At a Salt Lake City warehouse, white managers and employees told Latino workers they were stupid, calling them “lazy Mexicans” and other slurs, according to government lawyers.
Company officials allegedly prohibited Latinos from speaking Spanish, taunted them for speaking bad English and fired people who complained.
The U.S. Equal Employment Opportunity Commission, a federal anti-discrimination agency, sued the company and won a substantial settlement in 2013. Mesa Systems Inc. agreed to pay $450,000, scrap its English-only rule and apologize to the Latino workers.
But if it were up to Victoria Lipnic, recently appointed by President Donald Trump as acting chairwoman of the commission, the lawsuit wouldn’t have happened at all.
The case was one of 20 that Lipnic voted against pursuing in her seven years on the commission. The five-member commission votes on whether its general counsel should file lawsuits in job discrimination cases that are especially big, complex or controversial.
With two more Trump appointments to come, the commission will lurch from a Democratic majority to a Republican one. Lipnic’s voting record shows what is at stake.
The commission’s stated mission is to “stop and remedy unlawful employment discrimination.” But under Trump, Lipnic said it has another imperative: economic growth.
“We enforce some of the most important civil rights laws in the country. Having said that, it is a new administration,” she said in a Feb. 9 speech to her former law firm, which represents employers in labor cases. “And President Trump has made it very clear that he is interested in jobs, jobs, jobs.”
The commission, she said, needs to make sure “we recognize the kind of business practices that are necessary for companies to be competitive today and that those thoughts and notions get incorporated into our policymaking.”
In terms of regulations, she added: “The president has also made it clear … that where there are opportunities to refocus things in a way that will foster economic growth and foster job growth, that is something that we should be mindful of.”
The cases Lipnic voted against likely would not have gone forward under a Republican administration, said David Lopez, the commission’s general counsel under President Barack Obama. Lipnic’s fellow Republican on the commission also voted against all 20, plus many others.
“It shows the consequences of a presidential election on a small but very important civil rights enforcement agency,” Lopez said. “If you don’t file a lawsuit, you’re not going to remedy victims of discrimination, and you’re not going to change employment practices.”
Lipnic also opposed bringing lawsuits against:
- Georgia Power Company for systematically discriminating against disabled job applicants and workers. The company was accused of rejecting workers even though they had doctors’ opinions that they could work. Last year, it agreed to pay nearly $1.6 million and change its policies.
- A financial services company for harassing a transgender employee with epithets and refusing to let her use the women’s restroom. Last year, Deluxe Financial Services Corp. settled for $115,000 and promised to send an apology letter to the employee.
- An Arizona trucking company, for failing to accommodate workers with disabilities, including firing a woman who needed more time to recover from eye surgeries. CTI Inc. paid $300,000 in 2015 and changed its policies.
Lipnic turned down an interview request but said in a statement that she takes many factors into consideration, including the law, the facts of the case and the “proposed use of Commission resources.” She said she actively tries to “forge agreement” with her fellow commissioners.
“My voting record has been clear, though, that where the agency crosses the line into legislating, despite whether I may support the policy goal, these are matters clearly left to Congress in our constitutional system,” she wrote.
Lipnic voted against a quarter of the 77 lawsuits that came before the commission since 2010. Other cases involved discrimination against African immigrants, a young man with an intellectual disability turned down for a Salvation Army thrift store job and men who have beards for religious reasons. Half of her no votes came in disability cases.
All of those cases ended up going forward because of the commission’s Democratic majority. The commission wouldn’t release information about cases that weren’t approved.
Compared with the other Republican commissioner, Constance Barker, Lipnic was much more willing to sue. Barker, whose term ended last year, voted against more than twice as many cases.
Lopez, the former general counsel, credited Lipnic with standing alongside Democrats on some issues unpopular with other Republicans and business interests. For example, Lipnic joined the Democratic majority in saying that employers who screen employees based on criminal history can be guilty of illegal race discrimination.
“She’s reasonable and she’s careful, and she cares about the mission of the agency,” said Lopez, now partner at Outten & Golden, which represents workers in employment lawsuits.
Some of the cases Lipnic opposed ended up failing in court. Judges shot down, for example, the commission’s lawsuit against an insurance claims processing company for failing to hire a woman because of her dreadlocks. A case against CVS Pharmacy Inc. over the company’s severance agreements also went down in defeat.
Lipnic’s record on LGBT issues has been mixed.
She voted against a key decision in 2015 that found discrimination based on sexual orientation to be illegal. But she later supported the commission’s first sexual orientation lawsuits and another one this year.
While she opposed a couple of transgender rights cases, she voted in favor of suing a Michigan funeral home that fired its transgender embalmer. The American Civil Liberties Union has asked to intervene in that case because of worries that the commission may back off its efforts under Trump. The commission is pursuing the case for now.
The two transgender rights cases Lipnic opposed both involved access to bathrooms. It can be used as a pretense for humiliating transgender workers and pushing them out of their jobs, said Harper Jean Tobin of the National Center for Transgender Equality.
“Being blocked from using the restroom has a really profound impact on equality in the workplace,” Tobin said.
In addition to voting on lawsuits, commissioners also decide on guidelines for employers. Lipnic opposed the commission’s stance that employers must provide workplace accommodations for pregnant women, arguing that greater protection for pregnant workers should come through Congress instead. She also voted against guidelines for employers on national origin discrimination and illegal retaliation.
In her recent speech, Lipnic said she’d like to see more of the commission’s cases come to a vote before they are brought to court. That means more cases could be killed.
Age discrimination, she said, will be a commission priority this year, the 50th anniversary of the Age Discrimination in Employment Act.
One of the lawsuits she opposed, however, was a systemic age discrimination case.
Over Lipnic’s objection, the commission sued restaurant chain Seasons 52 for a nationwide pattern of failing to hire people over 40 as servers, hosts and bartenders. Older applicants said the restaurant told them it wanted “fresh” employees and “wasn’t looking for old white guys.” That case is ongoing.