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An EEOC under Berrien?
Employers should expect a U.S. Equal Employment Opportunity Commission that is much more focused on enforcement and litigation if Jacqueline Berrien is confirmed as chair of the agency. That's the prediction of several employment attorneys, all of whom expect the Senate to approve her nomination. On July 16, President Barack Obama nominated Berrien to head the federal agency, which is charged with enforcing the EEO laws that protect against employment discrimination. Berrien presently serves as associate director and counsel of the NAACP Legal Defense and Education Fund, a post she's held since September 2004. In that position, she assists with the direction and implementation of the group's national legal advocacy and scholarship programs. In announcing his pick, Obama said, "Jacqueline Berrien has spent her entire career fighting to give voice to the underrepresented communities and protect our most basic rights," adding that he was confident her "passion and leadership" would ensure that the EEOC lived up to its mission. Before joining the NAACP, Berrien served as a program officer for the Ford Foundation's Peace and Social Justice Program and as an assistant counsel with the Legal Defense and Education Fund. She also served as a staff attorney with the Lawyers' Committee for Civil Rights and the American Civil Liberties Union. Stuart Ishimaru, a Democrat, has been serving as the commission's acting chair since Jan. 23, 2009. The acting vice chair, Christine Griffin, was confirmed on July 30 by the Senate to be deputy director of the Office of Personnel Management. With Republican Constance Barker continuing to serve as a commissioner, that leaves two seats vacant until Berrien's nomination is acted on. Employment attorneys interviewed by HREOnline TM agree that Berrien brings strong credentials to the EEOC post. "Her background is substantial," says Tom Lewis, shareholder and chair of the Employment Litigation Group at Stark & Stark in Lawrenceville, N.J. "Her combined educational and practical experience working at the NAACP is a real plus for this position." Still, employers should expect to see a significantly different EEOC under Berrien, experts say. "Berrien is an enforcer and litigator by training," says Lawrence Lorber, a partner at the law firm of Proskauer Rose in Washington. "She brings a different mind-set to the position than her predecessors," Cari M. Dominquez and Naomi Earp. "My colleague, Leslie Silverman, may have played a key role in developing [the EEOC's nationwide program aimed at combating systemic discrimination] when she was vice chair at the agency during the Bush administration," Lorber says, but "[Berrien] is much more likely to act on that program." Silverman is now a partner in Proskauer Rose's Washington office. "The thrust of the agency is going to change," Lorber says. "She's going to bring much more of an enforcement mind-set to the job. And there are plenty of laws to enforce." For Berrien to succeed in her new role, however, she's going to need the necessary resources, he says. "Because this is a nomination the administration cares about, I would think they're going to give her what she needs to get the job done," Lorber says. "The last thing they want to do is put someone in a high-profile position like this and not give them the resources they need; they'd be setting her up for failure." Merrily Archer, who worked for the EEOC before becoming a counsel in the Denver office of Fisher & Phillips, agrees that Berrien has a strong background, but she's worried Berrien won't bring a much-needed balance to the commission. "My concern is that her background may further push the commission in an anti-employer direction when what's really needed is balance," she says. The commission has to enforce EEO statutes, but "it also has to collaborate with the employer community and provide it with the resources needed to comply [with the law]," she says. When I left the EEOC, Archer says, "there were people in the plaintiffs' bar who thought I was joining the dark side. I hope, as chair, she would be able to bring to the EEOC a new sense of working with employers, because they want to comply with the law. Less than two weeks after nominating Berrien, Obama also nominated Dr. David Michaels to head the Occupational Safety and Health Administration. Michaels, an epidemiologist and research professor at the George Washington University School of Public Health and Health Services, is expected to be confirmed as well.
August 6, 2009 Copyright 2009© LRP Publications |
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