Much like Herschel Walker and his prop police badge, some in the right-wing universe can’t help flaunting power they don’t actually have.
This time, the culprit is Sharon Fast Gustafson, the former, Trump-appointed general counsel to the U.S. Equal Employment Opportunity Commission (EEOC). President Joe Biden fired Gustafson in March 2021 after she refused to resign.
Despite her ouster more than a year ago, Gustafson has apparently been name-dropping her old job to threaten companies that pay for employees’ abortion-related travel. One law firm is calling on Gustafson to be investigated for the alleged multiple letters she’s been sending out, according to a letter first reported by Bloomberg Law.
“Ms. Gustafson no longer has a position with the Commission and she does not have the authority to assert that the Commission has or will bring such charges,” the law firm, the Littler Workplace Policy Institute, wrote. “Ms. Gustafson is using her former position to intimidate employers who provide or are considering providing a benefit that is otherwise legal under Federal law in furtherance of her own law practice and personal beliefs.”
“We ask that your office formally investigate whether Ms. Gustafson’s actions constitute a breach of ethical rules or regulations,” the firm added.
The firm said in the letter that Gustafson had sent the letters to a “large number of US employers,” including its clients.
In the attached Gustafson letter, she warns that the commission may bring discrimination charges against companies that fund the abortion travel.
“EEOC Commissioners may bring Commissioner charges alleging pattern-or-practice discrimination against employers that provide abortion travel benefits because the EEOC’s Pregnancy Discrimination Guidance makes clear that an employer may not lawfully withhold from a pregnant employee or dependent an insured fringe benefit based on her decision not to have an abortion,” she wrote. “To provide a cash travel benefit only for abortion is to encourage employees to have abortions, and such encouragement has been found to be evidence supporting a class claim of pregnancy discrimination.”
“By offering travel benefits for abortion, the employer incentivizes pregnant workers to choose abortion and incentivizes others to pressure pregnant spouses or dependents into choosing abortion, thereby creating an intimidating, hostile, or offensive work environment for affected employees,” she added.
Gustafson did not respond to TPM’s request for comment.
Gustafson begins the letter by asserting her expertise as “a recent General Counsel of the Equal Employment Opportunity Commission.”
The commission is now chaired by President Joe Biden-designee Charlotte Burrows. The general counsel job has been vacant since Gustafson was fired.
“Sharon Gustafson is no longer an employee of the U.S. Equal Employment Opportunity Commission,” the Commission told TPM. “She lacks the authority to speak on behalf of the EEOC.”
The current vice chair of the commission, Biden-designee Jocelyn Samuels, told TPM she doesn’t think Gustafson’s discrimination accusations hold water.
“We of course evaluate each case based on its own facts, but as a general matter, it is hard for me to see how it would amount to unlawful discrimination if an employer simply offers a benefit for medical services that are unavailable in the location an employee works,” she said.
At least one former EEOC chair thinks she knows what’s afoot here.
“I must say, as a member of the bar myself, I wonder about the ethics involved in her apparently looking for clients for what would be bogus lawsuits,” Del. Eleanor Holmes Norton (D-D.C.), the district’s longtime non-voting delegate in Congress, mused to TPM.
When asked if she’d heard of Gustafson during her tenure at the EEOC, Norton laughed.
“No I haven’t, she pops up for the first time with this outrage,” she said. “Now she’s in private practice trying to drum up business — which would go nowhere.”
Norton dismissed Gustafson’s hollow threats as railing against what she sees as a standard issue business practice.
“This notion that large employers provide opportunities for employees to go to states for abortion care seems to me right down the middle and in line with the kind of benefits large employers give,” she said. “It’s pretty crazy and was obviously gonna be discovered.”
