Former EEOC commissioner takes on

When Donald Trump returned to office and began rolling back civil rights on a wide scale, it wasn’t long before he gutted the Equal Employment Opportunity Commission (EEOC) in an attempt to end the federal government’s lawful guarantee to protect transgender employees. 

During his second week, Trump fired two Democratic commissioners as well as the agency’s general counsel. Without a quorum, the agency’s ability to function effectively is severely compromised. 

The newly appointed acting chair of the EEOC, Andrea Lucas, has stated her priorities include  “rooting out unlawful DEI-motivated race and sex discrimination.” Since then, the agency has dropped at least one case of discrimination against a trans employee, with more to follow.

Insights for the LGBTQ+ community

Subscribe to our briefing for insights into how politics impacts the LGBTQ+ community and more.
Subscribe to our Newsletter today

To explain what this means for any queer employee with a potential workplace discrimination case, LGBTQ Nation spoke with former EEOC Commissioner Chai Feldblum, who is an out gay woman. 

Nominated by President Barack Obama in 2009, the longtime civil rights advocate served on the EEOC until 2018. Most recently, Fedblum served on the U.S. AbilityOne Commission.

“I got an email, January 21, saying ‘The President would like your resignation letter,’” Feldblum told LGBTQ Nation, “‘and if we don’t receive the resignation letter by close of business on Thursday, you are terminated from your position.’ Well, obviously, there was no way I was going to write a resignation letter.”

Four years remained in Feldblum’s term.

Related

Government commission halts investigations of LGBTQ+ workplace discrimination complaints
Equal Employment Opportunity Commission staff have been told to “pause” their investigative work on new and existing cases.

LGBTQ Nation: Could you compare the original mission of the Equal Employment Opportunity Commission to the way it’s been “reimagined” by the second Trump administration?

Chai Feldblum: The EEOC was created as an agency in the 1964 Civil Rights Act. It was designed to have members of both parties to implement and enforce this new [act], which prohibited discrimination based on race, religion, national origin, and sex. 

Starting in the 70s, the EEOC got some complaints from people who were trans and people who were gay, and the EEOC ruled that these folks were not covered under the sex discrimination law. Then, the courts adopted that as well. 

So the EEOC remain[ed] the most important civil rights enforcement agency in the employment area, very strong in terms of enforcing the rights against race, national origin, sex discrimination, but was not doing things on behalf of LGBT people.

That changed during the Obama administration. In 2009, a number of us joined the commission, and a year or so later, the EEOC ruled that transgender people could bring claims under sex discrimination, that gender identity discrimination was sex discrimination. 

A few years after that, the EEOC ruled that sexual orientation discrimination was sex discrimination, and so for a number of years, the EEOC followed that route and helped literally thousands of LGBT people. 

Ultimately, the EEOC’s legal analysis was vindicated in the Bostock decision, where the Supreme Court ruled that sexual orientation and gender identity discrimination were forms of sex discrimination, so we have a strong civil rights agency enforcing the law.

During the first Trump administration, the EEOC continued to enforce the law on behalf of LGBT people. There was no change. This Trump administration is hugely different, as we have seen across the board in the government, and there’s now an executive order literally stating that there are only two sexes so that transgender people essentially don’t even exist, and that there cannot be any policies from the federal government supporting trans people.

That is directly inconsistent with the Supreme Court decision that says that sex discrimination includes discrimination against transgender people, and an agency that follows an executive order that is completely inconsistent with the Supreme Court is, in my mind, not carrying out its obligation to enforce the law.

There have been reports of anti-trans workplace discrimination cases being dismissed by the EEOC. Is there recourse? You mentioned the Bostock decision. 

Two things are important to distinguish. The first track is, what cases does the EEOC choose to bring? Well, under the Biden administration, the EEOC filed five different cases on behalf of transgender folks, claiming in all of them there’s really pretty horrific harassment. And the EEOC now says, ‘Well, we don’t want to bring these cases because we don’t think we agree with what we’re arguing in the cases.’ Now, EEOC is not required to bring any particular cases, so I don’t see the EEOC withdrawing from those cases as sort of itself a form of discrimination, 

The second track is when people come to the EEOC with charges of sexual orientation or gender identity discrimination, and that’s anyone in the private sector or federal employees with those types of claims of discrimination.

Is the EEOC treating those charges in an equal, fair fashion to other charges and cases? I have my doubts that they are doing that, but it’s not based on any public statement that says, “We will treat you in an unfair, discriminatory manner.” We’re just sort of deducing that from various actions, but this is something that we as the public deserve to know.

My gut sense at the moment is that they are treating these charges and cases in an unfair, discriminatory manner. I think they will continue to do that, and we have to figure out a way to stop that.

If we can’t stop it, we have to make sure that the [LGBTQ+] community knows that even though EEOC may not be treating their cases fairly, they are still protected under the law. They basically, you know, ignore the EEOC as an agency that could help them.

What advice would you give LGBTQ+ employees currently experiencing workplace discrimination?

No LGBTQ person should think that they have less protection under the law now just because the EEOC may not be treating them fairly. It’s still illegal. They can still bring their cases to court. 

Maybe this is also the moment to really make it clear to every LGBTQ person in this country, whether you’re living in Alabama or Mississippi—or New York or California, right? But if you’re living in a state that has a state law prohibiting discrimination or a city law, obviously you sue on that basis.

But if you are living in any state that does not have a state law protecting you from discrimination, there is a federal law that under the Supreme Court’s ruling protects you right now. So, if you experience discrimination, you should try to find a lawyer. And one of the best ways to do that is just call the ACLU in your state.

They will have lists of lawyers that can take your case. And if it’s a decent case of evidence of discrimination, they can bring that case for you in court. They will have to do a stop by the EEOC, check a box because they filed a charge, ask the EEOC for what’s called the right to sue letter. That gives you the right to now go to court. And you go to court.

In addition to LGBTQ+ people, do you think other groups will suffer similarly in terms of losing the protection of the EEOC?

I think it’s very likely that other groups will experience harm as well. It will not necessarily be as explicit and targeted as it is against LGBTQ folks.

But here’s the type of harm that can be suffered. First, as the acting chair said, EEOC is going to prioritize going against what they call illegal DEI programs. So, any employer that has set up a bunch of programs to ensure that people of color, women, people with disabilities are included in the workplace, even though they are doing it in ways that are not at all illegal, could feel chilled in what they do. So, the harm is simply how employers react and pull back on activities that are themselves legal.

The second harm is EEOC prioritizes different charges. EEOC gets like 80,000 charges a year.

They get way too many charges given their staff to really give the same time to each charge. So, one of the things we did at the EEOC [was to have] a strategic enforcement plan, by putting in place various other methods, to prioritize claims, to triage your resources. So, I think they’re going to be triaging those resources differently.

You can [still] go to court, but that is not as helpful as having EEOC do the work on your behalf, which is what they do now by investigating the charge. And if they think there was discrimination, they negotiate on your behalf with the employer, all without you, the person, paying anything.

What does the acting chair mean specifically when she says the EEOC will prioritize eliminating “unlawful DEI motivated race and sex discrimination”?

For example, if you’re trying to increase the number of Black people in your workforce, you cannot say under Title VII, “Out of my next four hires, two of them will be Black.” You just can’t say, “I will explicitly take race into account and that will be the only deciding factor.”

Same thing, you can’t say that based on sex or religion, national origin. All you are permitted in those categories is to have a nondiscriminatory hiring approach. [For] people over 40 and people with disabilities, the law is different.

But the administration is making it sound as if just having [employee] affinity groups is illegal. And that is simply not true. So, they use the term “illegal DEI” to refer to things that are both clearly illegal and always have been, and to things that are not illegal at all.

And they’re just trying to chill employers from doing anything to advance the numbers and inclusion of otherwise underrepresented groups. 

As someone who’s worked with a number of presidential administrations, could you comment on an administration that would roll back civil rights? 

It is truly unprecedented.

It is true that in different administrations, there has been a different focus on how strong an agency has been moving in the civil rights area. I think we have seen in the first Trump administration the EEOC was not as effective in my mind, as it was in the Obama and Biden administrations. 

So, it’s not that having a Republican administration, for decades now, hasn’t sometimes meant a difference. But in every administration, they have still at least complied with the law.

What is your legal opinion of the administration’s power grabs, like President Trump’s executive order that ends independence for federal agencies?

l feel very strongly about the importance of the separation of powers. And it is not appropriate for the president to be grabbing power away from either Congress or the judiciary.

At this point, they’ve just been grabbing a lot of power away from Congress. One aspect of that is their challenge to the right of Congress to even establish an agency of any kind, for any issue, to establish an agency that would be run by a multi-member commission so that there can always be members from both parties.

And establishing such an agency without allowing the president to fire at will members of the other party, without allowing the president to review and have to approve any action of that independent agency—that was the executive order, [and] to me is a power grab and intruding on the turf of Congress.

Now, whether the Supreme Court will see it as illegal is very open to question. I am not particularly optimistic that they will uphold the right of Congress to create these types of independent agencies. The trend at the Court has been to expand the power of the president.

My one glimmer of hope is the special counsel and the Merit Systems Protection Board members. These are the ones that are coming up now to the Supreme Court, because these are very focused on just adjudicating claims of federal employees.

So it may be that they will uphold the right of Congress to say, ‘You, the president, cannot fire these folks at will.’ But that’s just two offices. And certainly the right of all other independent agencies, I think, is certainly up in the air.

The key thing is to try to not be despondent, which is sometimes very difficult, and instead to stay focused on how we can challenge what is happening.

Subscribe to the LGBTQ Nation newsletter and be the first to know about the latest headlines shaping LGBTQ+ communities worldwide.