February 02, 2018
The Equal Employment Opportunity Commission (EEOC) is a decades-old agency first created to enforce federal employment nondiscrimination laws -- which have extensive authority in public and private employment. Much of its work concerned the proper enforcement of civil rights laws prohibiting discrimination because of one's race, color, national origin, sex, and religion.
However, as time wore on, as is often the case, the corridors of federal power were infiltrated by those not merely interested in evenhandedly enforcing the law, but changing it as activists. Unable to accomplish changes to the law through the proper authority -- Congress -- they resorted to sneaky tactics in memoranda, legal slights-of-hand, and the courts. In the short term, it may accomplish what the activists want, but the price is trust in the system. In the long term, their legal activism causes damage to the public trust, rule of law, and our constitutional order.
Though beginning long before, such activism has spiked and most recently come home to roost at the EEOC under the Obama administration, with its aggressive tactics and strategy to force change upon the law in the area of LGBT issues. The EEOC had taken it upon itself to presume to make law, claiming in its Macy and Baldwin rulings that the Title VII sex discrimination prohibition it is charged with enforcing actually includes "gender identity" and "sexual orientation" too. While several courts have abandoned reason and accepted this legal weaseling, many have shot it down. Yet several unlawful and dangerous court opinions on this issue -- and the even more absurd administrative rulings of the EEOC -- are still out there in the minefield the EEOC has created.
Now, FRC's Travis Weber has catalogued some of the EEOC's damaging work a new publication: "The EEOC's Ever-Expanding Definition of Sex Discrimination,'" focusing on the EEOC's efforts to force private companies to pay out settlements and judgments as a result of its reinterpretation of the law in this area. Indeed, the scope of cases addressed by Travis is actually quite narrow; the EEOC's activism in this area has many more casualties.
Thankfully, President Trump appears to recognize the problem of legal activism more broadly and has taken steps to correct it. His federal judicial appointments have been rock-solid, filled with legal minds who fairly interpret the law and don't twist it to suit their own ends. His Department of Justice under Attorney General Sessions has similarly proceeded, ending Obama-era DOJ activist interpretations of Title VII's sex discrimination prohibition to include "gender identity."
Yet the EEOC remains untouched. It is continuing its troubling strategy of legal activism instead of fairly and objectively enforcing the law, most notably by claiming in the courts that sex discrimination includes "gender identity" and "sexual orientation." On its website, the EEOC still claims it is "responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information." It brags about its activism, and has a whole webpage dedicated to how it has used the law to its own ends. Yet its strategy is without legal authority, and is solely a creation of legal activists within the federal government and executive branch.
As he did with DOJ, President Trump should directly address the problems with the EEOC. There are limits to his ability to do so, given the authority of the EEOC, but there are some things he can do. For example, he has control over nominations. At least one liberal activist Chai Feldblum -- who President Obama nominated to the EEOC -- has been re-nominated by President Trump's administration. There's no good reason for this re-nomination, as Feldblum has been a foe of religious freedom, even at one point stating: "There can be a conflict between religious liberty and sexual liberty, but in almost all cases the sexual liberty should win . . . In fact . . . I'm having a hard time coming up with any case in which religious liberty should win." This is disastrous for religious freedom.
To top it off, Feldblum has unacceptably, openly, and blatantly disrespected the president. As has been standard practice for years, all government officials have photos of the president and vice president installed on their office walls in an administration transition. The standard-issue photos of President Trump and Vice President Pence were placed on EEOC Commissioners' walls, including Feldblum's. Yet Feldblum took down the photos, thumbing her nose at Trump on what typically is not a partisan issue. Even some liberal career employees -- no doubt not fans of Trump -- are apparently uncomfortable with such an inappropriate, blatant act of disrespect. Maybe Feldblum is ultra-confident her nomination will be confirmed. Yet I'm not sure why President Trump would re-nominate someone who is openly showing distain for him and the office he holds.
Tony Perkins' Washington Update is written with the aid of FRC senior writers.