Chai Feldblum’s EEOC

In December, the Senate was on the verge of confirming Chai Feldblum for another term as a commissioner of the Equal Employment Opportunity Commission. Feldblum, a leading gay rights advocate, is the architect of the Obama administration’s aggressive LGBT policy. While strong conservative nominees, including ones for top positions at the Department of Justice, have been on hold for the better part of a year, Feldblum was all set to be confirmed virtually overnight without even having to testify at a hearing.

Outrage from conservatives, especially social conservatives, halted the rush to confirm Feldblum. However, she remains a nominee, and stands a good chance of being confirmed one day soon (along with two Republican nominees for the commission), probably when no one is looking.

Before that happens, it might be worthwhile to look at Feldblum’s record. In doing so, I’m not going to discuss the LGBT side of it. I considered that here. Instead, my focus will be on her approach to litigating in more conventional areas of civil rights.

Since it is the Republican Senate that will (or, if we’re lucky, won’t) confirm Feldblum, a good starting point is a Senate Report called “EEOC: An Agency on the Wrong Track? Litigation Failures, Misfocused Priorities, and Lack of Transparency Raise Concerns about Important Anti-Discrimination Agency.” The Report is the work of the minority staff of the U.S. Senate Committee on Health, Education, Labor and Pensions.

Sen. Lamar Alexander was the committee’s ranking member at the time. The report went out under his name.

Sen. Alexander is now the committee chairman. His committee pushed for Feldblum’s nomination in December without holding a substantive hearing.

The 2014 report on the Feldblum EEOC was scathing. This is from the Executive Summary:

Today’s EEOC. . .is pursuing many questionable cases through sometimes overly aggressive means and, as result, has suffered significant court losses that are embarrassing to the agency and costly to taxpayers. Courts have found EEOC’s litigation tactics to be so egregious they have ordered EEOC to pay defendants’ attorney’s fees in ten cases since 2011.

The courts have criticized EEOC for misuse of its authority, poor expert analysis, and pursuit of novel cases unsupported by law. Several courts have openly criticized EEOC for its failure to satisfy pre-litigation requirements, such as attempting to resolve discrimination disputes out of court; yet, the general counsel is leading an effort to prevent court review of such requirements.

The EEOC’s general counsel decides which cases to recommend for litigation. However, he can’t bring cases without approval from the commissioners on whose behalf he litigates. Thus, unless Feldblum voted against the “questionable cases” and baseless litigation positions referred to in the report — and she did not — she is responsible for the “litigation failure” and “misplaced priorities” cited.

The report continues:

These court losses also have come at a significant cost to victims of workplace discrimination. . . EEOC’s litigation has recovered almost $200 million less for victims than under the previous administration over the same time frame. In March 2014, EEOC reported almost 71,000 unresolved complaints of discrimination from individuals who filed charges with EEOC.

To add insult to injury:

EEOC also has suffered from a troubling lack of transparency. In the past two and a half years, EEOC has ignored calls from current commissioners [note: not Feldblum] and Congress to allow public review of significant and controversial guidance prior to its adoption. Also, the Office of General Counsel has, since 2010, failed to issue its standard annual report, and the agency is being sued for violating the Freedom of Information Act.

In sum, the Feldblum EEOC has taken egregious legal positions (invariably favoring the left); used overly aggressive tactics (at times in violation of statutorily required procedures) to pursue them; and tried to cover its tracks by preventing public review.

Considerations of space prevent me from discussing in this post specific egregious cases brought by the Feldblum EEOC. For now, I’ll incorporate by reference my discussion of how the EEOC went to bat for drunken steelworkers (a swing and a miss) and for dreadlocks (another swing and a miss). More detail can be found in the 2014 report and in a report by the U.S. Chamber of Commerce called “A Review of Enforcement
and Litigation Strategy during the Obama Administration — A Misuse of Authority.”

I commend Sen. Alexander and his staff for their excellent 2014 report. It would be a pity if, now that Republicans are in the majority, they rewarded Chai Feldblum, co-author of so much misuse of authority, by confirming her for another term.

NOTE: I have modified slightly the paragraph in this post regarding the general counsel’s suit-bringing responsibility and the role of the commissioners.

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