In his latest attempt to prevent the remnants of the Trump administration from choking his own agenda, President Joe Biden fired Sharon Gustafson, general counsel of the Equal Employment Opportunity Commission, on Friday. Biden had previously requested Gustafson’s resignation, but she refused to step down. Instead, she accused the president of targeting her because of her support for religious liberty. Republicans have rallied behind Gustafson, echoing her accusation that Biden violated norms in a malicious or even discriminatory manner.
This narrative is curious for several reasons: First, by tradition, the EEOC general counsel, a political appointee, steps down upon the inauguration of a new president; it was Gustafson who violated this norm by burrowing into her position. Second, the EEOC defended religious freedom—for both Christians and religious minorities—long before Gustafson’s appointment; if anything, she took a narrower view of the issue, focusing on the rights of Christians at the expense of all others. Finally, it is no secret that Gustafson was an ineffective general counsel who sought to curtail her agency’s litigation against both LGBTQ discrimination and systemic racism. Career attorneys at the EEOC told Slate that her removal is a necessary step toward restoring the agency’s mission, badly damaged by Trump appointees, of safeguarding civil rights for all.
When Donald Trump first nominated Gustafson, Democrats sounded the alarm about her views and qualifications. As a nominee, she would not commit to protecting LGBTQ rights and expressed limited understanding of the EEOC’s work. (Democrats nonetheless supported her confirmation in a voice vote.) The EEOC interprets and enforces civil rights law, bringing lawsuits against employers accused of discrimination; as general counsel, Gustafson had the power to initiate or approve litigation, as well as amicus briefs weighing in on cases that do not directly involve the office. The general counsel also holds substantial influence over policies and guidance outlining the agency’s legal positions. Before she was appointed, Gustafson worked as a solo practitioner representing individual plaintiffs, usually in cases involving religious liberty or pregnancy discrimination. Some of the work was certainly admirable, but it did not equip her to oversee a large agency that handles the full range of discrimination cases, including class actions.
Upon joining the EEOC, Gustafson committed herself to the cause of religious liberty above all else. But she took a very narrow approach to the concept, in line with the Trump administration’s broader conception of “religious freedom” as a weapon to limit other rights, especially reproductive autonomy and LGBTQ equality. Gustafson’s suggestion that the agency previously failed to safeguard religious exercise in the workplace was false; under President Barack Obama, for example, the agency routinely brought lawsuits on behalf of devout employees, including Christians. Obama’s EEOC famously won a major victory at the Supreme Court in favor of Muslims’ right to wear religious apparel on the job. But it also litigated cases on behalf of Christians, including Seventh-day Adventists who observed the Sabbath and evangelicals with specific workplace needs (such as a man who refused to use a biometric hand scanner because he associated it with the mark of the beast).
A staunch abortion opponent, Gustafson seemed more interested in quintessential “culture war” cases that involved Christian employees demanding a right to discriminate. Two current employees of the EEOC told me that she directed attorneys to “find me” a case involving a religious hospital that was penalized for refusing to perform an abortion—so she could weigh in on the side of the hospital. And she took the highly unusual step of supporting employers seeking a “ministerial exception” from civil rights law to discriminate against workers who did not share their faiths.
Gustafson also expressed discomfort with LGBTQ rights, even after the Supreme Court affirmed the EEOC’s long-standing position that the Civil Rights Act bars workplace discrimination against gay and transgender employees in 2020’s Bostock v. Clayton County. At an agencywide meeting after Bostock came down, career staff celebrated a triumph years in the making. Afterward, a current EEOC attorney told me, Gustafson delivered a brief address in which she downplayed the victory and defended those who disagreed with the decision. Shortly before Trump left office, the EEOC also pushed out a new “compliance manual on religious discrimination” that was produced at record speed with virtually no public input. The manual, which Gustafson helped draft, strongly suggested that religious employers hold a right to discriminate against LGBTQ people in the workplace on the basis of their beliefs. Dozens of civil rights groups filed objections to the manual, pointing out that it would dramatically undermine civil rights law. The EEOC appears to have ignored their protests and adopted the manual on Jan. 15.
Equally problematic was Gustafson’s hostility toward class-action lawsuits, a highly effective tool against systemic discrimination. For decades, the EEOC has represented large groups of employees who faced the same kind of bias at work—a class of Black employees, for instance, who were denied promotions by the same manager despite their undeniable qualifications. When attorneys brought such cases to Gustafson for approval, she would often slash the size of the class for no apparent reason. Gustafson would reduce the number of plaintiffs in a case from dozens to a handful, for no purpose other than her skepticism toward class actions. EEOC lawyers who spent months or years building a strong case of systemic workplace racism were forced to tell multiple victims that they could no longer participate in the lawsuit. Gustafson’s approach was consistent with her broader habit of micromanaging employees, despite their superior experience and understanding of civil rights law. She held a fundamental mistrust of her own staff, which demoralized career attorneys who simply wanted to do their jobs free of political interference.
On Jan. 20, many EEOC employees assumed Gustafson would step down rather than serve under Biden. Although she was appointed to a four-year term in 2019, the general counsel traditionally steps down when a new president enters office. So the agency’s staff was surprised when Gustafson carried on business as usual. Then, unbeknownst to them, the White House requested her resignation on March 2. Remarkably, she refused to resign. In a letter to Biden, she implied that the president had caved to “those who oppose my advocacy on behalf of employees who experience religious discrimination” and warned that her removal would prompt “suppression of our work promoting religious freedom.” On March 5, the White House formally removed her from her post.
David Lopez, who served as EEOC general counsel under Obama, told me he was surprised by Gustafson’s refusal to resign on Jan. 20 or upon Biden’s request. “If Mitt Romney had been elected in 2012, I would’ve resigned,” he told me. “It’s an issue of norms. My predecessors resigned during the transition to a new administration. I certainly never thought I had a right to stay.” Like other Trump appointees who essentially forced Biden to fire them, though, Gustafson portrayed her intransigence as a principled stance, and depicted Biden’s actions as the real norm violation. Her supporters, including Trump-appointed EEOC Commissioner Andrea Lucas, have echoed this framing. They have also charged Biden with undermining the independence of the agency, which, they assert, was meant to be free from political interference.
If the EEOC were a true independent agency, the president would not be able to fire top political appointees without just cause. But it isn’t. Congress provided no such protections to either EEOC commissioners or the general counsel. In light of that decision, as well as Supreme Court decisions diminishing agency independence, Biden plainly held the power to fire Gustafson. Her termination removes one obstacle to the restoration of a well-functioning EEOC, especially since Gwendolyn Young Reams, a highly qualified career attorney, promptly took her place on an acting basis.
But another obstacle remains: Trump’s three appointees to the agency’s commission, a five-member board that holds ultimate power to overrule the general counsel on litigation and set policy, still hold a 3–2 majority. Unless Biden fires a Republican member of the commission, he will not establish a Democratic majority on the board until July 1, 2022, when Republican commissioner Janet Dhillon’s term ends.
Dhillon, who served as chair under Trump, has been disastrous for the EEOC. A management-side attorney who specializes in crushing workers’ rights, Dhillon has sought to subvert the agency’s mission at every turn by pushing out career attorneys, forcing plaintiffs into stingy settlements, and vetoing LGBTQ cases. She has also covertly met with the attorneys of employers being sued by the EEOC to undermine those lawsuits. As long as Dhillon remains on the commission, thereby maintaining Republicans’ majority, she and her allies can stymie efforts to effectively combat all forms of illegal discrimination.
One regional attorney with the agency, who requested anonymity for fear of retribution, told me she has found Dhillon’s behavior “shocking.”
“Dhillon is working against us,” she told me. “I’ve never seen that level of one-sided advocacy for employers. It’s astonishing. It almost seems like she doesn’t believe discrimination exists. At least Sharon [Gustafson] was not hideous to us. Dhillon is hideous all the time. She’s made enough enemies, but boy, is she effective at doing a lot of harm.”
Biden has already taken a leap toward reestablishing a fair and productive EEOC. But he cannot right the ship while Dhillon remains on board. Gustafson’s ouster may thus be a preview of a broader battle over the president’s prerogative to remove an executive official who is attempting to sabotage the mission of her own agency.
