Chai Feldblum, a former member of the Equal Employment Opportunity Commission, watched over nine years as the courts and regulatory policies embraced progressive ideals of greater workplace equality for disabled, LGBT and minority workers.
As the U.S. Supreme Court appears poised to take up a slate of civil rights cases, perhaps next term, Feldblum will watch from a different vantage point. Feldblum, an Obama-era appointee who was the first openly gay commissioner on the EEOC, was denied a chance to continue serving. President Donald Trump renominated her, but U.S. Senate Republicans, fearing she would undermine religious rights in favor of LGBT protections, blocked her advancement. Feldblum has flatly denied this characterization.
Feldblum, who left the EEOC in January, joined Morgan, Lewis & Bockius as a partner in Washington, along with her former chief of staff Sharon Masling, in February. Feldblum said she hopes to build off the work she did at the agency, particularly the 2016 report outlining guidance on harassment training in the workplace.
Feldblum spoke with The National Law Journal about her time on the commission, changes in the law and what’s next. The following highlights from the conversation were edited for length and clarity.
THE NATIONAL LAW JOURNAL: How do you think the work of the EEOC’s harassment guidelines should be implemented at companies? What are the next steps?
CHAI FELDBLUM: By working with a specific company, once you do that you’ll obviously be expanding on the work because you’re going deeper into some of the questions. The report is a broad brush picture and an overall general approach. The minute you start working with a particular company by definition you have to go deeper. And one has to get very practical that it is not easy to change your workplace culture so that harassment is simply not tolerated in the workplace. But it is possible to do that, research showed, with the right leadership, the right rules of accountability and then with the right policies procedures and training. Those things together can help shape a workplace culture so that harassment is much much less likely to occurs, and also if it occurs there are good systems in place but one has to go deeper and specific in order to make that work in any workplace.
NLJ: How did the #MeToo movement change the conversation and affect the way the EEOC handled the harassment guidelines?
CF: We went into this in 2015 because we were frustrated that things had not changed enough in stopping harassment. We were well aware of that. We were very committed to enforcement, but we felt enforcement clearly wasn’t sufficient. So what can we come up with that would be about prevention? Now, if you had asked me in June 2016 what was the biggest roadblock to getting the recommendations of the report adopted, I would have said shifting people’s attention by getting people to care about reading these recommendations. After the #MeToo movement began, suddenly, employers started to focus. The media started to focus. The average person on the street started to focus. Now, people have the opportunity, after focusing, to do something.
NLJ: What do you consider to be some some of your achievements at the EEOC?
CF: One of the pieces I’m very proud of is what the EEOC has done on correcting the law on Title VII sex discrimination and coverage of sexual orientation and gender identity. The courts had actually sort of been moving in that direction but it wasn’t really getting the visibility and it wasn’t as explicit as we had done it at the EEOC. We’re the first agency that was interpreting the law. We interpreted it that way and the courts went along. The EEOC corrected, in my mind, the mistake with our analysis. And again that’s what has enabled the courts to look at it again.
The second issue is the accommodations that pregnant workers get under the Pregnancy Discrimination Act. And that was one where four circuit courts of appeals had ruled in a way that I simply thought was wrong—that even if you gave light duty to someone injured on the job you had no obligation to give light duty work to someone who was pregnant and wanted to stay on the job. And ultimately, we issued guidance that said, “You do have to give light duty to a pregnant worker.” We had two different legal theories as to why and in the Young v. United Parcel Service case the Supreme Court adopted one of those theories.
The third substantive area for me is unemployment of people with disabilities. Over a five-year process, the agency issued expanded regulations under Section 5 of the Rehabilitation Act of 1973, which requires federal agencies to take affirmative action in the hiring of people with disabilities and really gain for the first time meaning and detail how that affirmative action application works.
NLJ: The Supreme Court has several LGBT workplace cases, but it doesn’t appear the court will take action on the petitions for this term. What are your thoughts on what’s happening?
CF: The [U.S. Court of Appeals for the] Eighth Circuit has that issue pending before it right now. Why not just wait until more of the circuit courts of appeal deal with this question. I don’t see any particular need for the Supreme Court to rush in right now. This is precisely where you want to have it percolate in the appellate courts. Maybe it needs more time to be riper. The question of gender identity, obviously there’s not much dispute in the lower courts.
NLJ: What do you make of the clash between the EEOC and the Justice Department over the Title VII question? The Justice Department, against the EEOC, argues that LGBT workers should not be covered under the federal civil rights law.
CF: It shows the difference between having an independent agency and a bipartisan commission, that is the EEOC. Unlike other things, where a snap of the fingers you can change your position, that doesn’t happen with multimember commissions. And it’s no surprise that the EEOC has not changed its position and it won’t change its position unless there’s a majority that wants to vote to change it.
NLJ: What do you make of Sen. Mike Lee’s opposition to your nomination? Do you have a takeaway?
CF: Perhaps counterintuitively, I actually take some solace. I’m actually quite gratified by the extent of support that I had from businesses.The bottom line is that the top Republican leaders were very comfortable to have me be on the commission for another term together with the two Republican nominees that President Trump had put forward. So to me, and in a world where it seems there’s never bipartisanship, actually the story of my nomination is that there was strong bipartisanship among the Republicans in the Senate to allow that package to go forward.
However, it’s simply a story of the reality of the Senate. Just one senator who objects for a reason—even if not grounded in reality—can bring down even what his party wants. I’ve been in politics for 30 years and I understand how it works. So, you know, I’m not I’m not upset by that.
Erin Mulvaney covers labor and employment issues from the Swamp to Silicon Valley. She’s a Texas native based in Washington, D.C. Contact her at email@example.com. On Twitter: @erinmulvaney