Seyfarth Synopsis: The chief legal officer of the EEOC is an important post, and one which impacts all employers interacting with the Commission. Nearly 14 months after the start of his Administration, President Trump has finally announced his choice for General Counsel of the EEOC.
On the evening of March 19, 2019, the White House announced it will nominate Sharon Fast Gustafson to fill the position of General Counsel at the EEOC. The announcement was a long-time coming, as James Lee had been serving as Acting General Counsel since 2016, after former EEOC David Lopez resigned.
Ms. Gustafson has been an employment lawyer for more than 25 years, almost all of it as a sole practitioner focused on Virginia, Maryland, and the District of Columbia (from 1995-present). In her practice, she represents primarily employees, though she does represent employers as well. As noted on her firm’s website, she is a member of the National Employment Lawyers Association (NELA), an organization that holds itself out as advancing employee rights.
Ms. Gustafson’s most high-profile litigation matter is her representation of the plaintiff in Young v. UPS, a pregnancy discrimination case decided by the U.S. Supreme Court in 2015. In that case, the plaintiff argued that her employer should have provided an accommodation when her physician limited her to light duty work during her pregnancy. The Supreme Court declined to follow the EEOC’s Enforcement Guidance for Pregnancy Discrimination and Related Issues. However, the plaintiff obtained an employee-friendly decision that employers should provide the same reasonable accommodations to pregnant employees as are offered to employees with disabilities.
In addition to her employment practice, Ms. Gustafson has devoted a significant portion of her practice to adoption law and has been recognized as a Fellow of the American Academy of Adoption Attorneys since 1997. Her other affiliations include membership in the Federalist Society, Federal Bar Association, and Metropolitan Washington Employment Lawyers Association. Ms. Gustafson also is a member of the Board of Trustees for Gordon Conwell Theological Seminary.
Ms. Gustafson is married to David Gustafson, a judge on the United States Tax Court in Washington, D.C. who was appointed by President George W. Bush. The Gustafsons met as undergraduates at Bob Jones University, before she attended Georgetown University Law Center.
To the extent employers had expected the President to announce the appointment of a management-side defense lawyer as the next General Counsel of the EEOC, this announcement is sure to prompt discussion amongst the employer community.
Ms. Gustafson’s nomination continues the Trump administration’s trend of somewhat non-traditional appointment announcements related to the EEOC. In June 2017, the administration nominated Janet Dhillon, a lawyer working in-house as Executive Vice President, General Counsel, and Corporate Secretary of Burlington Stores, Inc. to serve as Chair. (The Senate has taken no action on Ms. Dhillon’s confirmation since October 2017; in the meantime, Vicki Lipnic continues to serve as Acting Chair.) In December 2017, the President nominated Obama-appointee Chai Feldblum to be reappointed as a Commissioner, for a term expiring in 2023, an announcement subsequently criticized by many conservative Republicans. (The Senate has taken no action on Ms. Feldblum either.)
Like Ms. Dhillon and Ms. Feldblum, Ms. Gustafson must await confirmation by the Senate. There currently is no timetable for the Senate to take up these issues.