By Dan Gephart, June 2, 2020

I’ve attended the EEOC’s EXCEL Conference for several years as a member of the press, which included a pre-arranged sit-down interview with one of the EEOC commissioners. Sometimes I interviewed the Chair, but usually I interviewed whoever was newest to the commission. (Guess they drew the short straw.)

The interviews didn’t usually delve too deeply into federal sector EEO issues, which is understandable. Many of the commissioners came from a non-Federal background and they were still learning the ropes. Most of their attention was on the private sector.

Chai Feldblum (pictured above to the right), however, showed no reticence in talking about nitty-gritty federal sector issues. Despite being on the job for just a few months, she was not only enthusiastic, she was informed, curious, and engaging – the kind of traits that made her a popular professor at Georgetown University’s Law School. And Feldblum was very approachable, which is almost as impressive as her bio.

Feldblum graduated from Harvard Law School and clerked for Supreme Court Justice Harry Blackmun. She was legislative counsel for the ACLU’s AIDS project, where she played a key role in drafting the Americans with Disabilities Act. She provided legal counsel on the Employment Non-Discrimination Act and other efforts to prohibit discrimination on the basis of sexual orientation and gender identity. She founded Georgetown’s Workplace Flexibility 2010 campaign. And she was the first open lesbian to serve as EEOC commissioner.

She served on the commission from 2010 to 2019 and was even nominated for a third time by President Trump before conservative Utah Senator Mike Lee, a longtime opponent of LGBTQ rights, blocked the nomination.

Feldblum is a partner at Morgan Lewis and director of the firm’s Workplace Culture Consulting & Training, which helps employers implement preventive strategies to eliminate harassment and enhance workplace productivity.

At the EEOC, Feldblum forged successful working relationships with her fellow commissioners, especially then-Chair Victoria Lipnic. This led to some ground-breaking actions, such as a wide-ranging report on workplace harassment and the Commission’s ruling that sexual orientation and transgender discrimination are forms of sex discrimination under Title VII.

With many of us waiting for the Supreme Court’s decision on Zarda, Bostock, R.G. & G.R. Harris Funeral Homes — which will either affirm or reject the EEOC’s approach to sex discrimination — we thought it was an ideal time to catch up with Feldblum. She opted not to share her gut feeling about how the Supreme Court would rule, but, as always, she was thoughtful and informative in her responses.

DG: You spent nine years at the Commission. What do you think is your legacy there?

CF: I feel my legacy falls into two broad categories, substantive and procedural. On the substantive side, I feel the Commission made huge strides in protecting LGBT people under Title VII by ruling that sexual orientation and gender identity discrimination are forms of sex discrimination; in advancing employment rights for people with disabilities by reinvigorating the affirmative action requirements for federal agencies under Section 501 of the Rehabilitation Act; and in protecting pregnant women by issuing guidance that ensured they could receive light duty work when needed, which was adopted in part by the Supreme Court. I feel grateful that I was able to play a leadership role in those substantive areas.

On the procedural side, I enjoyed digging into the logistics of the EEOC and helping with strategic planning for the agency. The digital charge system, as well as the respondent and charging party portals, have enabled the EEOC to continue working well during this COVID-19 pandemic. I will always be proud of the contribution I made towards those advancements in technology for the agency.

DG: What is the biggest difference you see between the private and federal organizations when it comes to EEO issues?

CF: I have been struck more by the similarities than by the differences. In both private and federal organizations, I have met incredibly committed people who care deeply about EEO issues. In both types of organizations, I have met people who are interested in going beyond EEO compliance to broader workplace culture change. And in both private and federal organizations, I have seen people struggle with similar challenges, whether it is a limited amount of resources or skepticism from some quarters as to the utility of investing in workplace culture change. This is probably why it is good that I’m an optimist. I believe that the utility of robust EEO compliance and workplace culture change, in both private and federal organizations, will carry the day.

DG: It’s been almost four years since the Select Task Force on the Study of Harassment in the Workplace was released. Is there anything you would add, take out, or clarify if you were in charge of updating it now?

CF: I believe the Report of the Co-Chairs of the Select Task Force on the Study of Harassment has stood the test of time. It remains a very useful document for anyone wishing to understand the prevalence and scope of workplace harassment, the reasons for under-reporting of harassment, and new ideas for “rebooting harassment prevention.” I do not think there is anything I would take out of the Report. But together with my colleague Sharon Masling [former Chief of Staff for Feldblum at the EEOC], who joined me at Morgan Lewis as a Co-Director of Workplace Culture Consulting, we have built on and expanded the work and the ideas of the Report. Over the course of a year here at Morgan Lewis, we have created a quantitative survey on assessing culture, developed a system for a qualitative assessment of workplace culture, and refined a Respectful Workplaces training. All of this work builds on the research and insights of the Report.

DG: Are you seeing an increase in discrimination and harassment in the workplace and/or in the public space as COVID-19 has taken over the globe?

CF: The evidence is pretty clear that Asian-Americans have been the victims of increased harassment and hate crimes during the COVID-19 pandemic. The Asian Pacific Policy and Planning Council has collected data of over 1,700 incidents of verbal harassment, shunning and physical assaults against Asian Americans since March 2020. These reports come from 45 states and Washington DC and over a third of the incidents happened in public venues. I am sure workplaces are not immune from the possibility of discrimination and harassment against Asian Americans. I feel that the employers I have been able to work with over the past year are well-positioned to stop this form of discrimination and harassment from permeating their workplaces. But we need this to stop everywhere.

DG: What should the EEOC’s approach be to cases involving sexual orientation and gender identity in the federal workplace as we await the Supreme Court ruling?

CF: Keep going until the Supreme Court rules. The EEOC has continued to accept charges from LGBT employees and applicants who allege employment discrimination on the basis of sexual orientation and gender identity. That is precisely what the agency should do, since it has not voted to change its position on this issue. The question is whether the Supreme Court will read the law as the EEOC did. That is what we are all waiting to see.

[Editor’s Note: The Supreme Court decision in Zarda, Bostock, R.G. & G.R. Harris Funeral Homes will be discussed in the session The Latest on Sexual Orientation and Transgender Discrimination during FELTG’s weeklong conference-like virtual training event Federal Workplace 2020: Accountability, Challenges, and Trends July 27-31, 2020. Register for one, several or all sessions. And EEO counselors and investigators can learn more about the topic and earn refresher hours during the July 9 webinar The Latest on Sexual Orientation and Gender Discrimination in the Federal Workplace.]

Gephart@FELTG.com

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