[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
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
29-807 PDF WASHINGTON : 2020
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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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