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Oct. 19 — It’s a question of when, not if, LGBT individuals will secure federal protection against workplace discrimination based on their sexual orientation, EEOC General Counsel P. David Lopez said.
Lopez, who announced he’s planning to leave the general counsel post in early December, told Bloomberg BNA the Equal Employment Opportunity Commission has advanced the ball by taking the position that bias based on sexual orientation or transgender status is sex discrimination under Title VII of the 1964 Civil Rights Act.
No federal appeals court ever has held that Title VII reaches sexual orientation discrimination, but the issue is currently pending in three federal circuits. Advocates for LGBT workers think the U.S. Supreme Court could rule on the issue within the next few years.
“I always say we know how this movie ends,” Lopez said Oct. 13. “This is America, don’t bet against freedom. At the end of the day, the whole notion that you can be married on Saturday and fired on Monday will be a relic of history.”
Federal law eventually will proscribe workplace bias against LGBT individuals, Lopez said. “What we don’t know is how long it will take, how we’ll get there and which branch of the government ultimately will take the lead,” he said.
Bills to amend Title VII to prohibit discrimination based on sexual orientation have been introduced in Congress for more than 20 years. The Equality Act (S. 1858, H.R. 3185), the current proposal, would ban bias based on sexual orientation and gender identity not only in jobs, but also in housing, education and public accommodations.
Lopez, who began his general counsel stint in April 2010, said he’s surprised Congress hasn’t amended Title VII to ban discrimination against LGBT individuals.
“I’m absolutely stunned, given where we are in this country, just the enormous change that has gone on, that there are no federal statutory protections prohibiting sexual orientation discrimination,” he said.
Lopez is the agency’s first Latino general counsel, as well as the first rank-and-file EEOC attorney to be nominated by the president and serve as the commission’s chief litigator.
The general counsel supervises more than 200 lawyers in the EEOC’s 53 field offices and Washington headquarters, as well as hundreds more support personnel.
His past as an EEOC trial and supervisory attorney in Phoenix was mostly an advantage as general counsel, Lopez said.
It gave him “a certain amount of street cred” with EEOC litigators, knowing that he, too, had tried cases for a “not necessarily well-resourced” government agency, Lopez said.
From his first days as general counsel, he had “strong personal relationships” with agency colleagues that were “very beneficial,” he said.
But his prior experience might have left him a bit unprepared for Washington’s political rough-and-tumble, Lopez said.
Lopez was confirmed by unanimous consent for his first term, but Senate Republicans in 2014 lined up to oppose President Barack Obama’s nomination of him for another four years as general counsel.
GOP senators hammered Lopez for what they saw as the EEOC’s misguided and overly aggressive pursuit of high-profile litigation, as well as the agency’s purported failure to adequately attempt to settle cases before bringing suit.
The Senate ultimately confirmed Lopez by a 53-43 vote, but he acknowledges it was a tough period.
“It’s a political job. I’m the one who is the face of the litigation program,” Lopez said. “I don’t mind that job and I don’t mind being a flak-catcher at all.”
But “it wasn’t something that naturally grew out of my background,” he said.Tequila Sunrise
Asked about his next stop after the EEOC, Lopez chose to answer literally.
He’s bound for a beach in Mexico. “I need some decompression time,” he said.
But after some relaxation in the sun and surf, expect Lopez back in the employment law arena.
“I definitely anticipate that I’ll continue to work on issues of social justice and workplace inclusiveness,” he told Bloomberg BNA.
During Lopez’s tenure, the courts handed the EEOC some big victories but also a few stinging defeats.
On the plus side, the U.S. Supreme Court decision in Mach Mining LLC v. EEOC, which held judges have only limited power to review the agency’s decisions not to settle charges before filing suit, clears the way to more quickly reach the merits in discrimination cases, Lopez said.
Federal appeals court decisions since Mach Mining confirm that courts shouldn’t spend too much time in debating the EEOC’s compliance with administrative prerequisites to Title VII lawsuits.
Those issues probably had to be decided once the EEOC started filing more lawsuits under its systemic program, Lopez said. That program emphasizes the agency’s investigation and litigation of large-scale cases challenging employment practices that broadly affect an entire company, industry or geographic region.
In Mach Mining and subsequent decisions regarding the EEOC’s pre-lawsuit obligations, the courts have “provided much greater clarity,” Lopez said. “That’s favorable to us being able to get to the issues of discrimination” more quickly, he said.
But the EEOC “took some lumps” in its criminal-background-check cases, Lopez said.
In EEOC v. Kaplan Higher Education Corp. and EEOC v. Freeman, the Sixth Circuit and Fourth Circuit, respectively, rejected the agency’s attempts to show that background check policies had discriminatory impacts on black, Hispanic and male job applicants.
Those courts sharply criticized the EEOC’s statistical expert and the agency’s flawed analysis.
The EEOC needs to get better at building disparate impact cases, Lopez said.
But the EEOC’s subsequent settlements with employers in discrimination cases over their background check policies show the agency’s resilience, Lopez said.
Those results reflect “our ability to learn, grow wiser and to think of new ways of doing things,” he said.
The EEOC’s 2012 enforcement guidance regarding employers’ use of arrest and conviction records and its litigation over potential bias stemming from background checks have made a difference, Lopez said.
The agency’s efforts touched a nerve because they involve race, criminal justice and federalism, all “historically hot-button issues,” he said.
But more employers have revised their background check policies, allowing for more individualized assessments of job applicants with criminal histories. More local governments approved “ban the box” policies, meaning the criminal history question is posed later in the application process.
“There has been a real change in the American conversation” about the arrest and conviction systems, Lopez said. “It’s been bipartisan and it’s been across the country.”
Former EEOC Chairwoman Jacqueline Berrien, who died in 2015 just a year after leaving office, must be commended for her resolve in raising the issue of potential race discrimination from criminal history checks despite the opposition, Lopez said.
“I’ll never forget” that Berrien “was able to sit up there and take the fire,” he said. “And after she’s passed, you can see that it actually made a difference.”
The EEOC also has made a difference in protecting immigrant, migrant and other vulnerable workers from harassment and worse, Lopez said.
“Most employers are trying to do the right thing,” he said. But some “are trying to evade responsibility, to take shortcuts because they’re hoping the employees won’t complain because of cultural barriers or linguistic barriers or fear.”
During Lopez’s tenure, the EEOC sued labor contractors, agricultural employers and other companies, seeking to protect migrant workers, many of them foreign-born, from sexual harassment, race and national origin bias, and retaliation.
Significant EEOC victories included a $5.5 million settlement with Signal International LLC, a $7.6 million judgment against Global Horizons Inc. and a $17 million jury verdict against Moreno Farms Inc., a Florida grower.
The agency also obtained a $240 million Americans with Disabilities Act verdict against Henry’s Turkey Service, an Iowa poultry producer, for harassing, underpaying and otherwise discriminating against 32 developmentally disabled employees who were held in virtual captivity in company bunkhouses.
Those cases spotlighted discrimination occurring “against people who are in the margins, who are forgotten,” Lopez said.
Agency employees prize the efforts to reach these workers, Lopez said. “There’s just buy-in and tremendous pride about the work we’ve done in that area,” he said. “And there’s so much more work to do.”
Among his proudest accomplishments as general counsel is “making this whole idea of a national law firm model a reality,” Lopez said.
For much of his tenure, the EEOC operated under a flat budget that made it difficult for the general counsel’s office to add staff or even replace departing employees.
Lopez emphasized partnerships among the agency’s 15 districts, which meant sharing staff, other resources and expertise across the EEOC’s various offices.
More cases now are litigated by multiple offices and the EEOC doesn’t have to “reinvent the wheel” when it encounters an issue that’s been raised before, Lopez said.
“We see district offices taking pride in each other’s work, learning from each other,” he said. “That’s very effective because the districts always have been a space for innovation” in addressing discrimination issues, he said.
Along with increased coordination, Lopez encouraged agency lawyers to return to “first principles,” to look at the anti-discrimination laws in novel ways.
“A challenge for any manager is to know when to step back, to know when to sort of use silence, to let people really address the issues they feel passionate about,” he said.
Asked if he has any advice for his successor, Lopez said “think of the long game” when pursuing workplace civil rights.
“When you do social justice, it’s always going to be two steps up and one step back,” he said. Setbacks are inevitable, but “you have to be able to get up, dust yourself off and keep pushing forward,” Lopez said.
The EEOC plays an educational role, with outreach to employers, workers and other stakeholders, and the laws it enforces put a premium on voluntary compliance.
A frequent speaker at conferences and smaller gatherings with agency stakeholders, Lopez said he’s “a big supporter” of the EEOC’s non-litigation efforts.
If the EEOC could secure civil rights solely through voluntary compliance and its litigation program became unnecessary, “that’s fine,” Lopez said. “I think that’s what we want.”
“But I think unfortunately you still see the cases of egregious discrimination, you still see these structural barriers, you still see the sexual harassment, you still see a pay gap,” he said.
To contact the reporter on this story: Kevin McGowan in Washington at firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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