P. David Lopez has served as the general counsel of the Equal Employment Opportunity Commission since 2010, running the litigation program that enforces the nation's employment discrimination laws. Along with several other more high profile Obama administration appointees, General Counsel Lopez faces a confirmation before the U.S. Senate, with a critical vote to take place early this week.
General Counsel Lopez is a consummate public servant who has dedicated nearly his entire career to enforcing the nation's civil rights laws, first as an attorney with the U.S. Justice Department's Civil Rights Division, and then as a local attorney for a dozen years with the EEOC in Arizona. In his four years as EEOC's general counsel, he has transformed the EEOC's 15 regional attorneys and 325 lawyers into a cohesive "One National Law Enforcement Agency." His track record has prompted the National Law Journal to name him one of America's 50 Outstanding General Counsel.
So his reconfirmation for a second term will be an easy formality, right? If only.
Lopez's nomination is not without opposition. Approval by the Senate Health, Education, Labor and Pensions (HELP) Committee was on a strict party line vote. A report authored by Ranking Member Lamar Alexander focused on perceived "litigation failures," highlighting ten cases since 2011 in which the EEOC was ordered to pay defendants' attorney's fees (while acknowledging that only five of these were filed during Lopez's tenure).
A fair look at Lopez's record shows that under his tenure, his staff and he have ably enforced the nation's employment discrimination laws. The EEOC's litigation program has been highly successful, resolving more than 90 percent of the cases filed by agency litigators, while focusing especially on the rights of the most vulnerable workers. Consider the following:
Workers with disabilities: Under Lopez's leadership, the EEOC's litigation staff brought lawsuits to flesh out the Americans with Disabilities Act Amendments Act of 2008 and to vindicate the rights of workers with disabilities. According to a September 2014 HELP Committee report, workers with disabilities have the highest unemployment rate and the lowest workforce participation of any group in the country. The EEOC addressed this persistent problem by bringing more than 200 disability discrimination lawsuits since FY 2011, recovering $52 million.
One of EEOC's most notable cases during this period vindicated the rights of 32 intellectually disabled workers brought to work at a turkey processing plant in Iowa. They were housed in an old schoolhouse, denied medical treatment, and subjected to verbal and sometimes physical abuse. The jury returned a verdict of $240 million, the largest in agency history.
Immigrant workers and farmworkers: The EEOC's docket of immigration cases identifies 30 settlements of cases between 2010 and 2012, with 17 more cases still in litigation. These lawsuits involved some of the most shocking allegations to be found in employment cases: repeated instances of sexual harassment of farmworkers; trafficking of immigrant workers in order to exploit them; physical and sexual assaults; requests for sexual favors; and derogatory slurs. In one notable case, a supervisor harassing a Latina farmworker publicly encouraged the woman's husband to kill her. After the husband did try to kill her, the supervisor blamed her for the husband's arrest and fired her.
In addition, Lopez helped develop the EEOC's Strategic Enforcement Plan, which smartly puts the agency's limited resources to best use by prioritizing discrimination charges that have the highest stakes. And he is known for his extensive outreach efforts, not only to the plaintiff and management bars, but also to employers and workers' groups.
So what of those ten or so losses discussed in the HELP Committee? As the National Law Journal said, "Lopez knows agency lawyers won't -- and shouldn't -- win all their cases." Winning employment discrimination cases is a difficult job, and setbacks will happen. But Lopez's complete record shows that they are the exception to hundreds of victories and settled cases.
Lopez is the right lawyer to lead the EEOC's litigation efforts. In the interest of ensuring that the nation's employment discrimination laws are fairly enforced, the Senate should reconfirm P. David Lopez as the EEOC's general counsel this week.
Sharon M. Dietrich is litigation director with Community Legal Services, Inc. in Philadelphia, PA; Maurice Emsellem is director of the Access and Opportunity Program at the National Employment Law Project in Oakland, CA.