President Biden has fired the EEOC’s General Counsel. Will this move impact your company?

Probably not. But please keep reading anyway.

(I knew I should have saved the answer for the end of the post. Damnit!)

In what seems to be a pattern, President Biden has fired another general counsel from an employment watchdog agency who refused to resign.

After his inauguration, President Biden fired Peter Robb as General Counsel of the National Labor Relations Board. On Friday, President Biden issued a pink slip to Sharon Fast Gustafson, General Counsel of the U.S. Equal Employment Opportunity Commission.

Who is Sharon Gustafson?

According to her EEOC bio, which is still up on the EEOC website 🙄, the Senate confirmed Ms. Gustafson on August 1, 2019, for a term ending in 2023. She is the first woman to serve as General Counsel at the EEOC. Ms. Gustafson has practiced employment law for 28 years, beginning her career as a management-side employment attorney.

However, what made Ms. Gustafson a curious pick for GC was all the time she spent on the other side of the “v” (Plaintiff v. Defendant) representing employees as a solo practitioner. Her biggest achievement was her Supreme Court win in Young v. United Parcel Service. The Supreme Court concluded in Young that courts must evaluate the extent to which an employer’s policy treats pregnant workers less favorably than non-pregnant workers with similar inabilities to work.

In plain English, the Young decision made it easier for women to get pregnancy accommodations at work.

So, why is Gustafson out?

Was it a concern over the rights of LGBT workers? Too much focus on religious bias?

I don’t think so. Even though the EEOC is supposed to be an independent agency, according to Andrew Restuccia reporting here in the Wall Street Journal, it’s just the way politics works in a change in administration. The general counsel from the prior administration resigns, and the president appoints a new one. Here, Ms. Gusfason refused to resign. So, President Biden fired her.

How will this impact the EEOC?

To answer that question, it’s important to understand the role of the General Counsel. Here is how the EEOC describes the role:

The General Counsel is responsible for managing, coordinating, and directing the Commission’s enforcement litigation program. He or she also provides overall guidance and management to all the components of OGC, including field office legal units. In directing the litigation program, the General Counsel is responsible for developing litigation strategies designed to attain maximum compliance with federal laws prohibiting discrimination in employment. 

The GC decides who to sue. The general counsel can set priorities. A few years ago, it was sexual harassment. Before that, it was vulnerable workers. Recently, there have been many ADA cases pursued.

Targeting systemic discrimination is also a popular strategy. Some, like former EEOC Chair Victoria Lipnic, have speculated that we will see a return to approach.

How will a new GC impact your business?

Like I said above, probably not much.

It’s not like the EEOC will ignore companies that violate EEO laws. But with limited resources, the EEOC is not likely to add them to single-plaintiff cases where the employee has counsel, for example. But, if the EEOC believes that your company discriminates in a way that impacts several workers (e.g., a hiring practice, an accommodation process, etc.), you may find a bullseye on your back.