Gustafson was terminated after she refused a demand to resign in early March. Gustafson’s term as General Counsel was set to run through 2023. Her termination marks the second firing of a Senate-confirmed independent agency general counsel, after NLRB GC Peter Robb’s termination mere hours after inauguration. Both firings are unprecedented in the history of each respective agency, and the legality of such moves is still unclear.
A change in EEOC enforcement priorities? During her tenure with the EEOC, Gustafson prioritized combating religious discrimination in the workplace, a stance that invited some concerns over adequate protections of LBGTQ+ workers. Her replacement will likely readjust the EEOC’s enforcement focus back towards racial and gender identity discrimination, although a Republican majority will remain on the Commission through July 2022.
Increasing uncertainty for employers: Gustafson’s and Robb’s terminations are the earliest examples of an anticipated trend of significant policy pendulum swings between administrations. The whiplash has been particularly severe at the National Labor Relations Board, where Obama and Trump-era Boards swung back and forth on a number of important labor and employment issues, including joint employer liability, workplace rules, and representation election procedures, among others. A Biden Board is expected to engage in similar rollbacks and sweeping changes once it has a Democratic majority in late 2021. Gustafson’s termination signals that such pendulum swings could begin to extend beyond the NLRB into all labor and employment policymaking agencies.
Outlook: In his firing of two different independent agency general counsels of the opposing party, President Biden has paved the way for even more regulatory uncertainty. Inconsistent labor and employment policymaking has become the unfortunate norm for employers over the last decade and has made it increasingly difficult to implement effective compliance strategies. The Association and its Future Workplace Policy Council will continue to keep employers up to date on key labor and employment issues.
