EXCLUSIVE: The ongoing reshuffling of the U.S. Equal Employment Opportunity Commission could have dire consequences for female film and TV directors who’ve been hoping that the EEOC’s ongoing investigation would address Hollywood’s discriminatory hiring practices.
“We’re all talking about it,” said director Rachel Feldman, one of the more than 100 women directors who have been interviewed by EEOC investigators over the past year. “We’re all very concerned that Trump’s new picks are going to keep the EEOC from getting behind women directors and recognizing that the pattern of gender discrimination in Hollywood warrants governmental legal action.”
On Wednesday, President Donald Trump named Republican Victoria Lipnic to serve as acting chair of the EEOC, replacing Democrat Jenny Yang. Lipnic, whose Senate confirmation is almost certain, has a history at the EEOC of viewing discrimination claims through a conservative lens – a view that tends to favor big business over labor, over women, and over women in labor.
In 2014, women’s groups weren’t happy when Lipnic and fellow Republican commissioner Constance Barker voted in the minority against an EEOC’s pregnancy discrimination “guidance” – a statement of the commission’s official policy.
“The Guidance,” Lipnic wrote in dissent, “takes the novel position that under the language of the Pregnancy Discrimination Act, a pregnant worker is, as a practical matter, entitled to ‘reasonable accommodation’ as that term is defined by the Americans with Disabilities Act (ADA). No federal Court of Appeals has adopted this position; indeed, those which have addressed the question have rejected it.”
The LGBT community wasn’t happy in 2015, when she and Barker voted that discrimination based on sexual orientation should not be considered a type of gender discrimination, and as such, should not be prohibited under Title VII of the 1964 Civil Rights Act, which the commission enforces. They lost on that vote 3-2 as well, but the commission’s majority will soon be changing.
Positions like these, while grounded in solid conservative legal theories, are what worry women film and TV directors hoping for federal intervention to address a systemic practice that’s as old as the industry.
There are other causes of concerns. Barker lost her seat on the commission on January 3 when the Senate failed to take a vote on the re-confirmation of her third five-year term. Trump will soon announce his pick to replace her – most certainly a Republican to fill the seat of another Republican.
That still leaves Republican commissioners down 3-2, but that too will soon change. Yang’s term expires July 1, and Trump can give Republicans control of the EEOC for the first time in years. And it could come sooner if one of the other Democratic commissioners resigns before then.
Even so, Trump won’t be able to stack the commission with five Republicans. By law, no more than three commissioners may be “of the same political party” – but that still leaves Trump with plenty of independents, Libertarians and conservative Democrats to choose from when Democrat Chai Feldblum’s term expires on July 1, 2018, and when Democrat Charlotte Burrow’s term ends July 1, 2019.
Trump will also get to pick another key player at the EEOC – a new general counsel to replace Obama-appointee David Lopez, who stepped down last October after serving for 6½ years — longer than anyone in the agency’s history.
According to the EEOC, the general counsel is responsible for “managing, coordinating and directing the Commission’s enforcement litigation program,” and for “developing litigation strategies designed to attain maximum compliance with federal laws prohibiting discrimination in employment.” And it will be Trump’s new EEOC general counsel who will be responsible for directing litigation against Hollywood, if it comes to that.
If Trump’s controversial cabinet picks are any indication, Hollywood’s women directors have a legitimate cause for concern that his EEOC choices will be less than sympathetic to their cause.
But director Maria Giese feels there’s still hope for the cause. Were the EEOC to bring charges, it might not only improve Trump’s image with women, but also would allow him to stick it to Hollywood, where he has few friends.
“It could advantage Trump to blast a spotlight on liberal, Democratic Hollywood hypocrisy in keeping women shut out of the directing profession,” said Giese, who first took the issue to the EEOC in 2013 and then pushed the ACLU to join the battle. “He might like to see the feds go after the studios and networks to shame the industry that stands as the worst violator of Title VII in the United States. Also, supporting the investigation could help Trump improve his dismal reputation among women.”
On the other hand, she said, “There have been concerns that the immensity of the threat Trump poses to civil rights in general may trivialize the battle for women directors. This could be a problem, but the EEOC and the ACLU have clearly demonstrated their understanding that all women’s issues and all civil rights issues are profoundly influenced by our entertainment media.”
Melissa Goodman, the ACLU attorney who spearheaded the push to get the EEOC to investigate, hasn’t lost hope either. “A change in administrations brings changes to views on civil rights, but core systemic gender discrimination that is very obvious from the data is an area where the law is clear and easily to apply and still enforceable,” she said. “And the change in administrations may not have reduced the desire to hold Hollywood to account. It could increase it.”
EEOC spokeswoman Kimberly Smith-Brown declined comment, other than to say: “Title VII of the Civil Rights Act of 1964 prohibits EEOC employees from confirming or denying the existence of charge filings, investigations or administrative resolutions. The only time information about a specific case becomes public is if EEOC files a lawsuit against the employer, which is usually a last resort.”
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