P. David Lopez. (Photo: Diego M. Radzinschi/NLJ)
P. David Lopez, the former U.S. Equal Employment Opportunity Commission general counsel who left the agency last week, said it is too early to know how President-elect Donald Trump will approach EEOC enforcement. But he pointed to broad political support for antidiscrimination laws as a positive sign for the commission’s existing enforcement initiatives.
“I am actually hoping that historical bipartisan commitment to addressing civil rights issues will be resurrected and continued, but we’ll just have to wait and see,” he said in an interview following Monday’s announcement that he will join the employment law firm Outten & Golden to help the firm open its first Washington office.
Outten & Golden, a New York-based firm that represents employees, said Lopez, who led the EEOC’s enforcement program for more than six years as its longest serving general counsel, will co-chair the firm’s discrimination and retaliation practice group. The firm also has offices in Chicago and San Francisco.
Lopez will focus on individual and class action discrimination cases, as well as consent decree monitoring and mediation, according to the announcement. Lopez said his courtroom experience as well as operational and managerial skills that he developed while running the EEOC’s enforcement program will likely benefit him in heading Outten & Golden’s new office.
As Lopez reflected on his transition to private practice after many years with the government—he was an attorney at the EEOC for nearly 20 years before President Barack Obama nominated him for general counsel in 2010—he looked ahead at the future of the agency as well.
“Right now everyone is taking a wait-and-see attitude,” he said. “Historically the EEOC hasn’t gone through as many significant changes with political transitions. I was there during the entire [George W.] Bush administration and we were filing good cases and vigorously enforcing the law, doing very interesting work.”
He pointed to the fact that under both Bush presidencies, antidiscrimination laws were expanded. President George H.W. Bush signed the Americans with Disabilities Act in 1990, and President George W. Bush signed a law amending and expanding the ADA in 2008.
There are still questions around how Trump and his still unnamed appointees to the commission might run the agency.
Under Obama, the EEOC prioritized combatting workplace harassment under the Civil Rights Act of 1964, releasing a report in June on how the issue might be better addressed. The anti-harassment focus contrasts with accusations made by a number of women against Trump during the presidential campaign, as reported in sibling publication Litigation Daily and elsewhere.
But Lopez said the enforcement staff at the EEOC will remain committed, regardless of who is named to lead it. “Harassment is still against the law, so that hasn’t changed,” he said. He noted the EEOC under Trump will still have attorneys dedicated to prohibiting harassment protecting workers from bias based on sex, race, national origin and other protected characteristics.
Another area where Trump’s campaign statements seem potentially in conflict with EEOC priorities under the Obama administration is with respect to anti-Muslim bias.
On the campaign trail, Trump at one point called for banning Muslim immigration to the U.S. The EEOC has released guidance on discrimination against those who are or are perceived to be Muslims or Middle Easterners and has brought several big cases against employers who allegedly discriminate against these groups, underscoring Title VII civil rights protections in the workplace for Muslims and Middle Easterners.
For instance, the commission in 2015 won in the Supreme Court in the case EEOC v. Abercrombie & Fitch Stores. The EEOC in that case successfully sued the retailer for violating the civil rights of a Muslim woman by failing to accommodate her need to wear a traditional headscarf, which the company claimed violated its dress code.
Lopez said the commission always has been “very active” on the issue of protecting people of all religions from discrimination. “I find it hard to believe there would be a backslide on that,” he said.
As for his new job, Lopez said that he sees Outten & Golden as an “outstanding firm” that will allow him to continue working on litigation around workplace fairness and social justice issues.
And just because he’s moved into the private sector doesn’t mean that he won’t stop paying close attention to what his old agency is up to. “I will certainly be very attentive to what the new administration does and I will make my views known,” he said.