to harass other people,” Gustafson said of the women in the Kroger case. “They were just people who were saying, ‘don’t force me to celebrate this,’ and that is a very different thing from employees who are harassing or hurting employees that they disagree with.”
“We are not protected from having somebody think we’re wrong, on either side,” she continued. “We have to be able to bear up under the disapproval of our fellow coworkers. And sometimes the religious people have to bear up under the disapproval of their coworkers, and sometimes the LGBTQ have to be able to bear up under the disapproval of their coworkers.”
Gustafson contends that the prevailing narrative surrounding her firing, that she supposedly championed religious rights over LGBT rights, is false because the two interests are “very, very rarely” ever in conflict.
“It’s being assigned to me, and I have never taken the position that it’s true, and I believe it’s not true,” she said, adding that she often encourages those who are concerned to show her the specific cases they have in mind.
One of the few instances where religious rights and LGBT rights might conflict with each other in the workplace is a situation where a religious employee wanted to talk about their faith and another employee did not want to hear about it, Gustafson said. In that case, she said, the religious employee is obligated to stop talking about his religion as soon as they know the speech is unwelcome.
During Gustafson’s tenure at the EEOC, only two cases involving LGBT discrimination were presented to the agency, and she approved both of them. Meanwhile, only two percent of the charges filed with the EEOC are LGBT claims, while approximately four percent are religion discrimination claims, Gustafson said.
Before her arrival, religious discrimination claims had been “put aside” and LGBT claims had become a “pet project,” Gustafson said. Her goal was to correct that imbalance and ensure both types of claims receive equal treatment, she said.
Commissioner Andrea Lucas, who excoriated the president’s decision on Twitter shortly after Gustafson’s dismissal, argued that unlike Cabinet officials, the EEOC’s general counsel has a fixed term that intentionally does not align with each presidential administration.
“This is one of the ways Congress ensured that the agency remains bipartisan and, true to its structure, independent,” Lucas said. “Last week’s action is a strike against these principles and, worse, could encourage parties to challenge the authority and legitimacy of the Commission’s litigation efforts to eliminate unlawful employment discrimination.”
President Biden’s decision “infused politics where it is not supposed to be,” the Republican commissioner said.
Despite Gustafson’s ouster, the EEOC’s five-member commission, which can overrule the general counsel on matters of litigation and policy, still has a 3-2 Republican majority. Biden would have to fire a Trump-appointed member of the commission in order to create a Democratic majority before July 1 of next year, when Republican commissioner Janet Dhillon’s term is up.
Meanwhile, Biden has fired or demanded the resignations of Trump-appointed general counsels at other independent federal agencies as well. The National Labor Relations Board’s top lawyer Peter Robb also refused to resign and was fired after labor unions allegedly pressured the administration. Former Trump-appointed Health and Human Services Department official Roger Severino, who has also been frequently accused of being anti-LGBT, was also ousted from his position on the Council of the Administrative Conference of the United States.
For Gustafson and some of her colleagues, they found irony in the administration’s decision to jettison her from the very agency tasked with preventing workplace discrimination.
“I found that ironic,” Gustafson said. “I think in terms of whether that’s a good idea, I don’t think it was a good idea.”
“But I’m not here to whine about myself, truly I’m not. I care about the laws that the EEOC enforces, and I did my very best to enforce all of them as fairly as I possibly could, and if I had been left in my position I would have continued to do that,” she said.
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