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EEOC Picks Mix Civil Rights, Business Litigation Experience

April 4, 2020, 12:00 PM

The Equal Employment Opportunity Commission, the federal agency tasked with combating workplace discrimination, is poised for a revamp of its leadership panel if the Senate signs off on a three-nominee package that balances Republican and Democratic interests in an effort to avoid partisan pitfalls.

Two Republican nominees—Gibson Dunn lawyer Andrea Lucas and Labor Department official Keith Sonderling—have experience defending corporate clients like Ford Motor Co. against accusations of bias from women and minority workers, according to a Bloomberg Law analysis of their case work. But neither has litigated a discrimination claim on behalf of a worker, a reality that some legal observers said was concerning but consistent with past Republican nominees.

Democratic nominee Jocelyn Samuels, a civil-rights lawyer who heads a think tank on sexual orientation and gender-identity policy, has experience litigating labor and employment matters, and also worked in the federal government. But her stances on LGBT issues could motivate some Republicans to oppose her.

The three nominations, sent to the Senate on March 16, could give the EEOC its first full complement of five commissioners during the Trump administration by providing both Republicans and Democrats with a chance to claim wins.

Sen. Lamar Alexander (R-Tenn.), who heads the Senate panel vetting the nominations, wants to move quickly once the chamber returns from recess April 20. “Now that Jocelyn Samuels has been nominated, Senator Alexander plans to move all three nominees through the Committee as soon as possible,” a Republican aide on the Health, Education, Labor, and Pensions Committee said in a statement.

Republicans, by agreeing to Democratic requests to wait on Sonderling’s nomination last year because the White House hadn’t nominated someone for the Democratic opening, are now poised to further solidify the 2-1 GOP majority on the commission ahead of the presidential election.

GOP Commissioner Victoria Lipnic, who earlier this year announced she will depart the commission when her term ends in July, has sided with Democratic Commissioner Charlotte Burrows in a series of recent litigation and policy votes. Lucas was nominated to take Lipnic’s seat.

Comparing to Precedent

It isn’t unusual for EEOC commissioners to have prior experience that isn’t directly aligned with the agency’s mission, as long as they have a deep understanding of federal nondiscrimination law, said Ronald Cooper, the agency’s top lawyer under President George W. Bush.

A number of previous Republican commissioners, including Naomi Earp, Cari Dominguez, Leslie Silverman, and Constance Barker, either worked with or defended corporate clients before joining the agency, or worked in government. Dominguez, who isn’t a lawyer, was the agency’s chair for five years, until 2006.

Many past EEOC commissioners lacked prior worker-side litigation experience and took seriously their statutory duty to protect workers’ civil rights, said Adam Pulver, a lawyer for the consumer advocacy group Public Citizen, who worked for the Labor Department during the Obama administration.

“Given how scant some of the nominees’ resumes are, particularly Ms. Lucas’s, it is difficult to assess whether they will do so,” he said.

He added that there also is cause for concern because, under the Trump administration, nominees to lead regulatory and enforcement agencies “seem to be chosen based on their ideological opposition to regulation and enforcement as a broad matter.”

Ties to Labor Secretary

Lucas has practiced out of Gibson Dunn’s labor and employment group in Washington, D.C., for nearly a decade, the White House said, and has represented businesses before federal and state courts.

She has ties to Labor Secretary Eugene Scalia, who left Gibson Dunn to join the Trump administration in September 2019. Lucas and Scalia worked on a number of high-profile cases brought against Ford, including two class action lawsuits alleging sex harassment, race discrimination, battery, retaliation, and other workplace claims, according to a Bloomberg Law analysis.

One 2014 class action brought by workers in Chicago-area Ford facilities accused the manufacturer of being a “recidivist offender” that has “knowingly allowed sexual harassers, molesters and sex offenders to remain in the workplace to repeat their heinous acts on other women.” Workers couldn’t pursue those claims as a class, a federal judge ruled in August 2019.

Some legal observers said Lucas’s experience with complex labor and employment litigation would benefit her, if confirmed.

“If I were to name some of the most important qualities an EEOC commissioner should possess, they would include a deep knowledge and understanding of federal nondiscrimination policy and how the laws the EEOC enforces came to be,” said Carlton Fields shareholder Rae Vann, who served as a member of an EEOC task force studying workplace harassment.

She emphasized a commissioner should be able to “build bridges” with colleagues who may have different perspectives, “to ensure that the agency carries out its vital nondiscrimination mission fairly, capably, and efficiently.”

Feldblum Redux?

Samuels has extensive experience in government. She was director of the Office for Civil Rights at the Health & Human Services Department from 2014 through early 2017. She previously was an Obama appointee at the Justice Department’s Civil Rights Division, and also spent a decade as a senior policy attorney in EEOC’s Office of Legal Counsel.

Comparisons have been drawn between Samuels and the former Democratic Commissioner she would replace, Chai Feldblum, whose nomination for a new term was blocked in 2018 by some Republican senators who worried about her ability to balance LGBT rights and religious freedoms. Some of Samuels’ supporters are trying to differentiate between her and Feldblum, saying Samuels hasn’t waded into the conflict between LGBT rights and religious liberties.

But Samuels has spoken out in support of protecting LGBT workers’ rights, particularly as the U.S. Supreme Court is expected to rule this term on a trio of related cases. The Williams Institute, the think tank Samuels leads, filed two friend-of-the-court briefs in those lawsuits, advocating that Title VII of the 1964 Civil Rights Act should combat sexual orientation and gender-identity bias.

Samuels also penned an article for Ms. magazine last year, reiterating her stance, and saying Justice Neil Gorsuch, during Oct. 2019 oral arguments on the issue, “seemed to offer a ray of hope for the employees—acknowledging, consistent with his philosophy of reading statutes according to their terms, that Title VII means what it says.”

The EEOC and the Justice Department are currently divided over whether Title VII protections cover LGBT workers; the EEOC believes they do, but DOJ disagrees.

During her time leading HHS’s Office of Civil Rights, she dismissed complaints of discrimination brought by religious entities in a 2016 letter that claimed California can’t require private health insurance plans to cover abortions. She said they weren’t protected by the federal amendment they cited, which protects health-care entities from discrimination when they object to performing an abortion on religious or moral grounds. None of the entities made any religious or moral objections when they were told to alter their plans, she said.

She also directed efforts to ensure anti-discrimination clauses in the Affordable Care Act extended to transgender individuals seeking health care as well as abortions. That interpretation has since been halted by a federal judge.

Commissioner Burrows said Samuels’ time at the EEOC’s Office of Legal Counsel sets her up well to serve as a commissioner. “That office provides advice on some of the most difficult legal questions EEOC faces, so she knows the agency well,” she said in an email.

Government Experience

Sonderling is serving as deputy administrator of DOL’s Wage and Hour Division and has been with the department since 2017, after previously working for Florida-based law firm Gunster. While practicing in Florida, he primarily represented employers facing wage-and-hour lawsuits, but occasionally waded into the discrimination sphere. For example, he defended the managing agent of the Palm Beach Pops from allegations of sexual harassment and a hostile work environment. That lawsuit settled in 2011.

Sonderling also defended a Florida health-care system, the Medical Specialists of the Palm Beaches, from worker claims of disability discrimination. That case settled in 2013.

Since pivoting to a government role, he’s gained policy experience and overseen the Wage and Hour Division’s performance and budget. He also served as WHD’s acting chief for the first four months of 2019.

When Sonderling’s nomination was held up last year, several business groups such as the U.S. Chamber of Commerce and the National Retail Federation pushed for Senate leaders to find a way to expedite his confirmation. They said he “would bring a known and valuable asset to the Commission, as he is familiar with both the substance of the matters under EEOC’s jurisdiction, and how government operates.”

—With assistance from Jaclyn Diaz and Lydia Wheeler

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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