Former EEOC Chair Charlotte Burrows on the State of Workplace Protections

Episode Notes

Transcript

Matt Greer:

The federal labor and employment law administrative state is in flux with the Equal Employment Opportunity Commission being a prime example. I’m host Matt Greer, and on this episode, which was recorded live at the A BA Labor and Employment Law Conference in Denver, we are joined by Charlotte Burrows, immediate past chair of the EEOC and current fellow at NYU and uc, Berkeley Law Schools. Charlotte shares her perspectives on what has been going on at the EEOC during her tenure regarding gender discrimination protections and the Pregnant Workers Fairness Act. She also addresses the challenges faced by the EEOC, including a significant reduction in staff and the influence of political directives on the agency’s operations. Charlotte provides her thoughts and tips on what lawyers can do to navigate the changing regulatory environment and provide some resources to turn to. I hope you enjoyed the conversation as much as I did and stick around after the episode from my conversation with Salomon Chiquiar-Rabinovich Ph.D. of the Hispanic National Bar Association section for attorneys with disabilities and their allies recipient of this year’s Honorable Bernie’s b Donald Diversity, equity and Inclusion in the Legal Profession Award. Hi there. This is host Matt Greer here again at the Labor and Employment Law Conference for the A BA Labor and Employment Law Section live in Denver. We’re having the opportunity to record some in-person episodes for a change. We usually do things virtually and right now I am very honored to have Charlotte Burrows join us for a conversation about gender discrimination and the status of the EOC and a lot variety of other things. So Charlotte, welcome to the podcast. I’m really honored and happy that you’re able to join us.

Charlotte Burrows:

Well, thank you so much. It’s my pleasure. Delighted to have the chance to chat.

Matt Greer:

Great. As a brief background, probably most of our listeners are aware of your name, but Charlotte was the previous chair of the EEOC, the Equal Employment Opportunity Commission and is currently a fellow at NYU and at uc, Berkeley. So I just got a little background for you. Feel free obviously to add any more details about any of that. I’m sure people were curious. So as I mentioned, you just came off of your session on a panel talking about gender discrimination type developments, I guess for lack of a better word. And I guess I’m just curious if you wanted to start us off by, were there any kind of big takeaways from that for the folks who are listening to our podcast who weren’t there, that might be something that’d be interested in hearing about.

Charlotte Burrows:

Sure. Well, obviously the most important point is always to make sure that the laws that were passed to ensure that everyone has dignity and respected work cover who they were intended to cover by Congress and give those protections that are so vitally important. If you think about the fact that so many people spend most of their time or a good chunk of their time at work, it really is important they have the protections to be able to work in dignity and without discrimination. So what was key on our panel was really looking at how that evolution with respect to the particular protections against sex discrimination has developed and where we are now. With that, it was a discussion that started really at the beginning with the somewhat controversial edition, late edition of Title VII of Sex rather to Title VII of the Civil Rights Act of 1964 and bringing going forward also, we talked a lot about the equal employment opportunities, really critical role in helping develop that.

But one example, I like to give people some sense of the distance that has been traveled after the 64 Act was passed and through the amendments is that in a case called Meritor Savings Bank versus Vincent, that was in the eighties. It was the first time that the Supreme Court recognized that sexual harassment is actually discrimination because of sex and the Equal Employment Opportunity Commission was instrumental in that opinion, filed a brief, I think it was a unanimous brief by all of the commissioners at each step. It often has been a role for the commission. So I think the key issue for us was really looking at currently the interpretations in the courts and the efforts to change yet again the meaning of because of sex and in particular with respect to employees who are transgender or non-binary, that their inclusion under and their protection under Title vii just like everyone else has been affirmed by the Supreme Court in 2000 and Bostock versus Clayton Powell and reaffirmed as well. And that nevertheless is a subject of continued controversy and I would say attempts to undermine those protections to narrow the strength of the Bostock decision.

Matt Greer:

And it’s fair to say that’s kind of where we are right now in terms of that impact and the current policy, I guess, developments that have come about this year.

Charlotte Burrows:

Well, it’s interesting. There are a number of executive orders and clearly the administration has, the Federal Government’s Administration has strongly signaled a desire to have those protections rolled back. There’s no question about that. But when you say where we are, where we are is again, where the law has those democratically passed laws that still govern us, has placed protections for everyone, including transgender persons. The Supreme Court decision of just five years ago is still good law. And so there is unfortunately a gap between the administration’s stated view of the law and what’s actually in the US code in the decisions of the Supreme Court, et cetera. So there’s a bit of a tug of war, if you will, between those two things. And that is not new. The form of it is new, but the fact that the law evolves and that there are conflicting interpretations is something that was really the core of the subject of the panel.

Matt Greer:

Yeah, that was interesting to hear that Otomy, I guess that’s been developing and maybe a slightly different way than it has historically, from what I gathered from that. I’m curious as in your role as the chair of the EOC, I know that the EOC has long been an agency that folks have looked to for guidance in terms of how to look to the law and the statutes and the case law determine that. I’m just curious if you have any kind of sense or any kind of words of wisdom for folks who are listening in about what’s going on on that front?

Charlotte Burrows:

Well, what I would say on that is that the commission traditionally was designed as a, not just traditionally, it was designed in statute as a bipartisan, deliberative body with the idea that having perspectives from different parties, from different walks of life that were experts in employment law, to sit down and look at the best ways to approach problems and to interpret the law would get you to the best results for the American people. And that deliberative approach is something that this administration has decided to eshoo. The law hasn’t changed,

But the approach now seems to, to have the White House direct what the EOC will do. So it was traditionally the, and as you know, there’s a broader conversation with respect to independent agencies and litigation on that, but the gman of all this has been are we going to have the effect for the American people is are you going to have policy and the laws interpretations, the enforcement arm of the EOC with respect to our employment laws decided by a bipartisan group of experts or really dictated by the White House on a political basis? And so that to me is the biggest change. I think the second biggest change has been just the lack of staff, the decline in staff. It is a 40 year low, dramatically lower than I think right now. The EOC stated in its last congressional budget justification that it had 864 employees for context during my term in the Biden years, we had around ebbed and flowed, but 2300,

Matt Greer:

Oh, okay.

Charlotte Burrows:

The EOC had 3,300 when Clarence Thomas was chair. And so there has been a decline, but it has never been as low as it is now. And I suspect that since the congressional budget justification was published, it’s gone even lower than that. 1,864, roughly 1800 don’t hold me to the number, but roughly 1800 employees. So that is really a difficult place to be in. But I think those are the two biggest changes. Going back to the first one, this idea of the rule of law and how the commission will operate. There’s really a pushing against and in some cases, exceeding the authority that Congress has given the commission. So that’s been an important and difficult evolution, if you will, in this administration.

Matt Greer:

Yeah, I mean it sounds like a really challenging environment for the EEOC for folks who have the practitioners out there who are engaging in the EE OOC currently. I don’t know, do you have any tips for those practitioners as they’re interacting with the EEOC these days in terms of where that that’s going and how do, I don’t know anything that you kind of give a heads up to them about kind of things to look out for in terms of interacting with the EOC and probably other federal agencies that are probably maybe facing similar, certainly the NLRB and other FMCS, other labor relations agencies or facing similar issues. So I’m just curious if you have any thoughts on that.

Charlotte Burrows:

The big one is, and this was a theme throughout our presentation, was to lean on the law. We’re attorneys, we have taken oaths to adhere to that. And fortunately that does give us a North Star in many instances, more particularly as to the Equal Employment Opportunity Commission. I would say understanding the authorities that it has and the authorities that it does not have will be particularly important so that as issues arise, it will be if are, you can advise your clients about whether or not the EOCs policies are actually within the authority that they have. I’ll give you an example. The strategic enforcement plan that is a voted document of the Equal Employment Opportunity Commission really binds the entire agency dictates how charge processing is supposed to go. So those charges of employment discrimination that come up, and I think they are looking at somewhere north of 88,000 now per year at the agency.

Those charges, in order to work with that kind of volume, the commission has long given by vote a direction to the entire agency. Here’s how we prioritize these things. And interestingly, one of the, in the voted strategic enforcement plan, which will be binding on the commission until 2028, unless until it’s overturned states that discrimination against vulnerable persons and includes in that harassment against LGBTQI plus individuals is a priority to remedy. So that is the binding position of the EEOC. Not withstanding that the agency has decided to dismiss all of the pending cases, including harassment cases, dealing with transgender workers who had faced discrimination and dismissed them not on the merits, but because they involved claims of transgender discrimination. So you have a binding position that it is a top national priority to make sure that those cases go forward. And at the same time, this decision to dismiss them and at least according to news reports, also to treat those charges differently and dismiss even, not even really truly investigate any

Of them. So that is not the way the EOC moves forward. There have been another of things that have been policy pronouncements even before the EOC had quorum. The EOC can’t make policy without a quorum in the statute. You need a quorum, and that quorum has to take a vote and the majority decides. So the tip I would have is to the extent that there is something that the EEOC is working toward, it’ll be really important to understand is it working, is that within their authority or not? And that will help any good attorney evaluate how to proceed based on the particular facts of the issue, whatever’s at issue. I think the other really important thing is to understand that the individual cases may move quite slowly and to think forward about that. And I say that only because just the numbers, this isn’t inside baseball, but the math

Matt Greer:

Doesn’t, 88,000 and only 800 and some employees, that’s

Charlotte Burrows:

1800. 1800. But so I mean it was a challenge before. It has never been, in my view, the agency has not been adequately resourced in a very long time, but we’ve never seen anything like this. So at least not in modern memory with the statutes that we have, maybe in the very first days when it initially opened its doors,

Matt Greer:

You used a term when we had a conversation earlier called regular order. I don’t know if that’s something that, is that kind of what you’re referring to when you’re referring to the law and the binding things that you’re talking about? Is that the regular order that’s kind of the North star you kind of look to, that’s what the standards have been to extent those changes from that. Is that kind of what people should be looking for?

Charlotte Burrows:

Yes. I mean I would include in that really adherence to the rule of law all the way from the statutes. The EOC is supposed to work and is empowered only to do those things that Congress has said it may do, and it is bound by the regulations that it passed and it is also bound by the voted rules that it has adopted. And so all of those combined are what I mean by regular order. And I guess you could also say practice, right? But I was thinking more of those things that are not discretionary but are required to be followed. Some of them are not being observed and that’s just something to be aware of as one assesses how to interact with the agency and how to move forward.

One thing I do want to say that is really important, the other practice point if it were, is that the Pregnant Workers’ Fairness Act of 2022 was a huge priority for the Biden administration. We were charged with very little time that it passed at the very end of, between Christmas and New Year’s, or right before Christmas in 2022, signed a law between Christmas and new, and then you had a year to write the regulation. That regulation gives a guideline for how to observe the new law and the law requires accommodations for limitations due to pregnancy, childbirth, or related medical conditions. What is important to know is that that statute and enforcing it, I think is also going to prove to be a very high priority in this administration. So that is both because it is the law, but it’s a new law that I think many attorneys even who’ve been practicing a very, very long time are not familiar with yet. And it’s a high litigation priority, I think relatively speaking for this administration just as it was in the last administration. My other tip would be really get up to speed on pregnant Workers Fairness Act issues. I talked about that during the panel as well.

And in particular because it has a different definition of a qualified employee than what the Americans with Disabilities Act has. And so it allows someone to get an accommodation even if they cannot perform the essential functions of the job for it temporarily and for a temporary time as long as they will be able to perform those functions in the near future.

Matt Greer:

Interesting. Yeah.

Charlotte Burrows:

So I posit a pregnant person who can’t lift. It’s normally a require another job or they have a lifting restriction of only up to 20 pounds. They don’t have to be able to perform that now and as long as they could later after the pregnancy is completed, that has to be accommodated. And that was partially addressed under Title VII of the Civil Rights Acts by the Supreme Court in the young VUPS decision, but not entirely. And now it is a clear bright line, I would say, under the statute. And that’s so both because it’s an enforcement priority still and because it’s really important and because it’s a new law, I would say that’s something that people should really make sure they familiarize themselves. If you’re on the management side, make sure your clients understand how to comply. And the EOC in the Biden administration issued a number of very detailed documents in addition to the regulation. I think there’s a webinar still online that are helpful in that regard as well.

Matt Greer:

Yeah, during your session, I was thinking about resources for folks and there was something called, was it eeo leaders.org? A resource. I was wondering if that was something that you would want to mention on the podcast and explain what that might be.

Charlotte Burrows:

Sure. I’m glad you asked. What are the things that we found was challenging for practitioners now? Is that the Equal Employment Opportunity Commission? Both maybe because they don’t have the bandwidth, but also has not been issuing guidance clearly, and frankly, and I regret this, but we thought it was necessary to clarify those areas where we saw a gap between what the law was and the EOCs authorities and the way that the administration was proceeding. And so we did begin to issue documents to just clarify here’s what the law actually states, because there was a lot of confusion and frankly misinformation and coming from the administration. So that is something that I, together with a number of colleagues with the former EEOC officials decided it was incumbent on us to try to help clarify.

Salomon Chiquiar-Rabinovich:

So

Charlotte Burrows:

Eeo leaders.org is the website. It has a number of documents that try to sort of parse through some of what the administration has said with respect to a whole variety of really important issues. And I think it was initiated when there was a lot of confusion from a letter that went out from the EEOC that requested of 20 different law firms, a vast amount of information that looked very much as though it were an investigative letter. And for folks who are familiar with the way the EOC works, it was quite surprising because the, at least in Title vii, which is what this letter addressed, it’s illegal and in fact it’s criminal for the commission to make public any investigation before it goes to court. And so while it appeared on its face to be an investigation, we assumed it couldn’t be because at least I’ll speak for myself. I assumed it couldn’t be because I can’t imagine the commission doing something criminal. At the same time, if it’s not an investigation, there’s no real authority for seeking documents. And so to sort of clarify, and I heard a lot, got a lot of questions, frankly from friends and more broadly from people who were confused by that as well. So that was the impetus of the first document that we issued and we’ve issued a number of others.

Matt Greer:

Alright, thanks for putting it together. It’s good to have resources out there. I mean, obviously it probably is a viewpoint from your history and experience at the EOC, but I think it’s great to have those out there and let people know about the things that are out there. So I know we’re kind of coming close to the end of our time here, but I just wanted to give you a chance, is there anything else you wanted to share with our listeners as we close out this conversation? I really appreciate you being here.

Charlotte Burrows:

Well, I will end, I think where we’ve began, which is that it’s enormously important that we have all of us dignity and respected work. And to do that, we really do need to make sure that our equal employment opportunity laws continue to protect everyone as intended. I so appreciate the opportunity to chat with you and look forward to the rest of the conference.

Matt Greer:

Yeah, great. Thanks again.

Charlotte Burrows:

Thank you.

Matt Greer:

Every year, the A BA Labor and Employment Law Session bestows awards on worthy lawyers and organizations who are leading the way in the practice of labor and employment law this year I was fortunate to be able to sit down for a live conversation with three of the awardees right after they received their awards at the session conference in Denver. Here’s my conversation with Salomon Shaquir Rabinovich. We are very honored to have a award recipient join us here to kind of talk a little bit about his work and what this award means to him. So we have Salomon, and I’ll let Salomon pronounce his last name Chiquiar-Rabinovich. Thank you. And we’ll definitely include that spelling in the show notes as well. But Salomon just received the honorable Bernice b Donald Diversity, equity, and Inclusion in the Legal Profession award. I understand that on behalf of the Hispanic National Bar Association section for attorneys with disabilities and their allies as the entity that kind of received that award.

So first of all, congratulations to you and that organization on the award. It’s a very big honor and I was able to listen in on your speech as you accepted it. It was very moving and I appreciate that. I appreciate you spending some time with us here to tell us a little more about that and kind of preserve that here in the podcast format for our folks who couldn’t be here to hear about your work. So I guess I just wanted to start off, I know in our pre-conversations you mentioned you came from Mexico and came to the US earlier your life. And I guess one of the things I want to ask you is tell me about that and how that kind of fits into the award that you’re receiving and what brought you to the us.

Salomon Chiquiar-Rabinovich:

Yeah. There was a very brief period in post-Revolutionary Mexico where in the 1920s and unfortunately it was not open when it was most needed later on that they were open to have Jewish immigration. So from one side they came from Turkey, from the other side, from Lithuanian, Russia. The progression of education, hard work and the economic status of the community went up because Mexico is not a country of really of immigrants. What we had, there was like a understood protocol that if somebody saw you as a foreigner, you were a foreigner and it didn’t really affect you. Here in the States it will be an outrage, but over there you were like a guest in somebody’s home. I wanted to study the diplomacy and I went to the American Embassy. This was 1980 and there was no intern or nothing. So I saw a brochure and the librarian said, if you want to study diplomacy, go to Georgetown. And I went, they admitted me. I tell that story a lot to my wife, to my children. Going to a foreign country and studying, especially in an elite institution will shape all of your life. And I made friends my gravitation socially when to Hispanics, both Latin America from Spain because that’s where my English wasn’t that great and that was my affinity. I also had a great affinity because of with the observant Jewish population in college, but something I’ve always had is Latin Jews are more close to the European upbringing, even if you were here. But it was another avenue of being well taken. I love my studies, I study international affairs and then I went to do JD and then a master’s international affairs.

Matt Greer:

Yeah, thanks for sharing that story. I think that the story of Jews in Mexico is probably not one that most, I certainly didn’t know much about it. I really learned a lot from you and talking to you about it. So I appreciate you sharing that that’s one part of your identity. I know that you have several parts of your identity that you’ve talked about being really important to practice to your career. And I guess I wanted to ask about the other part of your identity that you mentioned, the disability piece I think you referred to as the invisible disabilities that kind of impact your life and your career. I’m curious if you want to share a little more about

Salomon Chiquiar-Rabinovich:

That. It’s very interesting because I’ve always been very proud and outspoken about being from Mexico and my gratitude for already at the time, after the first Immigration Naturalization Act of the United States, it was very hard for Jewish immigrants to come in masses. Mexico allowed them for a brief period and I’m very grateful for that. And it was a very wholesome place to grow up. My thinking is that, and I said it repeatedly, I’m always proud of being a Mexican, of being a Jew, but I’ve never been proud of being dyslexic. It’s like Uri Allen says when he received the Princip award, he’s hilarious because he said, look, I don’t know why I deserve this, but like Jack Penney said, I don’t know why I deserve this, but I have diabetes. I don’t deserve that either. And along that lines, look, anybody who says that dyslexia, which is a slowness in decoding written and spoken language and with the speed of accuracy that certainly you need in this profession, it’s not like people say, oh, dyslexia is a gift because there are many dyslexia who their perseverance, their genius a lot in the movie theater. But those people, if you noticed, are the founders of companies. Sometimes they are, they’re wonderful, like Steven Spielberg other spot, but

Matt Greer:

Was Steven Spielberg dyslexic?

Salomon Chiquiar-Rabinovich:

Yes.

Matt Greer:

See, I didn’t know that either. Yeah,

Salomon Chiquiar-Rabinovich:

Interesting. He’s very open about it, but you need support. You need allies. And in college, especially in law school where in those days case books were all thick in single space, I couldn’t get through one case like that because you become exhausted. The dean of students reached out to me and he told me, we’re going to help you. How can, and we designed things, this is pre Americans with Disability Act, this 85 to he said, we’re going to have a cassette recorder with the facts, the whole five, seven pages that would put me in a disadvantage. And then another where you record your answers. So he freed me with that. Today what I’m seeing, it’s just a year and a half the revolution that has happened with artificial intelligence that takes away the burden that would hold back dyslexic.

Matt Greer:

Interesting. Okay. I’ve heard a lot about ai. I can’t say I’ve heard that that would be one of the upsides of it is helping people with dyslexia and that’s a really, really interesting and important. So yeah, thank you. And I know when we talked a little bit earlier, you kind of mentioned the affinity groups that have kind of developed, and I think you were on the threshold back in that timeframe that you’re talking about and developing those affinity groups within theBar associations. And I dunno, do you want to share a little more about how that’s helped out in your career?

Salomon Chiquiar-Rabinovich:

It was people like myself whose disability, dyslexia, dysgraphia. There was a lady that she looked perfect, but she had an implant to speak and her speech, well as her hearing were affected, all of us had the common denominator of being unmasked. You had a preference of not having to reveal your disability. That’s an element of tremendous stress and in the long run it makes your emotional life very, very difficult. The demands of Un-Billable hours, I was with Palmer and Dodge then with, you just can’t do it. So to prove value, I always say when they’re just giving you accommodations out of the good heart, that’s not sustainable. It’s a two way street. I was able to give value because my languages, my background in international affairs were very much needed when the law firm that I was expanding in an international network of labor and employment specialists. So when we had a charter meeting of the attorneys with disabilities at the Boston Bar Association, you became free because all of us had in common caring shame and like Professor Luma p Lova wrote in a Harvard Business Review article and she said, autism does not hold you back. Discrimination does

That type of pre-judgment. That’s why I became very interesting in the field of I and did a two year during the pandemic on the area. That is critical leading and managing change. If leaders are not really interested in educating themselves and are just doing window dressing that doesn’t work. Where it works is where they take it. Whenever there’s major change, if you have leaders who are going to pass the message, be part of the process and show why they are committed, then it’s going to work.

Matt Greer:

Thank you so much for sharing that. I bet you that what you just shared will help people who are listening to this who maybe haven’t thought through those issues in the same way. So I really appreciate that sharing,

Salomon Chiquiar-Rabinovich:

That the stigma still exists to the degree that they’re like in this meeting, they tell me, oh Sal, I was so inspired. I have dyslexia too. But they don’t want to be in the list. They want to, they’ll support you, but it’s a risk you reputation, once you request accommodations doesn’t go the way the law makes it follow and they see you as dead weight. And if your disability is preventing you from reaching a certain level of billable hours, then you have to be lucky. I was good with business development and interactions. They were like the international business diplomacy within an alliance of 52 countries, one law firm in per jersey. It still exists. It’s called YU Labor. Okay.

Matt Greer:

I know we’re coming close to the end of our time for the podcast recording. I again, want to thank you very much for spending some time with us. And again, my pleasure, very much congratulations on receiving this prestigious award. And again, thank you for sharing those perspectives. I think it really was valuable and I appreciate you preserving that. So

Salomon Chiquiar-Rabinovich:

Thanks. On the elevating this, we have the Hispanic part, but now with having the A BA naming me as sculpture of the Affinity Bar, we can do a lot, especially in collaborating with foreign bar associations because there are ways in which disabilities are less stigmatized by the language that is used. In England, they call not reasonable accommodations, they call them reasonable adjustments, and that word makes a whole difference. You rent a car, you get in, you adjust your rear view mirror, the sides, the seat. You just want to be comfortable, so you cry. That’s the approach.

Charlotte Burrows:

Yeah.

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