Biden Moves to Fire EEOC Top Lawyer Who Wouldn’t Resign

(Bloomberg Law) -- President Joe Biden was to fire Sharon Gustafson, the Trump-appointed general counsel of the EEOC, at 5 p.m. Friday, according to a source with direct knowledge of the situation.

The Biden administration demanded in a March 2 email that Gustafson, the U.S. Equal Employment Opportunity Commission's top litigator, resign, said two different sources who spoke on condition of anonymity because they weren't authorized to discuss the matter.

Gustafson refused, citing her term, which runs through 2023, according to a letter she sent Friday to the Biden administration. A copy of the letter was obtained by Bloomberg Law. She was then told by the White House on Friday that she would be fired as of 5 p.m., according to the source with direct knowledge.

“I have confidently given this advice to countless embattled clients over the last 25 years: hold your head high, do your best work, and do not resign under pressure,” Gustafson wrote in her reply letter to the White House. “In solidarity with them, I will follow that advice.”

The administration's move comes after Biden fired National Labor Relations Board General Counsel Peter Robb, who was also a Trump appointee, after he refused to step down on Jan. 20.

The EEOC and NLRB are independent agencies within the executive branch, and Gustafson's termination could prompt legal as well as political questions. After Biden sacked Robb at the NLRB, employers challenged the board's prosecutorial power, alleging the administration lacked the legal authority to terminate him prior to the end of his term.

At another independent agency, the Consumer Financial Protection Bureau, Kathy Kraninger left her post as director on Jan. 20 after also being asked to step down.

Republican EEOC commissioner Andrea Lucas called Gustafson's firing “deeply troubling” and indicative of what unity “actually means to this President and his Administration.”

Media representatives for the White House and the EEOC didn't respond to requests for comment.

Focus on Religious Bias

Gustafson, who was confirmed as the EEOC's general counsel in August 2019, prioritized combating religious discrimination in the workplace.

Her legal stances prompted at least one EEOC attorney to previously voice concern that the agency's approach in a religious bias lawsuit against Kroger Co. could impinge on the rights of LGBT workers. Gustafson had argued the lawsuit wouldn't clear the way for religious justification of other forms of discrimination.

In her letter declining to resign, Gustafson pointed out that after Biden's inauguration, some public-facing information on her efforts to promote religious freedom were removed from the EEOC website.

“I can only assume that my resignation would be followed by similar suppression of our work promoting religious freedom,” she wrote.

Lucas, who worked with Gustafson on initiatives focused on rooting out religious bias, said that “actions taken by this Administration are quite telling as to their priorities...and one can safely assume that combating religious discrimination—or retaliation, frankly, given Ms. Gustafson's firing—is not one of them.”

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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