After GOP Obstructionism, Lesbian EEOC Commissioner Out

Former EEOC Commissioner Chai Feldblum speaking at an LGBTQ Pride celebration at the Department of Agriculture in 2017.
LANCE CHEUNG/ US DEPARTMENT OF AGRICULTURE

A former commissioner of the Equal Employment Opportunity Commission told Bloomberg Law that she will not seek a third term with the agency after Republican Senator Mike Lee of Utah blocked her reappointment and Senate Majority Leader Mitch McConnell refused to call a floor vote on her nomination before the January 2 deadline.

Chai Feldblum, a former Georgetown law professor who became the first out LGBTQ person to serve on the EEOC following her nomination by President Barack Obama in 2009, was accused by Lee of having “radical views on marriage.” Lee’s obstruction of a vote on the nomination meant that President Donald Trump’s slate of EEOC nominees were denied confirmation and as of January 1 the agency, responsible for enforcing the employment nondiscrimination provisions of the 1964 Civil Rights Act, lacked a quorum.

Trump’s re-nomination of Feldblum had come as a surprise, though no more than three commissioners can come from any political party so his slate of three nominees was required to include at least one Democrat.

In a tweet, the Human Rights Campaign said Feldblum “more than deserved to be confirmed for another term” and blasted McConnell for refusing to schedule a full Senate vote.

A spokesperson for McConnell did not immediately respond to a request for comment regarding his refusal to have called a vote prior to the end of 2018.

The Victory Institute, which is a national organization geared toward bolstering LGBTQ leaders in all levels of government, could not be reached for comment.

The impact of having an openly LGBTQ member on the commission was evident in 2015 when Feldblum joined the 3-2 decision finding that employment discrimination on the basis of sexual orientation is sex discrimination under the Civil Rights Act. Two years earlier, she had been a leader in the commission making a similar finding regarding gender identity and expression.

In multiple posts on Medium.com, Feldblum fiercely defended herself against Lee’s allegations, noting that she “did not recognize the person Senator Lee was talking about” and that she cares “deeply about preserving religious pluralism in our country — even if that means protecting religious organizations whose views I disagree with.”

Feldblum told Bloomberg that she was hoping to see Senate Minority Leader Chuck Schumer recommend someone else for the Democratic seat.

“There are lots of incredibly talented people who can serve,” she said.

But on Wednesday, President Donald Trump nominated only one member from the slate he’d earlier submitted — Janet Dhillon, who is Burlington Stores Inc.’s general counsel and would fill one of the commission’s Republican seats. His other Republican nominee from last year’s slate, retired Army Lieutenant Colonel Daniel M. Gade, withdrew his name from consideration in December.

Trump has found no Democratic nominee to replace Feldblum, but with three members the agency would once again have a quorum of commissioners. More importantly for the president, he would finally gain majority control of the EEOC — two years into his term. The Justice Department is at odds with the position that the agency, with Feldblum on board, adopted regarding sexual orientation and gender identity discrimination. The EEOC would undoubtedly revise its position to be in line with the Justice Department.

Trump has also nominated Sharon Fast Gustafson, an attorney in private practice in Virginia, as the EEOC’s general counsel.

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