[Senate Hearing 115-794]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 115-794

                             NOMINATION OF
                         SHARON FAST GUSTAFSON
                        TO BE GENERAL COUNSEL OF
                          THE EQUAL EMPLOYMENT
                         OPPORTUNITY COMMISSION

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                                   ON

 EXAMINING THE NOMINATION OF SHARON FAST GUSTAFSON, OF VIRGINIA, TO BE 
     GENERAL COUNSEL OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

                               __________

                             APRIL 10, 2018

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


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          Committee ON HEALTH, EDUCATION, LABOR, AND PENSIONS
	  
	                    LAMAR ALEXANDER, Tennessee, Chairman
  MICHAEL B. ENZI, Wyoming		PATTY MURRAY, Washington
  RICHARD BURR, North Carolina		BERNARD SANDERS (I), Vermont
  JOHNNY ISAKSON, Georgia			ROBERT P. CASEY, JR., Pennsylvania
  RAND PAUL, Kentucky			MICHAEL F. BENNET, Colorado
  SUSAN M. COLLINS, Maine			TAMMY BALDWIN, Wisconsin
  BILL CASSIDY, M.D., Louisiana		CHRISTOPHER S. MURPHY, Connecticut
  TODD YOUNG, Indiana			ELIZABETH WARREN, Massachusetts
  ORRIN G. HATCH, Utah			TIM KAINE, Virginia
  PAT ROBERTS, Kansas			MAGGIE HASSAN, New Hampshire 
  LISA MURKOWSKI, Alaska			TINA SMITH, Minnesota	
  TIM SCOTT, South Carolina		DOUG JONES, Alabama                                 
	                                       
	                 David P. Cleary, Republican Staff Director
	           Lindsey Ward Seidman, Republican Deputy Staff Director
	                   Evan Schatz, Democratic Staff Director
	               John Righter, Democratic Deputy Staff Director
	  
                                                        
                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                        TUESDAY, APRIL 10, 2018

                                                                   Page

                           Committee Members

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, 
  Labor, and Pensions, Opening statement.........................     1
Murray, Hon. Patty, Ranking Member, a U.S. Senator from the State 
  of Washington, Opening statement...............................     3

                                Witness

Gustafson, Sharon Fast, J.D., Nominee to be General Counsel of 
  the Equal Employment Opportunity Comission, Arlington, VA......     5
    Prepared statement...........................................     7

 
                             NOMINATION OF
                         SHARON FAST GUSTAFSON
                        TO BE GENERAL COUNSEL OF
                          THE EQUAL EMPLOYMENT
                         OPPORTUNITY COMMISSION

                              ----------                              


                        Tuesday, April 10, 2018

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:40 p.m. in room 
SD-430, Dirksen Senate Office Building, Hon. Lamar Alexander, 
Chairman of the Committee, presiding.
    Present: Senators Alexander [presiding], Cassidy, Scott, 
Murray, Casey, Baldwin, Murphy, Warren, Kaine, Hassan, and 
Smith.

                 OPENING STATEMENT OF SENATOR ALEXANDER

    The Chairman. Good morning.
    The Senate Committee on Health, Education, Labor, and 
Pensions will please come to order.
    Today, we are considering the nomination of Sharon 
Gustafson to serve as General Counsel of the Equal Employment 
Opportunity Commission.
    Senator Murray and I will each have an opening statement, 
then I will introduce Ms. Gustafson. After her testimony, 
Senators will each have 5 minutes of questions. I will 
recognize Senator Scott first for that.
    The Equal Employment Opportunity Commission is important to 
our Nation's workers. It was established by the Civil Rights 
Act of 1964. It is charged with protecting employees from 
discrimination at work through enforcement of equal employment 
opportunity laws.
    There are currently three Senate confirmed vacancies at the 
EEOC; two Commissioner seats and the General Counsel. This 
Committee held a hearing on Janet Dhillon and Daniel Gade to 
serve as commissioners on September 19, 2017 and approved their 
nominations on October 18, 2017. They have been waiting nearly 
6 months to be confirmed by the Senate.
    Today, we are holding a hearing on the General Counsel 
nominee, who would have another important role at the EEOC. If 
confirmed, Ms. Gustafson will be in charge of ensuring 
compliance with well-established antidiscrimination statutes, 
including Title VII of the Civil Rights Act, the Equal Pay Act, 
the Age Discrimination in Employment Act, the Americans with 
Disabilities Act, and the Genetic Information Nondiscrimination 
Act.
    When a worker believes they have been discriminated 
against, they may file a charge of discrimination with the 
EEOC. The agency will evaluate the case and make a 
determination about whether it believes unlawful discrimination 
has taken place. If the charge is not resolved, the Commission 
may file a lawsuit in Federal Court, as it did 184 times last 
fiscal year.
    Through a delegation of power from the Commission to the 
General Counsel, Ms. Gustafson will have broad authority to 
bring these cases to court. If the EEOC decides not to 
litigate, the worker can still sue in Federal Court.
    Many charges are brought each year, and the Commission has 
struggled for a long time with a backlog of cases. At the end 
of Fiscal Year 2016, the EEOC had more than 73,000 outstanding 
charges of discrimination.
    The Commission has made some progress. The EEOC received an 
additional 84,000 charges during the last fiscal year and 
reduced the backlog to 61,000 total charges pending. 
Unfortunately, the last General Counsel, appointed by President 
Obama, made poor decisions in pursuing cases and suffered 
embarrassing losses in the courts as a result of those 
decisions.
    For example, in one case, the EEOC alleged that a company's 
use of credit background checks led to race discrimination. A 
three judge panel on the Sixth Circuit Court of Appeals stated, 
``EEOC brought its case on the basis of a homemade methodology, 
crafted by a witness with no particular expertise to craft it, 
administered by persons with no particular expertise to 
administer it, tested by no one, and accepted only by the 
witness himself.''
    The EEOC continued to use the same faulty witness testimony 
in another case, and eventually lost that case, too. In that 
case, a unanimous three judge panel on the Fourth Circuit Court 
of Appeals found that there were, ``An alarming number of 
errors and analytical fallacies in the expert witness's 
reports, making it impossible to rely on any of his 
conclusions.''
    I hope Ms. Gustafson will do a better job overseeing the 
EEOC's litigation and that we do not see these types of rebukes 
under her leadership.
    Her impressive qualifications lead me to believe she will 
do a better job. After graduating with honors from Georgetown 
University Law Center, she spent 5 years practicing labor and 
employment law at Jones Day.
    Since 1995, she has represented both employees and 
employers, and has practiced before the EEOC and the Federal 
courts, including winning legal protections for pregnant 
workers nationwide at the U.S. Supreme Court in ``Young v. 
United Parcel Service''.
    In 2016, the Metropolitan Washington Employment Lawyers 
Association awarded her its Lawyer of the Year Award, quote, 
``In recognition of outstanding dedication to Civil Rights, 
Equality, and Justice.''
    Ms. Gustafson was nominated on March 20 of this year. On 
March 29, 2018, the Committee received her Office of Government 
Ethics paperwork, including her public financial disclosure and 
ethics agreement. Based on these documents, the OGE determined 
that Ms. Gustafson is, quote, ``In compliance with applicable 
laws and regulations governing conflicts of interest.'' The 
Committee also received Ms. Gustafson's HELP application, this 
Committee's application, on March 29, 2018.
    I hope once this Committee approves Ms. Gustafson's 
nomination, the full Senate will quickly vote on her 
nomination, as well as the two Commissioners' nominations who 
are awaiting consideration on the Senate floor, so they can 
begin their duties protecting workers.
    Senator Murray.

                  OPENING STATEMENT OF SENATOR MURRAY

    Senator Murray. Well, thank you very much, Chairman 
Alexander.
    Thank you, Mrs. Gustafson, for being here and your 
willingness to serve your country in such a critical role.
    But before we hear about your experience, and the role of 
the Equal Employment Opportunity Commission, I would like to, 
Mr. Chairman, talk a bit about a topic at the forefront of our 
national conversation.
    Sexual harassment and assault in the workplace are nothing 
new. They are pervasive, systemic, and ongoing in almost every 
workplace in the country. But for the first time in decades, 
women and men are coming forward and sharing their stories of 
harassment and assault. Finally, these men and women are 
beginning to be listened to and believed. And finally, many of 
these predators, who took advantage of their position of power, 
are being held accountable for their actions. These are 
important first steps, but our work is nowhere near done.
    Women in industries outside the spotlight, women who work 
in low wage industries--including food service, hospitality, 
farm work, retail--do not have a voice in this conversation. 
Far too many women who come forward are still not believed, and 
serial offenders are still being given the benefit of the doubt 
no matter how many women come forward, including our own 
President. Moving forward, we should be working to prevent 
sexual harassment across the country. Not just punishing those 
with years-long records of abuse.
    I am very proud that the female Senators on both sides of 
the aisle here are taking this issue seriously. There have been 
a number of steps taken, and bills introduced, to combat and 
prevent sexual harassment, both here in Congress, and in 
workplaces across the country.
    However, it has been really unfortunate to see a lack of 
urgency, or action, from Republican leaders here in Congress. 
Leader McConnell has yet to allow a vote on legislation to 
reform how sexual harassment claims are handled here in 
Congress.
    Chairman Alexander, as you know, the Democratic Members of 
this Committee sent us a letter, more than 10 weeks ago, 
requesting a hearing on workplace sexual harassment. But 
Members of this Committee have yet to hear on when we will be 
able to hear from women and men on how harassment has impacted 
their lives at their jobs and beyond.
    It has been almost four decades since this Committee held a 
hearing on sexual harassment in the workplace. And I think 
scheduling this hearing will make it clear this is an issue 
this Committee takes seriously and is focused on. So I hope, 
Mr. Chairman, that you will work with us and we can get that 
scheduled.
    Now, Mrs. Gustafson, thank you, again, for being here.
    From our perspective, from day one, President Trump has 
rolled back worker protections and made it easier for 
corporations to take advantage of and discriminate against 
their workers. He has made disparaging comments and 
discriminated against immigrants, Muslims, Mexicans, women, 
transgender individuals, people with disabilities, and more. It 
is the role of the Equal Employment Opportunity Commission to 
protect workers from that type of discrimination in the 
workplace.
    Given the President's own views on almost anyone who is 
different than him, it is critical today that the EEOC remains 
independent and that those appointed to the Commission make it 
clear they do not share President Trump's views on race, civil 
rights, women, people with disabilities, or the LGBTQ 
community.
    Mrs. Gustafson, you mention in your testimony that you have 
represented diverse clients. But I want to express how deeply 
concerned I am about your decisionmaking as the top lawyer for 
the Commission and how it could impact members of the LGBTQ 
community.
    I noted that you are a member of multiple organizations 
that believe it is appropriate to discriminate against people 
on the basis of their sexual orientation or gender identity. So 
I am concerned that you will not be willing to vigorously bring 
suits to keep workplaces free of discrimination, particularly 
against LGBTQ individuals.
    I am very concerned you will not forcefully defend the 
rights of LGBTQ employees, and others, when business owners try 
to use their personal religious beliefs as an excuse to 
disregard their employees' civil rights.
    Additionally, I note that you have extreme views on women's 
constitutionally protected right to reproductive health 
services. So I do hope to hear from you today that you will not 
let those personal views cloud judgment at the EEOC.
    I note that you have devoted your career to representing 
people who have been the victims of discrimination on the basis 
of sex, race and disability, and that you have helped to break 
new ground in protecting pregnant workers from discrimination.
    But I also see that you have spent your career as the sole 
lawyer in your practice. So I am concerned with your lack of 
management experience, as you will now be responsible for 
managing, and coordinating, and directing hundreds of 
experienced lawyers in 15 regional offices.
    So I hope today in your testimony, and in response to 
questions, you will be able to address these issues thoroughly.
    I believe workers should be able to do their jobs without 
fear of discrimination. The fact that the Trump administration 
will not stand up for workers makes it even more critical that 
our Nation's civil rights enforcement agency is dedicated to 
equal employment opportunity, and that it is strong, and 
independent, and effective.
    So thank you, again, for being here today.
    The Chairman. Thank you, Senator Murray.
    I will introduce the witness in a minute.
    Senator Murray mentioned the urgency of dealing with civil 
rights issues and employment discrimination. Maybe I could ask 
her if she would work with the Democratic leader to see what 
she could do about getting a time agreement for confirmation on 
Janet Dhillon and Daniel Gade to serve as commissioners of the 
Equal Employment Opportunity Commission.
    This Committee approved their nominations October 18, 2017 
and they are sitting there, held up by Democrats who do not 
want us to go forward.
    So it seems to me, one strong way to deal with 
discrimination on civil rights is to fully staff the Equal 
Employment Opportunity Commission with Commissioners and with 
the General Counsel, so we could have a prompt time agreement 
on both those Commissioners and the General Counsel once she is 
confirmed. That would be one way to deal with the urgency of 
the need for civil rights.
    I am pleased to welcome our nominee, Sharon Gustafson. I 
thank her for her willingness to serve our country.
    I also welcome your family. I see them on the front row, 
and you are welcome to introduce them yourself, if you would 
like. I understand your husband and five of your nine children, 
as well as other family members, are here today.
    As I mentioned in my opening statement, Ms. Gustafson has 
been practicing employment law for 28 years. In 1995, she 
opened a solo practice in Arlington, Virginia and has been 
advising employees and employers through her practice ever 
since.
    She is licensed to practice in Virginia, Maryland, and the 
District of Columbia.
    Ms. Gustafson, you may begin your testimony.

STATEMENT OF SHARON FAST GUSTAFSON, J.D., NOMINEE TO BE GENERAL 
    COUNSEL OF THE EQUAL EMPLOYMENT OPPORTUNITY COMISSION, 
                         ARLINGTON, VA

    Ms. Gustafson. Thank you, Chairman Alexander, Ranking 
Member Murray, and Members of the Committee.
    I am grateful to the President for nominating me to the 
position of General Counsel of the Equal Employment Opportunity 
Commission, and I am honored to appear before you today to 
answer your questions.
    I am here with my husband, David Gustafson. And as Senator 
Alexander noted, five of our nine children: Adam Gustafson, 
Story Jones, Garrett Gustafson, Sonnet Gustafson, Sigrid 
Gustafson, some well-loved children-in-law, and my 
granddaughter, Stella Gustafson.
    Our Declaration of Independence affirms that all of us are 
created equal and are endowed by our Creator with inalienable 
rights: life, liberty, and the pursuit of happiness. For most 
of us, that pursuit requires a paying job. I am grateful for a 
Constitution that says we all have, ``the equal protection of 
the laws.'' I am grateful that civil rights are a bipartisan 
issue. I am grateful to live under, ``a Government of laws and 
not of men.''
    Before law school, I worked--sometimes for subminimum 
wage--as a waitress, a janitor, a telephone operator, a 
secretary, a paralegal, and a daycare provider. I find it easy 
to identify with workers at every type of employment, and as a 
lawyer, it has been my honor to help them protect their civil 
rights in the workplace.
    In 1990, my first assignment as a summer associate at a law 
firm was to write an article explaining for our clients the 
newly enacted Americans with Disabilities Act. For weeks, I 
poured over the statute and the legislative history, and I was 
hooked on employment law. I revised my schedule for my last 
year at Georgetown Law School to take labor and employment law 
classes, and I have been practicing employment law ever since.
    My clients have reflected our American melting pot. They 
have been Black, White, Latino, Asian, Christian, Muslim, 
Jewish, male, female, gay, straight, able-bodied, and disabled.
    In addition to the many employees I have represented over 
the years, I have also represented employers, some who were 
wrongly accused of discrimination with respect to the civil 
rights statutes, and others who were liable for past 
misbehavior, but were now taking action to make things right.
    Most of the time, most of us in America do a pretty good 
job of treating each other with respect. But civil rights 
statutes were enacted because sometimes those in positions of 
power prey on the relatively powerless or discriminate against 
those who are unlike themselves. In moments of weakness, anger, 
fear, or ignorance, prejudice and discrimination come out.
    I have dedicated my career to listening to peoples' stories 
and to identifying valid claims, wrongs that cry out to be 
righted. I have learned to ferret out dishonest or meritless 
claims, because my livelihood depended on it, and because both 
employer and employee deserve fair application of laws.
    Litigation is a necessary tool. Without it, our civil 
rights statutes would be meaningless lists of aspirations. But 
litigation is an expensive, imperfect tool, often a blunt 
instrument, and resolution of disputes without litigation is an 
important part of the lawyer's job, just as it is an important 
part of the EEOC's function.
    Consequently, I have resolved, without litigation, many 
times the number of cases that I have litigated, sometimes in 
the mediation room at the EEOC or at state and local human 
rights agencies.
    The EEOC surely benefits from having a variety of 
backgrounds and perspectives represented in its Commission and 
staff. As is evident, my own experience so far in employment 
discrimination matters has not been to sit in a high seat, 
pulling the levers of power. Rather, I have been a solo lawyer 
most often representing the employee of modest means or the 
small business employer.
    My seat has been in a mediation room, trying to invoke the 
agency's remedies to help someone get his job back, to help a 
pregnant woman keep her job, to get compensation for a wrongful 
termination, or to preserve the reputation of an employer 
wrongly accused. I think of my work as having been retail, 
street-level civil rights litigation. If confirmed, I believe 
my experience would be a wholesome addition to the mix at the 
EEOC.
    The role of the General Counsel is to advise the client 
agency, to manage its litigation program, and to best use the 
tool of litigation to accomplish the mission of the EEOC. I 
believe in that mission, and if confirmed, I would do my best 
to fulfill it.
    Thank you.
    [The prepared statement of Ms. Gustafson follows:]
               prepared statement of sharon f. gustafson
    Thank you, Chairman Alexander, Ranking Member Murray, and Members 
of the Committee.

    I am grateful to the President for nominating me to the position of 
General Counsel of the Equal Employment Opportunity Commission, and I 
am honored to appear before you today to answer your questions.

    I am here with my husband, David Gustafson, and with four of our 
nine children: Adam Gustafson, Story Jones, Sonnet Gustafson, and 
Sigrid Gustafson.

    Our Declaration of Independence affirms that all of us are created 
equal and are endowed by our Creator with inalienable rights--life, 
liberty, and the pursuit of happiness. For most of us, that pursuit 
requires a paying job. I am grateful for a Constitution that says we 
all have ``the equal protection of the laws.'' I am grateful that civil 
rights is a bipartisan issue. I am grateful to live under ``a 
Government of laws and not of men.''

    Before law school, I worked--sometimes for sub-minimum wage--as a 
waitress, a janitor, a telephone operator, a secretary, a paralegal, 
and a daycare provider. I find it easy to identify with workers at 
every type of employment, and as a lawyer it has been my honor to help 
them protect their civil rights in the workplace.

    In 1990, my first assignment as a summer associate at the Jones, 
Day law firm was to write an article explaining for our clients the 
newly enacted Americans with Disabilities Act. For weeks I pored over 
the statute and the legislative history, and I was hooked on employment 
law. I revised my schedule for my last year at Georgetown Law School to 
take labor and employment law classes, and I've been practicing 
employment law ever since.

    My clients have reflected our American melting pot. They've been 
Black, White, Latino, Christian, Muslim, Jew, male, female, gay, 
straight, able-bodied, and disabled.

    In addition to the many employees I have represented over the 
years, I have also represented employers--some who were falsely accused 
of discrimination with respect to those statutes, and others who were 
liable for past misbehavior but were now taking action to make things 
right. Civil rights statutes were enacted because sometimes those in 
positions of power prey on the relatively powerless, or discriminate 
against those who are unlike themselves. In moments of weakness, anger, 
fear, or ignorance, prejudice and discrimination come out. I have 
dedicated my career to listening to people's stories and to identifying 
valid claims, wrongs that cry out to be righted. I have learned to 
ferret out dishonest or meritless claims, because my livelihood 
depended on it, and because both employer and employee deserve fair 
application of laws.

    Litigation is a necessary tool. Without it, our civil rights 
statutes would be meaningless lists of aspirations. But litigation is 
an expensive, imperfect tool, often a blunt instrument, and resolution 
of disputes without litigation is an important part of the lawyer's 
job, just as it is an important part of the EEOC's function. 
Consequently, I have resolved, without litigation, many times the 
number of cases that I have litigated--sometimes in the mediation room 
at the EEOC or at state and local Human Rights agencies.

    The EEOC surely benefits from having a variety of backgrounds and 
perspectives represented in its Commission and Staff. As is evident, my 
own experience so far in employment discrimination matters has not been 
to sit in a high seat, pulling the levers of power; rather, I have been 
a solo lawyer most often representing the employee of modest means or 
the small business employer; and my seat has been in a mediation room, 
trying to invoke the agency's remedies to help someone get his job 
back, to get compensation for a wrongful termination, or to preserve 
the reputation of an employer wrongly accused. I think of my work as 
having been retail, street-level civil rights litigation.

    If confirmed, I believe my experience would be a wholesome addition 
to the mix at the EEOC.

    The role of the General Counsel is to advise the client agency, to 
manage its litigation program, and to best use the tool of litigation 
to accomplish the mission of the EEOC. I believe in that mission; and 
if confirmed, I would do my best to fulfill it.

    Thank you.
                                 ______
                                 
    The Chairman. Thank you, Ms. Gustafson, and thanks to you 
and your family for being here today.
    We will now begin a 5 minute round of questions. We will 
begin with Senator Scott.
    Senator Scott. Thank you, Mr. Chairman.
    Ms. Gustafson, in your introduction, you did a pretty good 
job of talking about the successful qualities that we admire 
about you back at home in South Carolina. We are very proud of 
who you are and what you represent. You have both had the 
privilege and the opportunity to advocate on behalf of 
employers and employees, and you did a fine job.
    David, thank you for your service as well. It seems like 
public service is in your DNA.
    As you may know, there is a lot of noise on the Hill today 
about Facebook with their CEO, Mark Zuckerberg, testifying 
before the Senate. I want to talk about Facebook and a 
conversation, I think, needs to be had somewhere. I am not on 
the Judiciary. I am not on the Commerce Committee. So this will 
be where I have that conversation, and it is about 
discrimination.
    Two Black, Conservative women, Lynnette Hardaway and 
Rochelle Richardson, better known as Diamond and Silk, built a 
substantial following on Facebook over the past few years.
    Recently Facebook--a company where, at least in terms of 
their senior leadership, they would have to look up the 
definition of diversity because they have none--came to the 
conclusion that their policy team, and I quote, ``Their policy 
team has come to the conclusion that your content and brand has 
been determined unsafe to the community.'' This is Facebook 
talking to Diamond and Silk suggesting that their content is 
unsafe for the community.
    What is it about two Black women espousing their support of 
the President of the United States that makes them unsafe for 
the community?
    They are not bullies. They are not violent. They are not 
inciting riots. I do not always agree with their methodology or 
even some of their statements, but I do not have to agree with 
them.
    That is the beauty of the First Amendment. Is it not?
    Tell me, if they were African-American liberals espousing 
their views about a liberal political figure, would they, too, 
be considered unsafe?
    I do not think they would.
    This would appear to be the height of liberal hypocrisy. 
Facebook's support of freedom of speech seems to only include 
liberal speech. Facebook has decided that they are within their 
rights to censor certain speech.
    Where is the outcry that these two African-American 
Conservatives have been censored?
    Now, some people might say that Facebook is a private 
company, and that is true. But Facebook is no ordinary 
technology company. In fact, it is no ordinary company 
regardless of the industry.
    Tens of millions of Americans share huge amounts of their 
personal lives on this platform. A platform, I might add, that 
often defends itself using the First Amendment, but does not 
seem to care about those policies for their users.
    Do not get me wrong. If you are Russians trying to 
influence the election, kick them off. But they did not.
    If you are inciting hate and violence, kick them off. 
Absolutely.
    But if you are two African-American Conservative women, 
sharing your somewhat colorful, but ultimately harmless 
opinions, I would like to think that is okay for the community.
    We put restrictions on banks deemed to big too fail and 
other large industries, but these huge companies are now 
deciding that they are arbiters of Americans' constitutional 
rights.
    Last week, it was Citigroup deciding that they do not like 
the Second Amendment, so they are going to punish business 
owners. And now we have Facebook deciding that Diamond and Silk 
do not have the right to speak and the right to their First 
Amendment. If this were an office environment, I think we would 
all be appalled.
    I just want to know the answer to Diamond and Silk's own 
question, and this is their question, a simple question: what 
is unsafe about two Black women supporting the President, 
Donald J. Trump?
    Thank you. Thank you, Mr. Chairman.
    The Chairman. Do you have any comment on that, Ms. 
Gustafson?
    Ms. Gustafson. The only comment I would like to make is 
that I certainly believe in the First Amendment and one of the 
great things about our country is that we have freedom of 
speech no matter how liberal we are or how conservative we are. 
It is part of the great American conversation.
    The Chairman. Thank you, Senator Scott.
    Senator Murray.
    Senator Murray. Well, again, thank you so much for being 
here.
    For several years, the EEOC has vigorously defended LGBTQ 
workers from harassment and discrimination in the workplace. 
The EEOC has said the Civil Rights Act forbids employment 
discrimination because of someone's gender identity or sexual 
orientation.
    In fact, in an important case earlier this year, the EEOC 
filed a brief supporting LGBTQ workers, who won that case, even 
as the Trump administration and Attorney General Sessions 
argued on the other side.
    So as I mentioned in my opening statement, I have some 
concerns about your membership in some organizations that do 
discriminate against individuals based on their sexual 
orientation and gender identity.
    I wanted to ask you, will you commit to enforcing the Civil 
Rights Act as the EEOC currently does and protecting workers 
who are discriminated against based on sexual orientation or 
gender identity?
    Ms. Gustafson. Thank you, Senator Murray.
    As the Senate is aware, the make up of the EEOC is not 
static. Their positions change from time to time. I have no way 
of knowing what the Commission will hold at any point in the 
future. So I cannot commit to supporting a position of 
yesterday.
    But I can tell the Senate that I will commit to cooperating 
with the EEOC, whatever their positions are, and not doing 
anything to contradict those positions.
    Senator Murray. Well, if they decide not to follow current 
policy, but do not set a new policy, will you continue to bring 
suits on behalf of workers across the United States who have 
been discriminated against?
    Ms. Gustafson. I would have to look at every charge that 
was filed, every charge that came to me with a suggestion for 
litigation, and look at the facts and the evidence of that 
case. Compare it to the law as it currently stood on the day 
that it came before me, and make the best decision that I could 
then about whether or not we should file that case based on the 
current law.
    Senator Murray. Some companies have tried to use the 
Religious Freedom Restoration Act, or RFRA, to allow them to 
discriminate against their employees, for example, a 
transgender employee, because they feel following our civil 
rights laws are inconsistent with their personal religious 
beliefs.
    Do you believe that private corporations should be able to 
use RFRA that way?
    Ms. Gustafson. I have never had a RFRA case. No one has 
ever come to me with that scenario, so I have not researched 
that issue.
    I do understand the broad outlines of the issue. I 
understand that under RFRA, the Government may burden the 
exercise of religion only in situations where there is a 
compelling Government interest, and it is the least restrictive 
means available.
    As to any particular case, I would have to look at the 
facts of that case and the evidence, and compare it to the law 
to have an opinion about how it applied to those facts.
    Senator Murray. Well, you do know that the EEOC faced that 
very question in the past year and forcefully argued against 
RFRA being used to ignore civil rights laws. So I just wanted 
to make sure you were aware of that.
    Ms. Gustafson. Thank you.
    Senator Murray. Over the last year, a lot of brave men and 
women, women and men, in all types of jobs, have come forward 
to share their stories of sexual harassment and discrimination 
in the workplace. The experiences they have shared made it 
clear that we all have to do a lot more to make sure that 
people can speak up to stop harassment without retaliation, and 
with the confidence that they will be taken seriously.
    Led by Commissioners Feldblum and Lipnic, the EEOC has 
taken strong, bipartisan steps forward on sexual harassment by 
issuing a report and recommendations in 2016 and draft 
enforcement guidance last year.
    Now, the guidance has not yet been finalized because it is 
waiting for review and approval by the White House. I hope that 
comes very quickly. Those are good steps, but it is clear that 
a lot more needs to be done.
    I am very disappointed, again, by what I have said that we 
have not had a hearing and lack of action on this Committee.
    But I wanted to ask you, do you think modernizing our laws 
and policies can help prevent and address workplace sexual 
harassment?
    Ms. Gustafson. Thank you for the question.
    I can tell you from my experience in practicing in 
employment law for 27 years that sexual harassment is a major 
problem in the workplace, and it needs to be addressed.
    The way, it seems to me, that we can best address it is for 
the EEOC to file as many of these cases as it can where it has 
good, valid claims. I think if employers see that the EEOC is 
really serious about bringing these individual claims and 
bringing them as frequently as it can bring them, and do a good 
job, that may help. But it is not a problem that is going away. 
I hope that we will make more progress.
    I think we already have made some progress, but the problem 
is not going away, and it is because you have new workers 
coming in to the workplace all the time. There is something 
about human nature that tempts people to mistreat others in 
this way from time to time. And so, I am in favor of things 
that can reduce sexual harassment in the workplace.
    I think one of the most important things that can be done 
is that we can get serious about bringing cases against 
employers who retaliate against an employee who has a sexual 
harassment complaint. Retaliation in the workplace is a big 
problem.
    As to whether there are any new laws that should be passed, 
I am not awar3e of legislation that is pending about that or 
anything, and I do not have a personal opinion. I am not sure 
what you have in mind.
    But I believe under the laws that we currently have, we 
could do a lot more----
    Senator Murray. Enforcing them.
    Ms. Gustafson ----to address the problem with enforcement, 
yes.
    Senator Murray. Okay. Thank you very much. Really 
appreciate that.
    The Chairman. Thank you, Senator Murray.
    Ms. Gustafson, let me talk with you about wellness in the 
workplace. It looks like we have conclusively proved that after 
8 years, we cannot agree on changing a sentence in the 
Affordable Care Act, but there is one area in the Affordable 
Care Act on which there was broad, bipartisan agreement and 
that was workplace wellness programs.
    The Obama administration, in three of its agencies, 
implemented the Affordable Care Act provisions on workplace 
wellness with constructive regulations that many companies 
chose to try to follow.
    We have had hearings here on healthcare costs that have 
reminded us--witnesses from the Cleveland Clinic, Mayo Clinic, 
other places--that perhaps the single, best way we could reduce 
overall healthcare costs was to have a healthy lifestyle in 
this country; that tens of billions of dollars could be saved, 
as well as with lives extended.
    We know that 50 to 60 percent of Americans get their health 
insurance at the workplace.
    Now the EEOC, despite the consensus in Congress and the 
support of the President and his three agencies, brought a 
lawsuit against Honeywell in its implementation of the 
regulations put out by the Obama administration, and issued a 
couple of regulations trying to interpret those, and their 
relationship to the Genetic Information Nondiscrimination Act 
and to the Americans with Disabilities Act.
    The long and short of it was the lawsuit was dismissed and 
the regulations were overturned. And so, now we are back at 
square one.
    So as counsel to the Commission, if you were confirmed and 
you knew that under the Affordable Care Act, there was broad 
consensus that we would like to encourage wellness in the 
workplace, and that both the Obama administration and the Trump 
administration wanted to do that, how would you approach that?
    What advice would you give to employers who may be sitting 
out there wondering if they move ahead with workplace programs 
that they might run the risk of a lawsuit from the EEOC, or a 
new regulation, or a guidance that would overturn what they had 
set to do?
    I, for one, think this is extraordinarily important because 
I do not think a tactic for encouraging reduction of healthcare 
costs, and longer lives, and giving incentives to workers in 
the workplace to lead a healthy lifestyle.
    Ms. Gustafson. Thank you, Senator Alexander.
    On the wellness issue, I will admit, I have not had a 
wellness case. Nobody has come to me and said, ``I think I have 
been discriminated against in the workplace because of the 
wellness program that my employer has. Can you help me with 
it?''
    I know about it from reading the paper. I know what most 
laypeople know about it. I have looked into it a little bit 
more, since my nomination was announced just 10 days ago, but I 
am far from expert on it.
    I do know that wellness is a good thing, reduction of 
healthcare costs is a good thing, and I see that the issues 
with the incentive program and voluntariness, whether it is 
really voluntary, I see the privacy issue. I see that these are 
all reasonable concerns that people have.
    I see the importance of employers knowing the rules of the 
road before they set up their program. So if they are really 
trying to comply with the law, they will know what the law is 
and they will not have a problem complying with it.
    But this is a policy that is set by the Commission, not by 
the General Counsel. It will be my obligation, if I am 
confirmed to this position, to get up to speed on it, and I am 
sure I will be able to, and to be able to talk intelligently 
with the Commission about it, to the extent that they want my 
advice, to give them that.
    I think the fact that we have bipartisan support about so 
much of this is good. We should seize it and make as much 
progress as we can, but we have to look at the issues 
carefully, and I am not able to do that today. But I commit to 
getting up to speed and being able to do it in the future.
    The Chairman. Well, thank you. Your role could be very 
important because as the Commissioners consider this, they may 
be looking for ways to avoid the same legal problems that 
caused the EEOC's lawsuit to be dismissed and two of its 
regulations to be overturned. And so, your advice could be 
important.
    What we heard in our hearing, to put it generally, from 
witnesses, was that they did not seem to have that much concern 
about the interaction of the Americans with Disabilities Act. 
They might have more concern about the privacy issues that came 
up, and having good, competent legal advice might help the 
Commissioners do a better job of pursuing this policy that had 
such broad support in the Affordable Care Act from both 
Republicans and Democrats.
    Senator Kaine.
    Senator Kaine. Thank you, Mr. Chair.
    Ms. Gustafson, congratulations on your nomination to this 
important position.
    In the last paragraph of your written testimony, I was 
listening carefully, you say, ``The role of the General Counsel 
is to advise the client agency, to manage its litigation 
program, and to best use the tool of litigation to accomplish 
the mission of the EEOC. I believe in that mission, and if 
confirmed, I would do my best to fulfill it.''
    How would you describe to me that mission of the EEOC that 
you believe in?
    Ms. Gustafson. The mission of the EEOC is to maximize 
compliance with the laws that the EEOC has the jurisdiction to 
enforce: Title VII, the Equal Pay Act, the Age Discrimination 
in Employment Act, the Americans with Disabilities Act, GINA, 
all of those laws.
    If I were confirmed to this position, it would be my goal 
to enforce all of those laws over all of the country. I would 
be looking at both the breadth of the statutes and the breadth 
of the country in trying to find good cases that could be 
brought in all of those different areas.
    Senator Kaine. Based on your lengthy experience as an 
employment lawyer, do you ever see a circumstance under which 
an employment action taken against somebody because they were 
LGBT would be consistent with the mission of the EEOC as you 
understand it?
    Ms. Gustafson. I am not sure I understand your question. 
Would you repeat it for me?
    Senator Kaine. If an employer takes an action against an 
employee because of their LGBT status, do you see that as 
consistent with the mission that you have pledged to fulfill?
    Ms. Gustafson. Senator Kaine, I would like to see 
workplaces where people are judged based on nothing but their 
ability to do their jobs. I mean, that is the way I think that 
it should work.
    Senator Kaine. This is not a matter of your personal 
opinion having been a practitioner in the field.
    So you would agree with me that someone should not be able 
to be discriminated against because of their LGBT status, 
correct?
    Ms. Gustafson. I do not know what case you have in mind. I 
know there are----
    Senator Kaine. I am not asking about a case.
    Ms. Gustafson. Okay.
    Senator Kaine. I am asking about your commitment, as you 
described it----
    Ms. Gustafson. Yes.
    Senator Kaine ----to a workplace where people are judged 
based upon the work that they do, and they cannot be 
discriminated against, for purposes of this question, because 
of their LGBT status.
    Ms. Gustafson. My commitment is to enforce the law, and as 
the Senate is aware, the law is in flux in this area. We have--
--
    I feel like I am being asked a yes or no question to a very 
complicated issue.
    Senator Kaine. What do you think the law should be?
    Ms. Gustafson. We have jurists all over the country, well-
intentioned, very intelligent jurists working on these issues, 
and wrestling with them, and writing lengthy opinions, and 
lengthy dissents.
    Senator Kaine. Do you have an opinion having practiced law 
in this area for your entire professional career whether 
someone should be able to be lawfully discriminated against or 
not because of their LGBT status?
    Ms. Gustafson. I would like to see a workplace where nobody 
is judged based on any factor other than their ability to do 
the job.
    Senator Kaine. Do you have an opinion about whether someone 
can be discriminated against based on their LGBT status and 
that would be consistent with or in violation of the Title VII 
laws?
    Ms. Gustafson. I would have to see the facts of the case, 
and the law that we were trying to enforce, and I would compare 
the facts and the evidence against the statute.
    Senator Kaine. Let me give you a fact. Someone is 
terminated purely because the employer concludes that they are 
LGBT and does not want to have them at the workplace for that 
reason.
    Do you believe that is consistent with or inconsistent with 
the laws of this country and the mission that you pledge to 
fulfill in your written testimony?
    Ms. Gustafson. Well, it looks to me like the way that the 
law is right now, it depends on what Circuit you are in.
    It would be very nice if we had a simple decision either 
because the Congress had made it clear to us in the statute or 
because the Supreme Court made it clear to us in a decision.
    Senator Kaine. I understand that there is a split in the 
Circuits. I understand that there is a split between current 
EEOC practice and a position being taken by the Department of 
Justice in an amicus brief that they filed in a case.
    What is your personal opinion about whether someone being 
discriminated against is in accord with or violating the civil 
rights laws that you are pledging to fulfill?
    Ms. Gustafson. I do not think my personal opinion is 
relevant because if I get confirmed to this position----
    Senator Kaine. I think I get to decide whether it is 
relevant. You are asking me to vote for your confirmation.
    Ms. Gustafson. I understand, I understand. But I am just 
saying, I think that if I am confirmed, it will not be to 
enforce my personal opinion on anything, but rather, to apply 
the law and enforce the law. And right now----
    Senator Kaine. Let me just conclude this way.
    Will you agree with me that the law should not allow 
someone to be discriminated against based on their LGBT status 
in workplaces in this country?
    Ms. Gustafson. I am not in favor of that kind of 
discrimination, but I think Congress has the right to pass the 
laws that it believes that the people want passed. We have 
government by the consent of the governed.
    I think that Congress has a right to figure out what it is 
that the governed want and to pass those laws, and whatever 
they are, if I am confirmed, I will enforce them.
    Senator Kaine. I understand that. But as somebody who has 
practiced in this area, I suspect you have an opinion.
    Well, no further questions. Thank you.
    The Chairman. Thank you, Senator Kaine.
    Senator Smith.
    Senator Smith. Thank you, Chair Alexander and Ranking 
Member Murray.
    Ms. Gustafson, welcome. Thank you for your willingness to 
serve and also thank you to your family for being here today.
    I would like to ask you, if I could, about the question of 
arbitration and mandatory arbitration.
    Our court system and laws are designed to give victims of 
discrimination the opportunity to seek a remedy in a fair and 
transparent venue. Yet, we have seen, increasingly commonly, 
that employers are including these binding arbitration, forced 
arbitration agreements in employment contracts so that people 
are required to give up their right, their access to a court 
system.
    My question for you, I am impressed with the practical 
experience that you have representing both plaintiffs and 
employers, my question for you is, as an experienced litigator, 
could you share with us your views on arbitration, binding 
arbitration, forced arbitration?
    Ms. Gustafson. That is an interesting question, and again, 
I note the same thing that my opinion may not matter because 
what matters is what the law is. And as I understand it, the 
law provides for arbitration. And as long as the law applies 
for it, then it can be done legally.
    But I will say, I have represented both employees and 
employers. And as an attorney for employees, I have never been 
particularly fond of forced arbitration. And as an attorney for 
employers, I have helped them write arbitration provisions into 
their agreements because that is what lawyers do. They look at 
the tools that are available to the client, they explain those 
options, and they let the client decide. So that is the best I 
can say about that.
    Senator Smith. Some argue that these forced arbitration 
clauses are faster and cheaper.
    In your experience, have you seen that to be the case?
    Ms. Gustafson. No.
    Senator Smith. Thank you.
    Sometimes there is a concern that is raised about forced 
arbitration that it seems like it could easily be biased on the 
side of the employers because, unlike in the court system, the 
employers are often paying for the arbitrators' fees.
    That does happen, right?
    Ms. Gustafson. The arbitrations that I have been involved 
in, I can say there are arbitration rules whereby the 
arbitrator is not supposed to know who is paying his fee. 
Whether or not he can figure that out by the wealth of my 
client and the wealth the company is a question.
    Senator Smith. Right.
    Ms. Gustafson. But I do know that we have been assured that 
the arbitrator is not told who is paying the fee.
    Senator Smith. Yes, but as my mother would say, it does not 
take a rocket scientist to figure that out. Right?
    Ms. Gustafson. Are you asking me to comment on rocket 
scientists?
    Senator Smith. I am asking you to comment on my mother's 
wisdom, I guess.
    Ms. Gustafson. You might have a wise mother.
    Senator Smith. All right. Well, I am very concerned about 
this question and especially as we think about people being 
able to look after themselves and needing to know that they 
have the ability to go to court when needs be.
    We are talking about situations where the balance of power 
is not equal and not even, which brings me to the next round of 
questions I would like to ask you about, which is:
    I believe one of the most important things we have to do in 
the Senate is to stand up for people who do not have a lot of 
power. And this really strikes me as something that happens all 
the time in workplaces, where the employer does have a lot of 
power and often the employee does not have a lot of power.
    You note this in your testimony when you talk about, you 
say, ``Civil rights statutes were enacted because sometimes 
those in positions of power prey on the relatively powerless or 
discriminate against those who are unlike themselves.'' Maybe 
this is a little bit of what Senator Kaine was getting at a 
moment ago.
    Could you just talk a little bit about your views on this, 
what you have seen? This will help me to understand what life 
experiences you are going to bring to this really important 
role.
    What have you learned about representing people in the 
workplace who are lower wage workers and what their experience 
is?
    Ms. Gustafson. Some of my favorite clients have been 
minimum wage workers and subminimum wage workers. I have done, 
in addition to my work in EEOC, I have done a lot of fairly 
standard work where I was representing people.
    There have been some really heartrending cases out there 
where people are taken advantage of. I am glad we have the laws 
to address those things.
    I have found that the laws work and I have always counted 
it an honor to represent people in getting the wages that they 
are due. I think that is one of those cases I was talking about 
where it is really a wrong that cries out to be righted when 
somebody is not paid what they should be paid for the work that 
they have done.
    Senator Smith. Thank you very much. I know that I am out of 
time. I just want to note as I am wrapping up that the question 
of sexual harassment in the workplace, I think, is a classic 
example of this where the balance of power is not equal.
    I am hoping we can have a hearing about this because I 
think that it is very important to the conversation that we 
have in this Committee as we think about how to protect 
peoples' rights.
    Thank you very much.
    The Chairman. Thank you, Senator Smith.
    Senator Warren.
    Senator Warren. Thank you, Mr. Chairman.
    So according to the EEOC, at least 25 percent of women have 
experienced sexual harassment on the job, but the real number 
could be as high as 85 percent. Many more women and men face 
other forms of harassment and low wage workers, in the 
hospitality and food service industries, are particularly 
vulnerable.
    This is a serious problem that affects the whole economy. 
It is bad for business. It is bad for workers. It is bad for 
workers' health. It is bad for their financial security. And it 
is just plain wrong.
    Congress should be taking a leading role in addressing 
harassment in the workplace and that is why I called on this 
Committee to hold hearings on this urgent matter. So let me ask 
you this, Ms. Gustafson.
    If you are confirmed, you will be responsible for bringing 
harassment and other discrimination cases on behalf of the 
workers. But according to the Commission, only 6 to 13 percent 
of workers, who have been harassed, file any kind of formal 
complaint. Even when workers go to the EEOC, many cases are 
dismissed without a full investigation.
    Based on your work on discrimination cases as an attorney, 
what are the major barriers that you can identify for workers 
getting relief from the EEOC?
    Ms. Gustafson. I think a major barrier is that it is hard 
for people to find attorneys. The Metropolitan Washington 
Employment Lawyers Association is a group of attorneys that 
take those cases on. I refer a lot of clients there.
    I think there is a fear of retaliation; that can be a 
problem.
    Senator Warren. How about the backlog?
    Ms. Gustafson. Sure, absolutely. That is why I feel like 
one of the best things that the EEOC can do is just to try to 
process those cases as quickly as possible, and file lawsuits 
where the cases seem to have merit, and move them on as quickly 
as possible.
    Senator Warren. How about underfunding of the EEOC?
    Ms. Gustafson. I do not have any personal knowledge, since 
I am not on the inside of the EEOC, about any underfunding 
issues.
    Senator Warren. Okay.
    Ms. Gustafson. But I do know----
    Senator Warren. We can look at backlog, right, as part of 
this?
    Ms. Gustafson. Yes.
    Senator Warren. Let me focus on the backlog, because I 
think that is a really important point that you raise on this.
    The Commission has made progress on its backlog in recent 
years, but there were still more than 60,000 complaints waiting 
to be resolved at the end of the last fiscal year. The average 
wait time for a private sector workers' claim is nearly 300 
days.
    Now, the Trump administration has proposed decreasing the 
EEOC's budget, which the Commission's own budget request said 
would result in a, quote, ``Net attrition of investigators.''
    So in January, I asked for increased funding for the EEOC 
to help address this problem, and I am glad that the Commission 
just got its first budget increase in 8 years.
    But for the EEOC to really stamp out harassment in 
America's workplaces, we need to keep fighting for the funding 
it needs to be able to do its job. If it does not have money, 
it cannot do its job. So let me ask the question this way.
    If you are confirmed as General Counsel, will you commit to 
advocating for increased funding for the EEOC so that you, and 
the agency's regional attorneys, are able to do your jobs as 
effectively as possible?
    Ms. Gustafson. I would like to say two things in response 
to that.
    Senator Warren. Sure.
    Ms. Gustafson. The first is that I have a front row seat to 
these sexual harassment cases. I cannot begin to describe all 
of them. I have represented women, young women, who have been 
groped by their bosses.
    I have represented a woman here in D.C. who, in her job, 
she had to change in the locker room, and as she was changing, 
she found out that there was a man there watching her that she 
did not know had been there. She complained to management and 
nothing happened. It happened again, only the next time he 
barricaded her against the wall and she was in very serious 
concern for her safety.
    So I am saying, yes, I know how serious this problem is. 
This was a sexual harassment case.
    As to the funding, I can commit to doing the best job that 
I possibly can with the resources that have been given, and 
then if I see that there is a need for more funding, I would 
certainly advocate on behalf of the agency for that funding 
when a budget is being proposed.
    Senator Warren. So you will advocate for increased funding 
if you see that you need funding in order to be able to do the 
job?
    Ms. Gustafson. Yes.
    Senator Warren. Might we both agree that a backlog that is 
measured by tens of thousands of people, and 300 days of 
waiting time, indicates that we may need to put some more 
resources to dealing with this problem?
    Ms. Gustafson. That is a discouraging backlog.
    Senator Warren. Yes, it is a discouraging backlog, and 
unless you can think of some other reason, it sounds like a 
backlog because the agency is shorthanded and cannot do its 
work.
    Ms. Gustafson. That may well be true. I do not know from 
the inside. I am sorry. I just have not been there.
    Senator Warren. Well, we will find out here.
    The EEOC has a key role to play in ensuring that all 
workers in this country can do their job free of harassment and 
free of discrimination. But Congress has a role here too.
    We need to strengthen protections. We need to close 
loopholes for our most vulnerable workers, and we need to make 
sure that our enforcement agencies have the resources they need 
to be able to enforce the antidiscrimination laws that are on 
the books.
    For that reason, I hope that we will hold hearings on 
workplace harassment as soon as possible.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Warren.
    Senator Murray brought that up. I said I will be glad to 
consider that and I would ask you to work with the Democratic 
leaders too. We talked about the understaffing of the EEOC.
    One of the glaring errors of understaffing is we have had 
two Commissioners approved by this Committee since October 18 
of last year, and they are both being held up by Democrats on 
the Senate floor so that we cannot confirm them and staff up 
the Commission.
    So if there is such an urgency about compliance and 
enforcement with well-established civil rights statutes, I 
would think we might work together to try to get a time 
agreement for those two nominees who have been waiting since 
October, and Ms. Gustafson, if she is also approved by the 
Committee.
    Senator Hassan.
    Senator Hassan. Thank you very much, Mr. Chair, and Ranking 
Member Murray.
    Good afternoon, Ms. Gustafson. Congratulations on your 
nomination and to you and your family.
    Ms. Gustafson. Thank you.
    Senator Hassan. Thank you for your willingness to serve.
    As I know has been discussed and mentioned, you brought a 
landmark case fighting for the right of women to not be 
discriminated against in the workplace because they are 
pregnant. A right that is so important for women and families 
across our country.
    Just as women cannot be discriminated against because they 
are pregnant, Title VII of the Civil Rights Act protects women 
from being fired for terminating a pregnancy or contemplating 
terminating a pregnancy.
    If confirmed, will you ensure that the EEOC vigorously 
fights against this type of discrimination?
    Ms. Gustafson. Excuse me, Senator. Did you say that as a 
provision in Title VII?
    Senator Hassan. Title VII protects the right of women to be 
free from discrimination based on their decisions about if and 
when to have a family and whether to continue a pregnancy.
    Will you uphold that area of Title VII law and enforce 
that?
    Ms. Gustafson. Two points. No. 1, I would absolutely not be 
in favor of anybody being fired from a job because of decisions 
they made related to those issues.
    As to what the law requires about it, I am not familiar 
with the case law, I have to say. I would have to look at it. I 
have not had anyone ever come to me with that case, so I have 
not ever done the research. But whatever the law says about 
that, I would certainly enforce it.
    Senator Hassan. Right. I think we will follow-up with you 
after the hearing just to exchange information and clarify 
that. Okay? Thank you for your answer.
    Another concern of mine is the issue of litigation to 
address systemic employment discrimination. I think that is 
critically important to the work of the EEOC. These cases 
address employers' patterns and practices of discrimination, 
often impacting tens of thousands of workers across the 
country.
    By focusing on policies that discriminate, systemic 
litigation is one of the most efficient ways of ensuring that 
workers have access to equal opportunity to workplaces free 
from discrimination. And, in fact, the majority of workers who 
have benefited from the work of the EEOC's litigation teams 
over the last 10 years have benefited because the EEOC has 
pursued these cases of systemic discrimination.
    Do you agree that cases investigating and litigating 
systemic discrimination to be a top priority for the EEOC 
General Counsel's Office?
    Ms. Gustafson. I agree, Senator, that systemic cases are 
certainly provided for in the law and that there is certainly a 
place for them.
    I have been the lawyer dealing with those individual 
complaints, those individual charges of discrimination, and 
there are so many of them. So I have to say that I do think it 
is important that the systemic cases not take over the 
litigation at the EEOC to the neglect of these individual 
charges that are coming in.
    Senator Hassan. But suppose you have an employer with tens 
of thousands of employees and one or two employees raise issues 
of discrimination? If the EEOC focuses on, not only those 
cases, but whether they represent systemic discrimination that 
could be impacting thousands of other people, you could address 
discrimination affecting thousands of people in one 
investigation, rather than insist that each person bring up a 
charge separately.
    Does that not seem like the most effective and efficient 
way to ensure workplace safety out of fairness?
    Ms. Gustafson. I think sometimes it is and I would bring 
such claims.
    But I also believe that one of the best ways to attack 
discrimination, to get a higher level of compliance with the 
laws that the EEOC has the jurisdiction to enforce, is to just 
keep going after those small individual claims and never let 
up.
    I feel strongly that the EEOC should be doing both. Where 
necessary, where the evidence shows it, systemic cases are 
important. But if I may----
    Senator Hassan. If I can, I only have about a minute left.
    The point I want to make to you is this, that lots of 
employers, especially large employers with a lot of resources, 
can play a waiting game. We just heard Senator Warren talking 
about a 300 day backlog.
    If you are an individual with an individual case, who has 
to go seek out an attorney, arrange, perhaps, a contingency fee 
arrangement with that attorney, wait 300 days at a minimum to 
get your case heard, you are less likely to be able to actually 
get the kind of immediate justice that a systemic investigation 
result can deliver.
    I am very concerned because a lot of large employers can 
just wait employees out or force them to take very small 
settlements because the delay will be so expensive and costly 
for the employee.
    So I am running out of time, but I would just like you to 
consider the value that systemic investigations and litigation 
can bring to thousands of people, so that we can try to make 
sure that we are curing discriminatory policies at their root, 
and delivering justice to large numbers of employees all at 
once.
    With that, I am out of time. Thank you, Mr. Chair.
    Ms. Gustafson. Senator Alexander, may I just address that 
briefly?
    The Chairman. Yes, of course, Ms. Gustafson.
    Ms. Gustafson. I do think that it is true that we should be 
concerned about backlog and I do think there is a place for 
these systemic cases, and where the evidence shows that, I 
would commit to bringing them.
    But I just wanted to note that the small, individual cases, 
there are so many of them that keep being filed that need to 
get attention too.
    For example, just yesterday afternoon, in a very short 
window, I got a call from a Middle Eastern man with an age 
discrimination claim, an African-American woman with a 
disability claim, a pregnant woman calling on behalf of herself 
and one other pregnant woman who was her coworker with these 
pregnancy discrimination claims. This morning, I got a call 
from a woman with a sex discrimination claim.
    There are so many of these small, individual cases and my 
point is that I think the EEOC needs to be very serious about 
pursuing those cases as well.
    Senator Hassan. Mr. Chair, if I may?
    I thank you for that. My point is that you might be able to 
lower the number of those individual calls if your agency 
investigates those employers on a systemic basis.
    Ms. Gustafson. When the evidence shows that, you are right. 
That is what should happen.
    Senator Hassan. Thank you very much.
    Thank you, Mr. Chair.
    The Chairman. Thank you, Senator Hassan.
    Senator Murray, do you have any other questions or 
comments?
    Senator Murray. Thank you, Mr. Chairman.
    I know Senator Baldwin is going to walk in, in a minute and 
had some questions. But while she is on her way, I did, in my 
opening remarks, mention management experience. You are going 
to be managing 15 offices and hundreds of experienced 
attorneys.
    Can you talk with us a little bit about your experience in 
managing a large agency?
    Ms. Gustafson. I do not have experience managing a large 
agency. So that is an easy point to make.
    But I will also say that I have, for the many, many years, 
been helping employers make management decisions about their 
workplaces and I continue to do that.
    I have been on the governance committee of a seminary where 
we are responsible for the management of that seminary with 
multiple satellite campuses.
    I know that the EEOC has a good career staff. I would be 
taking advantage of them and their expertise, and I think I 
could do that.
    Senator Murray. Do you know what your management style is?
    Ms. Gustafson. My management style?
    I know what my management style is in terms of managing the 
attorneys who occasionally have worked for me or the people in 
my household. And it has to do with really encouraging what is 
done well and really lighting a fire under people when they 
need to do more.
    Senator Murray. Okay. Thank you, Mr. Chairman.
    I do not have any other questions. I do want to submit some 
for the record.
    I understand Senator Baldwin is on her way.
    The Chairman. I will be glad to, as a courtesy to Senator 
Baldwin, wait for her.
    I would just observe, Ms. Gustafson, that I listened 
carefully to the discussion with you and Senator Hassan, and I 
understand the Senator's concern and yours. But just as one 
Senator, I like to focus on the claims. I mean, if we are going 
to hold out to the public at large that if they file a claim or 
a charge with the Equal Employment Opportunity Commission that 
they will be heard and that they will be reviewed.
    If too many of the resources are spent on systemic cases 
pursuing novel legal theories--particularly those that have 
received the kind of almost, let us say, very unusual rebuke 
from three-judge panels in both the Third and Fourth Circuit--I 
think the people you described and who you have represented for 
years will be much better off if you worked that backlog down 
as much as possible, and hold out to people the hope that they 
will be heard if they file.
    One other thought is, do you understand the difference 
between a guidance and a regulation?
    Ms. Gustafson. I do.
    The Chairman. Do you know that under both President Obama 
and President Trump that a guidance is not legally binding?
    Correct?
    Ms. Gustafson. I know the guidance does not have the 
weight----
    The Chairman. Force of law.
    Ms. Gustafson ----of law, the force of law that a 
regulation has.
    The Chairman. Right. That is my point. A regulation would 
have the force of law properly adopted and given public 
comment, but a guidance would not.
    Even though some guidances have broad application and broad 
effect, would you agree with the practice of asking for public 
comment at least for guidances that have broad effect or are 
controversial?
    Ms. Gustafson. I like the idea of public comment even for 
guidance. I understand that it may not be legally required, but 
it seems to me that we could all benefit from having all the 
stakeholders speak into the issues that guidance is being 
issued on.
    The Chairman. Congress has granted to the EEOC the 
authority to bring litigation. In 1996, EEOC delegated this 
litigation authority to the General Counsel with limited 
exception.
    The Commissioners are supposed to be presented with the 
opportunity to vote in cases involving a novel area of law. My 
sense is that the Commissioners should be more active in 
considering important areas of law.
    What is your attitude toward this delegation of authority 
to the General Counsel? And in what instances should the 
Commission itself step in?
    Ms. Gustafson. I understand that the Commission is the one 
with the authority to decide how much of their authority they 
want to delegate. I do understand that they have delegated 
quite a bit of authority. There are five categories of cases 
that they have asked the General Counsel to refer back to them 
for discussion before those cases get filed.
    One of them is novel questions of law. I would certainly 
abide by that, and I recognize the fact that the Commission has 
the right to pull back delegation if it wants to, to 
redistribute it as it thinks appropriate. I would cooperate 
with whatever delegation I was given, and I do not have any 
position at all about whether they should take some of that 
back.
    The Chairman. Thank you.
    Senator Baldwin.
    Senator Baldwin. Thank you, Mr. Chairman and Ranking Member 
for this opportunity.
    I wanted to follow-up with you on an issue that, I believe, 
Ranking Member Murray and Senator Kaine raised about Title VII.
    I strongly support the EEOC's decisions that make it clear 
that Title VII's sex discrimination provisions are properly 
understood to prohibit discrimination based on both gender 
identity and sexual orientation, a position that has been 
affirmed by a number of Federal Courts including the Seventh 
Circuit, which includes my home State of Wisconsin.
    I applaud the Commission for its enforcement efforts 
consistent with this position on behalf of LGBTQ workers.
    For example, in July 2017, the agency brought suit against 
a Georgetown restaurant on behalf of a young, gay man who was 
subjected to harassment because of his sexual orientation 
resulting in a $50,000 settlement, and changes to the 
employer's policies, and training to address discrimination and 
harassment.
    In May 2016, the Commission secured $140,000 settlement and 
policy changes on behalf of a transgender woman who was blocked 
from doing her job as an I.T. contractor at a Minnesota college 
when she announced her intent to transition from male to 
female.
    Ms. Gustafson, do you agree that the EEOC's current 
position is that Title VII's provisions on sex discrimination 
is properly understood to prohibit discrimination based on both 
gender identity and sexual orientation?
    Ms. Gustafson. Senator Baldwin, thank you for the question.
    You have raised issues that are currently in litigation and 
I do not want to comment on any of those particular cases 
because I do not want to prejudice the litigation in any way 
for either side.
    But I do note that the EEOC is the body with the authority 
to issue the policy of the EEOC. The General Counsel does not 
come up with the policy of the EEOC. That would not be my job. 
That would be the EEOC's job.
    I note that there is currently a Circuit split on these 
issues. As the Senate is well aware, there is a lot of change 
taking place in the courts about this. We are in an era of 
flux.
    What I can tell you is that any case that came to me, I 
would carefully compare the facts of the case and the evidence 
with the current law at the time that it came to me, and I 
would enforce the law as it was then.
    Senator Baldwin. Are you aware of how long the Commission 
has had this as precedent? In other words, that Title VII 
prohibits discrimination based on both gender identity and 
sexual orientation?
    Ms. Gustafson. Are you asking me if I know when they began 
to hold that position?
    Senator Baldwin. Yes.
    Ms. Gustafson. I do not.
    Senator Baldwin. You talk about this issue being currently 
in litigation, but what is your role in terms of defending the 
Commission's interpretation?
    Ms. Gustafson. My role, as I understand it from the statute 
and from the EEOC policy manual discussing the role of the 
General Counsel, is that my position would be to advise them 
about the law when they requested advice and to bring the cases 
as they came up. Sometimes with authority that I would have and 
sometimes with authority from the EEOC because the EEOC 
directed those cases, and I would cooperate with them on that.
    Senator Baldwin. Is it your thought that your position 
would require you to proactively disagree with prior General 
Counsels' advice to the Commission?
    Ms. Gustafson. No.
    Senator Baldwin. Workplace harassment remains an 
unacceptable reality that threatens the safety and economic 
security of far too many people working to build a better 
future for themselves and their families.
    I believe that if you work hard and you play by the rules, 
you ought to be able to have the opportunity to get ahead.
    In 2013, the Supreme Court issued a decision ``Vance v. 
Ball State'' that made it much harder to hold employers 
accountable for the harassment employees face at the hands of 
direct supervisors. Under this decision, only people with the 
power to hire and fire are considered supervisors under Title 
VII.
    In reality, lower level supervisors can have enormous 
authority over their subordinates, particularly in low wage 
occupations like childcare workers and cashiers, where women 
make up the significant majority of workers.
    It is why I introduced legislation, the Fair Employment 
Protection Act that simply reverses the Vance decision.
    Do you agree that in light of ``Vance'', the EEOC would 
benefit from legislation that provides clear authority to 
pursue claims of harassment by middle managers?
    Ms. Gustafson. Excuse me for making you repeat this, 
Senator Baldwin. What court did you say issued that opinion 
that you are talking about, the ``Vance'' opinion?
    Senator Baldwin. The U.S. Supreme Court.
    Ms. Gustafson. Okay. Thank you. I thought that is what you 
said and I wanted to clarify that.
    If the U.S. Supreme Court has ruled on an issue, that is 
the law of the land, and I would enforce that law whatever it 
is. There is no doubt about that and that is what I would be 
bound to do, to use the law, as it stands, and enforce that 
law.
    If the Senate were to pass a law that changed that, of 
course, I would enforce whatever the new law was about that.
    I do know that sometimes my work as a plaintiff's 
employment lawyer has caused me, in discovery, to have to work 
to find out who the true decisionmakers were. They were not 
always who they appeared to be from the outside of the case.
    The Chairman. Thank you.
    Senator Baldwin. One quick follow-up?
    The Chairman. Okay.
    Senator Baldwin. Do you believe that a supervisor has to 
have hiring and firing authority to be a supervisor?
    Ms. Gustafson. I do not think my position on that matter, 
matters because I would just be enforcing the law and not my 
personal opinions about that, and I do not have any personal 
opinions about that.
    I understand that there is a list of factors that are 
considered. I would look at those lists of factors under the 
law and apply them.
    Senator Baldwin. Okay.
    The Chairman. Thank you, Senator Baldwin.
    If Senators wish to ask additional questions of the 
nominee, questions for the record are due by 5 p.m., Thursday, 
April 12.
    For all other matters, the hearing record will remain open 
for 10 days. Members may submit additional information for the 
record within that time.
    The Chairman. The next meeting of our Committee will be 
tomorrow morning at 10 a.m. on, ``The Opioid Crisis Response 
Act of 2018,'' that Senator Murray and I have worked on with 
almost every Member of the Committee.
    Thank you for being here today.
    The Committee will stand adjourned.
    [Whereupon, at 3:50 p.m., the hearing was adjourned.]

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