This decision came shortly after the Biden Administration’s termination of Peter Robb, the now-former General Counsel of the National Labor Relations Board (“NLRB”). That was the first time in history that the President had fired the NLRB’s sitting General Counsel. Following Robb’s termination, Deputy General Counsel Alice Stock was briefly designated acting general counsel of the NLRB on Jan. 21, 2021, but she was also terminated by the new President by the end of the day.
Presidents have the right to appoint their own general counsel to support the EEOC. Beginning shortly after the news was announced, many began criticizing President Biden for firing Gustafson, specifically suggesting that the move was in contrast with Biden’s call for unity. For example, the Republican-appointed commissioner to the EEOC Andrea Lucas stated, “I find the action taken today by the White House against our independent agency to be deeply troubling, a break from long-established norms respected by Presidents of both parties, an injection of partisanship where it had been absent, and telling evidence of what ‘unity’ actually means to this President and his Administration”.
In response to her termination (linked above), Gustafson wrote: “Your request that I resign provided no reason for the request, and I do not know which of your advisors recommended that you make the request. But please be aware that there are those who oppose my advocacy on behalf of employees who experience religious discrimination and on behalf of constitutional and statutory protections for religious entities”.
Additionally, in her letter rejecting the President’s request to step down, Gustafson provided the following as a partial explanation for her desire to continue in the role of General Counsel:
The Senate confirmation process is often length. If an incoming administration were to cut short the term of a General Counsel, the gaps in which the EEOC lacks a General Counsel would be even more frequent. Congress’s enactment of a four-year term was surely intended to reduce this circumstance. I see the wisdom of it. During my tenure I have supported the hard-working career attorneys, encouraging them to bring as many meritorious cases as possible. Continuity of leadership helps to make this possible.
Despite her eloquence, President Biden still made the decision to terminate her employment. Hopefully, many of the projects Gustafson was focused on will continue. For example, Gustafson was leading a Religious Discrimination Work Group as well as answering to claims of religious discrimination that are filed with the agency and seeking ways the EEOC can improve its approach to the issue. However, it is apparent that Gustafson does not believe the current administration values efforts focused on religious freedom. This is clarified by Gustafson’s letter, which states: “In early February 2021, I published an 8-minute podcast on the Religious Discrimination Work Group’s Listening Sessions. That podcast was removed days later. I can only assume that my resignation would be followed by similar suppression of our work promotion religious freedom.”
At this point, it is unclear how this will impact the EEOC. One safe bet is that the Commission, which has been struggling with resources for years, will not benefit from losing a prominent leader. That loss will ultimately further limit the EEOC’s capabilities and impact in at least the near-term.
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About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://