Sharon Gustafson testifies Tuesday at her confirmation hearing for EEOC general counsel. Credit: Diego M. Radzinschi/ National Law Journal

Sharon Gustafson has spent the last three decades as a solo practitioner in Virginia taking on claims of employment discrimination for both employees and employers.

Her remarks to a U.S. Senate committee Tuesday indicate that if she's confirmed as general counsel to the U.S. Equal Employment Opportunity Commission, she would continue to pursue individual claims—a move from the sweeping cases taken on by her Obama-era predecessor.

“I believe one of the best ways to get a higher level of compliance or get a better handle is to go after the small, individual claims and never let up,” Gustafson told the Senate Health, Education, Labor and Pensions Committee during her confirmation hearing. “There is a place for systemic cases, but it's important they don't take over to the neglect of individual charges.”

Systemic litigation was a focus of the EEOC under the previous general counsel David Lopez and the Obama-era commission. The agency would take on lawsuits that addressed patterns and practices of behavior and push for broader change. The business community and Republicans criticized the agency for overreach and wasting resources.

The commission is poised to shift under the Trump administration. Nominees Janet Dhillon, former Burlington Stores Inc. general counsel, and West Point professor Daniel Gade, have not yet been confirmed. The Obama-era EEOC pushed new rules for corporate wellness programs, equal pay and LGBT protections.

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Sen. Maggie Hassan, D-New Hampshire, asked Gustafson about whether she sees the value in cases that would be able to uphold federal civil rights for tens of thousands of employees. Gustafson said if the evidence supported such a case, she would bring it.

Senators pointed to a backlog of tens of thousands of claims of discrimination and the fact that the average waiting time for a case to be heard is 300 days.

“It is true we should be concerned about the backlog, and I think there is a place for systemic cases and I will bring them when the evidence supports it,” Gustafson said. “But I will add that for the small individual cases, so many of them need attention too.”

Sen. Lamar Alexander, R-Tennessee, who chairs the Senate committee, said the EEOC is squandering too many resources on systemic cases with novel legal theories.

Gustafson, who successfully advocated for UPS in a pregnancy discrimination case at the U.S. Supreme Court, acknowledged the workplace is full of issues of sexual harassment, discrimination and retaliation.

The Democratic senators pressed Gustafson on whether she would support the EEOC's interpretation that Title VII of the Civil Rights Act protects gender identity and sexual orientation. The agency has been an advocate in appeals courts across the country for years and began prosecuting cases of employers discriminating against its gay and transgender workers in recent years.

In a case before the U.S. Court of Appeals for the Second Circuit, the EEOC clashed with the U.S. Department of  Justice  in making the argument that LGBT employees should be protected under federal civil rights laws. The Second Circuit in February ruled in favor of the employee in that case. This leaves the question split among circuit courts, which could tee up the issue for the Supreme Court.

Gustafson, when questioned repeatedly by senators about whether she would support the EEOC's position, hedged and said she would take each situation case by case. She said her personal opinion was not relevant to how she would interpret the law.

“As the Senate is aware, the makeup of [the EEOC] is not static,” she said. “Their positions change from time to time. I have no way of knowing what it will be in the future. I can't support a position of yesterday. I will commit to cooperating with whatever their positions are and not do anything to contradict.”

She later added, in response to questions about LGBT protections, “I feel like I'm being asked to give a yes or no to a complicated question. We have jurists around the country wrestling with that question and writing lengthy opinions and dissents.”

She said Congress has its own power to ensure workplace protections. “I would like to see [a] workplace where individuals were judged solely based on their work,” she said. “There is a circuit split on these issues. We are in an era of flux. Any case that came to me, I would compare the facts of the case and enforce the law as it is.”

 

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