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Explainer: Removal of EEOC general counsel creates concern for religious liberty protections

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March 9, 2021

On Friday, President Joe Biden removed the general counsel of the U.S. Equal Employment Opportunity Commission (EEOC), an action seen by many as controversial. Sharon Gustafson was appointed by President Donald Trump in 2018 to serve as the agency’s top litigator through 2023. She recently sent a letter to President Biden on March 5 declining his request to resign. 

“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,” Gustafson wrote in her letter to the president. “In solidarity with them, I will follow that advice.”

The administration previously fired the general counsel of the National Labor Relations Board General Counsel (NRLB), another Trump appointee, who also refused to resign. President Biden’s decision to fire Gustafson may have significant implications for religious liberty protections, which would be deeply concerning for Christians.

What is the EEOC?

The EEOC is the federal agency responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, national origin, age (40 or older), disability or genetic information. This also applies to sex, which includes pregnancy, sexual orientation, and transgender status.

EEOC laws apply to most employers with at least 15 employees and 20 employees in age discrimination cases. Most labor unions and employment agencies are also covered. The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

The EEOC has such powers as the ability to litigate discrimination cases and issue regulations interpreting the law. The agency can also accepts charges of discrimination from employees, investigates those charges, and attempts to mediate settlements between employees and employers.

Can’t the president fire anyone in his administration?

It’s unclear whether the president has the authority to fire officials at the EEOC. Within the executive branch of the federal government there are certain agencies, such as the EEOC and NRLB, which are supposed to operate as independent agencies. 

The 1935 case of Humphrey’s Executor v. United States ruled that the Constitution had never given “illimitable power of removal” to the president, and that President Hoover could not remove William E. Humphrey as a commissioner of the Federal Trade Commission (FTC). It is possible that this firing will lead to further litigation that expands on the Supreme Court’s recent decision in Seila Law v. Consumer Financial Protection Bureau, which dealt with the Consumer Financial Protection Bureau.

In any case, it is safe to say that the Biden Administration’s action is without legal precedent and may be overturned.

What is the EEOC’s role in implementing Bostock v. Clayton County?

In June of 2020, the Supreme Court issued a 6-3 ruling in a consolidated group of cases styled Bostock v. Clayton County. With the Bostock decision, the Supreme Court expanded the definition of “sex” to include “sexual orientation” and “gender identity” under Title VII of the Civil Rights Act of 1964. 

Bostock was a sweeping decision that fundamentally redefined the legal definition of “sex” and threatened, substantially, the conscience freedoms of religious employers in the United States. Because the EEOC is tasked with enforcing federal laws against discrimination, the commission will play a critical role in implementing Bostock and investigating claims of workplace discrimination. To a large extent, the leadership of the EEOC will determine whether or not the commission wields the weight of the federal government to threaten companies with dissenting views about human sexuality. Further, should the Equality Act become law, the EEOC will also pay a significant role in the implementation of this troubling legislation.

What is the role of the general counsel?

According to the EEOC, the General Counsel is responsible for managing, coordinating, and directing the Commission’s enforcement litigation program. As the agency’s counsel, they also provide overall guidance and management to all the components of the Office of General Counsel, including field office legal units.

The General Counsel is also responsible for developing litigation strategies designed to attain maximum compliance with federal laws prohibiting discrimination in employment. 

Why did Biden fire Gustafson?

The Biden administration has not stated its official reasoning for wanting to remove Gustafson as general counsel. However, after her nomination, several LGBTQ activist groups opposed her appointment to the EEOC. They opposed her, in part, because of the “evasive and non-committal” answers she gave “regarding the rights of LGBT workers.” 

In her letter declining to resign, Gustafson noted that after Biden’s inauguration, information on her efforts to promote religious freedom were removed from the EEOC website.

What is Gustafon’s record on religious liberty for employers?

Gustafson had been seen as an advocate for religious freedom. As she pointed out in her letter to President Biden, she focused on religious discrimination in the workplace throughout her time at the EEOC. She noted that during her tenure, “a Religious Discrimination Work Group” was established “that hosted a series of Listening Sessions in which a diverse group of religious representatives — including Christians, Hindus, Jews, Muslims, and Sikhs — recommended ways the EEOC could  improve its response to employees who experience religious discrimination.” 

Additionally, rather than penalizing those with religious views, Gustafson prioritized balancing religious liberty concerns with competing claims of discrimination.

What does this mean?

Because the administration has refused to provide its rationale for seeking Gustafson’s resignation, it is unclear exactly why these actions were taken. However, there is reason to believe that this effort to interfere with an independent government agency is being done in service to the LGBT lobby. In any case, this action violates the EEOC’s autonomy and may portend further hostility toward Americans who dissent from the radical sexual orthodoxy of the progressive movement. The effort to replace Gustafson sends troubling signs about the future on these issues.

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