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Biden Moves on EEOC General Counsel: How Concerned Should Employers Be?

March 8, 2021

On Friday, March 5, 2021, President Biden fired the General Counsel for the Equal Employment Opportunity Commission, Sharon Gustafson.  This marked yet another unprecedented move made by the Biden Administration as it continues to break with tradition in furtherance of its pro-employee, pro-union agenda.  As we wrote last month, Biden was the first President in history to terminate the NLRB’s General Counsel, Peter Robb, upon taking office.

In a similar fashion to how Robb was fired, Gustafson was informed by the White House on Friday that she was being terminated after she had earlier refused the White House’s request to resign.  Ms. Gustafson, the first female General Counsel for the EEOC, was appointed by President Trump in 2019.

In her Friday letter to the White House, Gustafson wrote she “respectfully” declined the White House’s request to resign and that “Civil rights is a bipartisan issue, and all the statutes I enforce as General Counsel were passed with bipartisan support.” She wrote how proud she was of the EEOC’s accomplishments made in just the past year, including over 90 lawsuits filed by her office on discrimination issues like sex, disability, retaliation and age.  Gustafson went on to say she desired to serve her full four-year term, which was scheduled to expire in 2023.  Unmoved, the White House declined her request and proceeded with her termination later that day.

Why Should Employers Care?

General Counsel of the EEOC oversees high-profile litigation matters involving workplace discrimination on issues like race, religion and sex. The EEOC’s investigation and prosecution of these matters has become extremely politicized in recent years.  With the removal of President Trump’s General Counsel, employers can expect a return to the deeply employee-centric policies and prosecution of the Obama Administration.

Republicans and legal scholars have come out quickly against Gustafson’s firing deploring the actions as being in stark contrast to the promises of unity from the Biden campaign.  One of the sitting EEOC Republican-appointed Commissioners, Andrea Lucas, was one of the first to call President Biden out in her Friday tweet:

“I find the action taken today by the White House against our independent agency to be deeply troubling, a break from long-established norms respected by presidents of both parties, an injection of partisanship where it had been absent, and telling evidence of what ‘unity’ actually means to this President and his Administration.”

While the Administration claims that Gustafson’s positions were against the mission and direction of the agency she worked for, Gustafson’s firing is a clear indication of the priorities of the Biden Administration.  As was the case with the Robb termination, Biden, and the Democrats in general, are looking for immediate changes.  His sense of urgency is historically unprecedented.

We have written previously about the pro-employee changes that can be expected with the Biden Administration. The day one termination of Robb and last week’s termination of Gustafson are undeniable proof we were correct.  Employers must take notice.  Change is happening faster than anyone could have predicted even just a few short months ago. The changes being made now at the NLRB and the EEOC are just the beginning.  Employers must ready themselves for the avalanche of pro-employee, pro-union movement that is underway. 

Brody and Associates regularly advises its clients on all labor management issues and provides various related training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or at 203.454.0560.