As the two-year anniversary of a landmark decision granting non-discrimination protections to transgender Americans approaches, Chai Feldblum is ready for the next case that could extend those workplace rules to gays, lesbians and bisexuals.
Feldblum, a lesbian attorney confirmed by the U.S. Senate to her second term as a member of the U.S. Equal Employment Opportunity Commission in December, said a decision affirming that gay, lesbian and bisexual people are protected would provide clarity under the law.
“I think it would benefit everyone, the agency, the development of the law if we got a case that presented the sexual-orientation issue as clearly as the transgender issue,” Feldblum said.
The decision in Mia Macy v. Holder, delivered by EEOC on April 20, 2012, affirmed for the first time that transgender people are protected under Title VII of the Civil Rights of Act of 1964 against job discrimination. From that point forward, it was clear the EEOC — the federal agency that enforces laws against workplace discrimination — would take cases for transgender people who say they encountered discrimination, harassment or bias in employment.
But even as she seeks a sexual-orientation case for greater clarity, Feldblum said during an interview with the Washington Blade in her office Monday that historic decision extends not only to claims of gender-identity discrimination, but to sexual-orientation discrimination as well.
“It might also be sexual-orientation discrimination, but for the purposes of the law, that’s sex discrimination,” Feldblum said. “If you have a stereotype that women should be sexually involved with men, that’s a sex stereotype.”
Still, Feldblum tempered the impact of Macy by saying courts could reject EEOC’s interpretation of the law. She insisted that other legal measures, such as an executive order from President Obama barring LGBT workplace discrimination among federal contractors or passage of the Employment Non-Discrimination Act, are needed.
Prior to her confirmation to the EEOC during the Obama administration, Feldblum worked as a longtime advocate for the LGBT community. Starting her work during the AIDS crisis of the 1980s, Feldblum was part of the unsuccessful campaign to stop “Don’t Ask, Don’t Tell” from becoming law in the early 1990s and is credited with drafting the Americans with Disabilities Act and an early version of ENDA.
On the wall in her office is a framed picture of an America flag surrounded by the rainbow colors of the Pride flag — memorabilia from her time with the Campaign for Military Service against “Don’t Ask, Don’t Tell.” Among the plaques and photos on her desk is a small framed collection of her best quotes in the Washington Blade compiled in the 1990s.
Now that so many of the goals on LGBT issues that she worked toward over decades are coming to fruition within the space of a few years, Feldblum said the feeling is “remarkable and wonderful.”
“I attribute it to a host of things,” Feldblum said. “To people being open and honest, to people being courageous and asking for things inside their workplaces even without ENDA, forming alliances, asking for protections, voluntary protection. I attribute it to municipalities passing laws that say we’re not going to have contracts with you unless you have a non-discrimination policy. I attribute it to some of the legal cases. I attribute it to some of the novels. None of it moves by itself.”
The complete Q&A between the Blade and Feldblum follows:
Washington Blade: Almost two years since the Macy decision, how effective do you think that ruling has been in prohibiting or stopping transgender discrimination?
Chai Feldblum: Well, I think it has been effective in light of the sphere in which that opinion operates. So, the ruling was a ruling in the federal sector that said that federal employees who were discriminated against because of their transgender status could come through the EEOC process because we ruled it was a form of sex discrimination. And, because that was a position of the commission, that was going to be the agency’s position not only for federal employees, but for anyone who would show up at our door.
So, that’s not a ruling that any court is bound by. It’s certainly a ruling that a court could look at to see whether the reasoning makes sense to a particular judge, but mostly it’s about effecting our practices inside the agency. So, I would say, inside the agency, it has done the work it’s supposed to do.
I would say that both before the Macy decision and before our strategic enforcement plan, there were probably transgender and gay people showing up at EEOC, complaining about discrimination and had just been told the agency could not do anything to help them. And now, we have a bit over 200 charges in our system across the country that our investigators are investigating, and my guess is some of these folks knew to come to the EEOC because of the Macy decision. I bet you a lot of other folks didn’t know before that they weren’t covered, got discriminated against, they know that when they’re discriminated against, they go to the EEOC, so they showed up at our doors. And now, they’re not being turned away.
Blade: That sounds like you’re making a distinction. You’re saying that decision made a lot of impact within the agency, but there’s still some question about whether the courts are going to agree with you that there was gender discrimination?
Feldblum: Of course, because courts have the autonomy to decide. But do I think the Macy decision has had and will have an impact on how federal and state courts reason? Absolutely, yes. Because I think we did the smart legal analysis.
So if you look at the TerVeer case that came out in the federal district court just last week, the judge didn’t reference the EEOC, but I know that briefs that were put in that case absolutely referenced the EEOC’s decision not only in Macy, but in other federal sector cases that the commission issued. Veretto, Castello, Baker, I mean, other cases where we explained, in that case that sexual orientation could be covered on sex discrimination.
I absolutely believe it will have an effect; it’s just not an absolute necessary effect. When people say do you still need ENDA if you have TItle VII protection, well, of course, why wouldn’t you want a law that very clearly explicitly says sexual orientation is covered, gender identity is covered? Now, of course, you don’t want that law to be so weak that it gives you less than what you potentially have now. And that is where I think the debate will go in the future.
But it’s important not to underplay the importance of the EEOC’s Macy decision and its other sexual-orientation decision because it’s not affecting just the agency because it set a standard for legal reasoning. It’s important not to underplay the importance of those rulings, but it’s also important not to overplay them.
Blade: What was the deliberation leading to the decision and were you surprised that it ended up being unanimous?
Feldblum: OK, so I can’t talk about the deliberations inside the commission. That’s sort of confidential, but also we actually because of the Sunshine Act, we don’t deliberate as a body sitting down — the five of us. You can have conversations one on one. So I had one-on-one conversations with folks who were the commissioners. So, I don’t feel comfortable saying anything about the internal deliberations. I will say that I think it’s a very strongly reasoned legal decision, and I’d like to think that that’s why it got the support it got.
Blade: Can you at least say whether or not you were surprised that all five commissioners said, “Yes, this is the way we should go.” Was it a surprise that was the result?
Feldblum: Again, what I can tell you in terms of process is basically this comes sort of a negative option. We have a lot of stuff that we’re doing, including a lot of cases. So, we tend to do these through electronic voting. And so, what happens is someone has to object and ask, call for a vote, in order for everyone to then to be recorded. And in this case, there were various changes that were made, circulated around, and then there was no call for a vote. So when they don’t call for a vote, we just call it unanimous, but it wasn’t like there were actual people like a click of a button, clicking “yes.” But I mean, no one registered a “no” vote, and that’s important.
Blade: As a result of the decision, is it fair to say that transgender Americans have greater protections under the law in terms of employment thanks to Macy than gay, lesbian or bisexual people currently have?
Feldblum: Oh, no, that’s completely wrong because the point of Macy was it said it’s a form of sex discrimination when you’re acting on the basis of a gender stereotype. And we said you’re inherently acting on the basis of gender stereotype when you suddenly don’t like the fact that someone is transgender. We said it’s got to be because you have some stereotype that someone who’s designated male at birth should stay that way.
We also though at the last part of Macy, and, I think one of the most importance pieces of Macy is we explain that the important sentence in the Price Waterhouse decision, which is the basis for the sex stereotyping concept, was that as an employer what you cannot do is take sex into account. That’s what was illegal — to take sex into account, to have sex matter. That’s what’s illegal under Title VII.
The one way that you can find out if someone is taking sex into account is if they’re acting on a sex stereotype. That is evidence that sex is being taken into account. You don’t even have to go to the sex stereotyping analysis if you can just show straight on that sex has been taken into account. So, the Macy decision happened to have covered a transgender person, so there was no reason for us to talk about how that legal analysis would play out on sexual orientation, but the legal analysis applies whether you’re a transgender person or a gay person.
So, for example, the other federal sector cases that our office of federal operations has decided and, unlike Macy, has not yet come up to the commission for a vote said if you have a sex stereotype that men should be marrying women and not men, that’s sex discrimination. It might also be sexual-orientation discrimination, but for the purposes of the law, that’s sex discrimination. If you have a stereotype that women should be sexually involved with men, that’s a sex stereotype.
And that’s basically what the federal district court decided in the TerVeer case. The only stereotype that played there was the supervisor’s alleged stereotype that this TerVeer wasn’t a real man. It had nothing to do with how he presented, how he walked, how he dressed, how he talked. It happened only when the supervisor found out from his daughter that this employee was gay.
Blade: I was going to ask you if we’ll see another case come up prohibiting sexual-orientation discrimination similar to what Macy did for Mia Macy. But it seems like we’re already there. You don’t think we need to find another case?
Feldblum: It’s a sort of a nuanced thing in terms of commission process. I think it makes sense to have another case that actually lays out the legal logic more clearly. You have to understand, where is [the Office of Federal Operations]? Two floors below? One floor below? They have like 25 lawyers there. They put out something three to 4,000 cases a year. They just cannot in those cases do the type of intense legal analysis that we do as a commission when they come up to us for full analysis and the writing of an opinion.
The year that Macy came out, 2012, we reviewed 13 cases out of the 2[,000] to 3,000, and it’s just that Mia Macy was this very clear jurisdictional case and, I mean, in a way it’s something of a mystery to me as to what cases come and what don’t. But I think the other federal sector cases have applied the sex stereotyping analysis — both pre-Macy and post-Macy. It hasn’t really been done extensive — you don’t have six pages of legal analysis in any of these opinions. You have one paragraph basically telling the agency, “No, no, you dismissed this too quickly. Go back and investigate.”
So, yeah, I think it would benefit everyone, the agency, the development of the law, if we got a case that presented the sexual-orientation issue as clearly as the transgender issue.
What I reacted against was the idea that gay people had less protection right now than transgender people, and I don’t believe that’s the case. It’s not like when a gay person walks into our office and a transgender person walks into our office that the gay person is getting less of an investigation. They’re both getting a solid investigation to determine whether sex has been taken into account.
Blade: How and when do you think we’ll see a specific sexual-orientation discrimination case coming up as it relates to Title VII?
Feldblum: Yeah, it’s just hard to know. The cases are — there are three ways in which the commission speaks, can put it out its views. One is if the case comes from a federal applicant or a federal employee. That’s how Macy came up, and that could be how a sexual-orientation case would come up. It’s like in any court; you don’t know when the case is going to come to you. So that’s one way.
A second way, which the commission used to use a lot in the beginning of its existence up until about the mid-80s were things called “commission decisions.” These were private sector charges when you wanted to explain an aspect of the law, and then the commission just stopped doing those. The last one was in 2000. It issued a commission decision. On that, theoretically, the commission could take any number of any charge that’s currently pending and choose to write a whole commission decision. Since the commission hasn’t done that in 20, 30 years, I’m not sure we will.
And then third, of course, is just to issue guidance through regulation. That’s a long process. For me, I feel it’s just a matter of time in terms of what comes before the commission, but it’s really pretty hard to predict.
Blade: You kind of hit on this, but can we talk more about Peter TerVeer’s case suing the Library of Congress? Do you think that could be the case that would establish definitively that sexual-orientation discrimination is gender discrimination?
Feldblum: There’s a few things about that. In the TerVeer case, the D.C. Circuit Court is the only circuit court that did not have some sentence in one of their circuit court opinions either as a holding as a throwaway line that sexual orientation is not covered under Title VII. Basically, every other circuit has said that. This district court just had more flexibility to just look at the words of the statute and look at the case law.
This is a motion to dismiss, so a motion to dismiss is not going to get appealed. I learned this. I’m such a non-litigator. I’m like, “Oh, is DOJ going to appeal?” Apparently, motion to dismiss, you have to have an interlocutory appeal, which just wouldn’t happen. So all this means now is that Peter TerVeer can have his day in court.
So, either there’ll be a trial and then a result and then that could end up going up, so that will take some time, or the Library of Congress could end up settling with him. So I don’t know what’s going to happen in terms of the TerVeer case, but absolutely it could be if it ends up going to trial and there’s a ruling in his favor and then the Department of Justice appeals it on the grounds that he couldn’t have used this Title VII law in the first place. Yes, D.C. Circuit could end up being a circuit that rules in his favor.
Blade: How does it make you feel that DOJ is saying that he can’t sue on the basis of sex discrimination?
Feldblum: I have no feelings on the matter, and you’ll just have to ask DOJ what their analysis is.
Blade: Let’s talk about some other things. There is using existing law, but people want other things. Most of those efforts are concentrated on the Employment Non-Discrimination Act. Of course, there’s also pressure on President Obama to sign an executive order to add sexual orientation and gender identity to the categories protected under Executive Order 11246. What do you think those can bring to the table that Title VII could not?
Feldblum: The primary thing they could bring, and the reason I’ve always felt that both of those efforts were useful is clarity and certainty. Clarity, because now you’re not having to explain how and when you discriminate against me because you find out that this spouse that I kept talking about, you just assumed was a guy, and suddenly it turned out this spouse was a woman. And then you fire me. I think that’s pretty clear, as I’ve said, you’re taking sex into account. I mean, if I had been a guy married to a woman, you wouldn’t have a problem, but because I’m a woman married to a woman, suddenly there’s a problem. That’s taking sex into account.
So, to me, that seems pretty clear, but it clearly hasn’t been clear to the courts over the years, so what an executive order does for government contractors, what ENDA does for individual employers is make that case. And that clarity then brings certainty because then you have it certain all across the board. So, those two things those actions bring.
I don’t think it means that people are not protected until those actions have taken place. To the contrary, I think it’s a form of sex discrimination. So the only thing to be careful with both of those actions is to make sure that you’re not undercutting what you have in Title VII. That’s, I think, the only thing to be cautious of.
Blade: Regarding those additional protections, White House Press Secretary Jay Carney said the executive order would be “redundant” if ENDA were in place. Were you aware of that and how would you respond to it?
Feldblum: Yeah, I saw that quote. We have Title VII in place right now that prohibits discrimination based on race, but we also have [Executive Order] 11246 that has race in it, and you have an additional whole office, Office of [Federal] Contract Compliance programs that has significant authority over government contractors, being able to do audits, being able to have aspirations of different races and ethnicities. So, I absolutely think the executive order — it’s duplicative in the sense of saying you can’t discriminate, but it’s not redundant because it just has an entire additional enforcement mechanism through the OFCCP.
Blade: The Human Rights Campaign put out a statement saying it couldn’t disagree more with Jay Carney. Would you say you were unhappy with him for saying it’s redundant?
Feldblum: No. I make it a point of not having feeling in this job.
Blade: One other thing with ENDA … is the religious exemption troubling and should something be done to address that?
Feldblum: I think it behooves any advocacy group that is looking to enact ENDA to look very carefully at any provision in ENDA that provides less protection than TItle VII, including the religious exemption.
Blade: So you think the religious exemption should be narrowed?
Feldblum: What I’m saying is that the advocacy groups that are looking to enact ENDA, and therefore have a responsibility to constituents in terms of what it is they’re asking Congress to enact, have a responsibility to look closely at any provision in ENDA that is less than the protection afforded by Title VII, including the religious exemption.
Blade: Is there anything else? Any other aspect of the executive order or ENDA that could undercut existing law if they were enacted?
Feldblum: Well, we have no idea what an executive order would look like. ENDA’s the only one where there’s a document. ENDA expressly prohibits the bringing of disparate impact cases. ENDA expressly prohibits the EEOC from collecting statistics — something we can do with every other group. I think those are two besides the religious exemption that come easily to mind.
But again, for many years, it was my job to literally know every single line in ENDA by heart. It’s not my job any more, but it is the job of the legislative lawyers, and I hope they are scouring ENDA line by line.
Blade: Let me ask you the question this way, do you want ENDA in its Senate-approved form to pass into law?
Feldblum: I have no comment.
Blade: Another idea is taking the existing executive order and interpreting that to protect transgender workers in the same way that Macy did. Secretary of Labor Tom Perez said that it’s under review. Has the Labor Department asked EEOC or has EEOC provided any information to DOL for this review?
Feldblum: I have no knowledge of whether anyone has reached out to the chair, which is the way that most people usually ask things of the EEOC. They ask the chair’s office. No one has reached out to me individually, but I would say the Macy decision sort of stands for itself in terms of legal analysis. The Department of Health & Human Services has used Macy as well as the Veretto and Castello cases in deciding how to interpret the sex discrimination provision in the Affordable Care Act. The Department of Education has used the Macy decision as well as the other federal sector decisions.
The Department of Education actually was an agency that asked me to come over and talk to them, so I did talk to them maybe about six months ago. The Office of Civil RIghts just wanted to talk about the Macy decision and the implications for coverage of kids in schools. So, obviously, anyone calls me, I’ll go. But largely I feel the decision stands for itself.
Blade: Would you volunteer information to the Labor Department about the Macy decision?
Feldblum: Another thing I’ve learned in this job is (a) there’s enough to do just sitting in this office dealing with the agency and (b) it’s better to be invited than just to show up.
Blade: Let’s talk about the big picture. A lot of these LGBT issues you’ve been fighting for your entire life are now coming to fruition. How does that feel? A lot of these you’ve been fighting for for decades, and now in a short space of time, they’re all happening. I know you said you won’t talk feelings, but will you make an exception?
Feldblum: I am permitted to have a feeling about that. I’m willing to have a feeling about that. It feels remarkable and wonderful. It’s definitely living through history. We talk about taking lessons from history and it’s not very often that lessons from history are also lessons from one’s own lifespan.
So, I think the culture has done an amazing amount in terms of enabling the changes. I think the AIDS epidemic was horrifying. It’s sort of hard to describe to people who didn’t live through it — what it was like to have your friends dying all around you. But it also meant that a lot of people were outed to their families not intentionally. People who would never — the families would never have known, or would never have talked about the fact that they were gay. It would always have been Uncle George who went over to San Francisco or New York.
You now have people across the country, ordinary families who now knew they had a gay son or a gay brother. And that’s when I came into this movement. I graduated law school in ’85 and started working on AIDS issues after two years of clerking, so ’87, ’88. People came out and as the disability grew, as the disability world is learning right now, and it’s something Anupa and I work on together is trying to get people with disabilities to come out, so as to destigmatize.
It’s so important that people can see a competent strong person with something that had been stigmatized. I don’t think we can underestimate the importance of “Will & Grace,” the importance of “Ellen,” just these simple things that made it ordinary.
And so, one of the things, in 2004, I started a enterprise called the Moral Values Project, which was basically just a website and a few ideas. It’s a moral values website that still exists, although I obviously haven’t done anything on it since I came on the commission.
It had three very basic ideas. One, that sexual orientation itself was completely morally neutral. It had no more moral veilance than the color of your eyes or the color of your skin. It was just what it is, sexual orientation. That acting in accordance with your sexual orientation, or acting in accordance with your gender identity was actually a morally good thing. Because the gay rights movement had always tried to stay away from discussions of morality, And I thought that was a losing cause, that people did care about morality, they did care about what seemed right or wrong to them.
I didn’t see how we would ever get a non-discrimination law passed as long as people felt that gay people and straight people were not similarly situated. If you felt they were different in some way, then it’s legitimate to treat them differently. So I just felt that we had to just keep coming out and coming out and coming out, so that people saw there wasn’t a difference.
Not only wasn’t there a difference, so there was no reason not to treat people the same, but there was actually something morally wrong in actually making it a cause for difference. It was morally wrong to have the color of your skin mean anything in your life in anything. Same thing here. If you do things that you stop people from acting on their sexual orientation, when acting in accord with your sexual orientation is morally good, that’s a bad thing. So that’s what I feel is I’ve seen shift.
They still don’t talk about gay people being morally good. No one sort of says it that way. But something shifted in their brain. They don’t think, at least a majority doesn’t think, it’s so morally bad that they should be discriminated against.
Blade: And you attribute that to people being open and honest and positive media coverage?
Feldblum: I attribute it to a host of things. To people being open and honest, to people being courageous and asking for things inside their workplaces even without ENDA, forming alliances, asking for protections, voluntary protection. I attribute it to municipalities passing laws that say we’re not going to have contracts with you unless you have a non-discrimination policy. I attribute it to some of the legal cases. I attribute it to some of the novels. None of it moves by itself.
Blade: Lastly, I want to get personal. Your partner, Nan Hunter, an attorney at Georgetown University is someone I quote quite a bit. Can you share with us any future plans?
Feldblum: I assure you if and when we ever get married, the Blade won’t be the place that people will ever know about it. But we are not married at this point….Our plans are to continue to support each other and the good work that I think we’re each doing. We certainly do not always agree, and that makes for interesting dinner conversations, but clearly both of us care a lot about these issues. Personally, I feel very lucky that I got to be with the love of my life.
Former Ambassador Daniel Baer explains it all on Ukraine crisis
Expert downplays strategic thinking behind Putin’s move
Daniel Baer, who worked on LGBTQ human rights and transatlantic issues as one of several openly gay U.S. ambassadors during the Obama administration, answered questions from the Washington Blade on Ukraine as the international crisis continues to unfold.
Topics during the interview, which took place weeks ago on Jan. 27, included Putin’s motivation for Russian incursions, the risk of outright war, predictions for Russia after Putin and how the crisis would affect LGBTQ people in Ukraine.
Baer was deputy assistant Secretary of State for the Bureau of Democracy, Human Rights and Labor and U.S. ambassador to the Organization of Security & Cooperation in Europe.
The full interview follows:
Washington Blade: What’s your level of engagement with this affair? Are you doing any consulting work? Is the administration reaching out to you at all?
Daniel Baer: I actually think the White House is doing a pretty good job of recognizing that they need to not only have press conferences, but also talk to other people who are trying to figure out how to be constructive critics, idea generators from the outside.
Blade: OK, so you’re being solicited and engaging on this issue. My next question for you is why do you think Putin is doing this at this time?
Baer: So, I guess taking a step back from the whole thing, one of the things about a problem like this is that everybody is searching for the right answer assuming that there is a like comfortable or compelling or intellectually accurate answer, and I actually think we’re just in a really hard moment.
I don’t know why he’s doing it now. And in fact, I think that one of the puzzles that we haven’t solved yet is that all the things that he says are the reasons that he’s doing it — that he feels encirclement by NATO, … or that the situation in Ukraine is untenable — none of those things have changed. Setting aside the fact that they’re spurious, it’s not like there’s been some new move in the last 12 months that has precipitated [a reaction] on any of those fronts that you can say, “Oh, well, he’s responding to the recent meeting where Ukraine was offered membership in NATO, or he’s responding to a change in government in Ukraine that it’s clearly anti-Russia, or any other move that we’ve done.” The explanation just doesn’t hold water, and so I think we need to look for alternative ones.
The best I can come up with is actually just a broad — it doesn’t actually explain this particular moment, but I think you could look at the timing of his life. He has, I don’t know, 10 years left. And during those 10 years, it’s unlikely that Russia is going to grow more powerful; it’s much more likely that it’s going to become at least relatively and probably nominally less powerful. And so, if you’re unhappy with the status quo, and you feel like you’re a declining power, and you don’t have endless time, there’s no time like the present. And you’ll make up whatever reasons you need to in order to justify it.
I also think there’s a tendency on our part to attribute far more “strategery” to Putin than there necessarily is. I mean, he’s a bully and a thug. I think the whole Putin’s playing chess and we’re playing checkers is actually completely inverted. We’re in our own heads that there’s some kind of nuanced position that would mollify him. He’s just a gangster and he’s taking a punch because he has one. And I don’t think it gets much more complicated than that. And so, I guess the answer to why he’s doing this now, because the international conditions are such that he feels like the United States is focused domestically, the Ukrainians are not moving forward with succeeding to build — they’re kind of in stasis on building a European state— and he has, you know, he has the space to take a punch, so he’s contemplating doing it, or he’s already decided to do it. And he’s just extracting as much as possible before he takes it.
Blade: That leads me to my next question: What is your judgement of the risk of out and out war?
Baer: I don’t know because I have two hypotheses that cut both ways. One is that I think Putin is vastly underestimating the degree of resistance. On the other hand, I think that nothing short of domination is satisfactory. And so, I don’t know. I guess I think there’s a 90 percent chance that he does something, and I think there’s a 75 percent chance that what he does is not an all out invasion or ground invasion, at least not at first, but rather something that is aimed at confusing us. So some sort of hybrid or staged or false flag kind of attack in tandem with a political coup in Kiev, where he works to install a more Russia-loyal leader.
The thing with the ground invasion is that Russian soldiers’ moms are one of the only, like, powerful political forces in civil society in Russia. I just don’t see any way that a ground invasion doesn’t involve massive Russian casualties, even if they will be dominant. The people who are going to impose the consequences on him will be the Ukrainians, not the rest of us, and he should not invade, and if he does, we should, frankly, work hard to make it as painful and difficult for him as possible.
Blade: What will that look like?
Baer: I think we should at that point continue — we shouldn’t pause, we should continue to send the defensive equipment and backfill as much as possible their ability from an equipment basis to resist.
Blade: So if we were to look at a model for past U.S. engagements. I’m thinking Greece under President Truman, which was so successful that nobody really knows about it, I don’t think. Is there any model we should be looking toward, or not looking toward?
Baer: No, I guess. I’m not sure there’s any good historical model because obviously, any of them you can pick apart. I do think that one thing that has gotten lost in a lot of the analysis — and this goes back to Putin being a gangster thug, and not being such a genius — is there’s a moral difference between us. The reason why Putin gets to control the dialogue is because he’s willing to do things that we aren’t willing to do — as gangsters are, as hostage-takers are — and so yes, they get to set the terms of what we discussed, because we’re not holding hostages. We’re trying to get hostages released. And the hostage-taker has an upper hand and asymmetry because they are willing to do something that is wrong.
We shouldn’t lose the kind of moral difference there. Nor should we lose sight of the fact that Ukraine is being menaced. And I’m not saying it’s our obligation [to intervene militarily], certainly not our obligation. They aren’t a treaty ally. We have neither a political obligation nor a moral one to necessarily risk our own lives, our own soldiers in defense of Ukraine. But if Ukraine wants to defend themselves, there’s a strong moral case to be made that anything, short of risking our own lives, is something that is morally good. We generally believe that self-defense from lethal threat is a reasonable moral cause and assisting others in defending themselves is too — I think there’s a lot of back and forth that get glossed over whether that’s a provocation or whatever, and I want to say to people stand back, look at this: we’ve got one party that is attacking another. And the question is, does the other have a right to defend itself? Yes. And if they have a right to defend themselves, and they also have a right to have whatever assistance people will offer them in defending themselves.
That doesn’t mean that they get to demand that we show up and fight in the trenches with them, of course, and I don’t think there’s any serious people who are recommending that but it’s a good thing to help them. It’s not like a technical thing. It’s a good thing to help
Blade: Getting into that moral background, one thing I want to ask you was about the significance of what would happen in this concept of democracy versus autocracy. First of all, how much is Ukraine a functional democracy, in the sense that if we’re defending Ukraine, we are defending a democracy, and what signal do you think it would send if that Ukrainian government fell to Russian autocracy?
Baer: I think the institutions of government that the Ukrainian people have are not worthy of the Ukrainian people’s own demonstrated commitment …
They are not worthy of the Ukrainian people’s own demonstrated commitment to the idea of democratic institutions. So the answer is today’s Ukrainian government is a mixed bag and it’s very hard to build, on the rot of a Russian fiefdom, a functioning democracy, so I think it’s a mixed bag. I don’t want to sound like I’m minimizing [the changes], or that they’ve completely bungled an easy project. It was always going to be a hard project, and it was never going to be linear.
But I think that what we’ve seen from the Ukrainian people — by which I mean not Ukrainian people, but people of Ukraine — is that there is a broad part of society that a) does not want to live under a Russian thumb and b) sees its future in kind of European style democracy. And so I think that if there was, there’s no question that the Russian attack would be in part about subjugating the people of Ukraine and forcing them to live under some sort of new Russian satellite. And I think that there’s little space for serious argument that that’s something that the people of the country wish to have.
Blade: But I’m just kind of getting at — you’re kind of minimizing that this is a strategic move by Putin, but if he were to successfully dominant Ukraine it becomes a Russian satellite isn’t that saying like, “Well, ha ha West, you thought the Cold War was over and there’s going to be just be a unipolar world in the future but no, we’re gonna we have this we’re back and we’re gonna create a multipolar world for the future.”
Baer: Yeah, I mean, my answer to the Russians who always raise the multipolar world to me is, “Fine, it’s going to be a multipolar world. What makes you think that Russia is one of the poles?” Poles by definition draw people to them, they are compelling and a pole attracts, magnetically or otherwise, and there is nothing attractive about the model that Russia is pursuing. And if the only way that you can be a pole is by subjugating, to force your neighbors, you are proving that you are not one.
I think the benefits for Russia are far smaller than Putin thinks and I think the consequences for the rest of the world of allowing a violation of international order to go forward are much larger than many people recognize.
Blade: But that was their approach when they were the Soviet Union. They were subjugating the Eastern Bloc through Russian force. They did have, in theory, the concept of their worldview of you know, of socialism, or whatever you want to put it charitably, was going to be the right way to go. Is there really that much of a difference?
Baer: Yeah, however disingenuous it was, they did have an ideology . So you’re right, that was a key distinction. The other thing is that the Soviet Union in relative size — its economy and population etc. — was much larger than Russia is today. And Russia is shrinking, and its economy is less diverse than the Communist one was. I think it’s a delusion to think that they’re going to kind of rebuild an empire, even if yes, because of their willingness to do awful things, they could potentially for a time politically control through violence, their neighbors. I just don’t — in a multipolar world, I don’t see Russia being one of the poles, at least not on its current path.
Blade: How would you evaluate the U.S. diplomatic approach to this issue?
Baer: There’s been very clear over-the-top effort to include the Europeans at every step — meetings with them before each meeting and after each meeting, to force conversations into fora that are more inclusive and stuff like that. And I think that Secretary Blinken is rightly recognizing the need to kind of play a role of kind of keeping everybody on the side while we test whether diplomacy whether there’s anything to do, whether there’s any promise with diplomacy.
I think there’s kind of, sometimes kind of, two camps in U.S. foreign policy circles. One is like: We should give the Russians what they want because it just doesn’t matter that much. War is much worse than anything that we would give them. And another is that we can’t give them an inch and we have to punch them in the face whenever we can. And I think both of those are kind of knee-jerk positions that have become a bit religious for people and neither of them is paying attention to the practical challenge that’s in front of the administration, which is like this guy’s threatening to invade and we need to identify whether there’s any opportunity for a functional off ramp, and that doesn’t mean we do that in a vacuum and ignore the long-term consequences, but our problem is not a religious one, it’s a practical one. And I think they’re doing a pretty good job of threading the needle on that and being not too far forward and not too far back.
Blade: Do you see any significant daylight between the United States and Europe?
Baer: No, I mean, no more than the minimum that is possible. There’s a lot of talk about Germany these days. Look, I think some of the things they say are not particularly helpful, but I don’t actually think that in the long run, if Putin invaded, I don’t think that they would hold up sanctions or anything like that. So I think they’re on our side, even if they’re talking out of both sides, in some cases.
Blade: I am wise to the fact that this is a nuclear power. It might be a little old school, but could escalation get that far?
Baer: There can’t be war. There can’t be war between NATO and Russia. It should be avoided. Obviously, there can be, but it should be avoided.
Blade: How committed do you think President Biden is to protecting Ukraine?
Baer: Reasonably so. I think he’s enough of an old school trans-Atlantist that he understands that this isn’t just about Ukraine.
Blade: I was wondering because he had those comments from his press conference about “minor incursion” and I’m just wondering if you’re reading anything into that or not.
Baer: No, I think that was that was a — I think broadly speaking, everything he says is in line with the kind of view that you would expect. And of course, one sentence can catch [attention]. That wasn’t what he meant. What he meant was that he didn’t want to draw a “red line” that would prejudge policy in response to something short of the most extreme scenario.
I think it is a good caution to not obsess over a single sentence and to look at the broad considered policy statements.
Blade: What do you think if you were looking for developments, like what would you be looking out for is significant in terms of where we are going to be going in the near future? This is one thing to keep an eye out for but is there anything else that you are kind of looking out for in terms of the near future?
Baer: I guess I would look out for whether or not the United States joins meetings of the so-called Normandy Format, which is the France, Germany, Ukraine and Russia grouping, which has so far been unsuccessful, but I think can only be successful as the United States joins it, but the Russians, I think have misgivings with the idea of our joining it.
Blade: I’m not at all familiar with that. What makes this forum particularly so —
Baer: So it was started in the summer in like June of 2015, on the margins of some meeting between Merkel and Hollande. The French and the Germans are very committed to the idea that they might be able to mediate peace between Ukraine and Russia. It was supposed to implement the Minsk Agreement, and it just hasn’t been productive so far. I don’t think that the Russians will do anything — I don’t think the Ukrainians feel comfortable negotiating anything without the Americans at the table. And I don’t think the Russians feel like anything is guaranteed without the Americans at the table. So I just, I’m fine with France and Germany taking the lead, but I think the U.S. has to be there.
And there was a meeting of this group in Paris yesterday, and which the U.S. was supportive of, and so I’m watching to see whether or not the United States gets added in some ad hoc way, whether there are future meetings. I guess the reason I would watch it, if the U.S. were to join future meetings that would signal to me that it’s actually there’s some diplomacy happening there.
That’s meant to be focusing mainly on the existing Russian invasion, the occupation of the Donbas, so that’s not about the threat of the new invasion, but it would be interesting to me if there was forward movement on other parts of Ukraine. The announcement of the American ambassador is one. I think that last week movement of troops into Belarus was a game changer for the U.S., because there are all kinds of new implications if you’re using a third country as your launchpad for war, and so it complicates things and it also looks more serious if you’re starting to deploy to third countries and stuff like that. So I think that was that last week, you noticed a difference in the U.S. tone and tenor in response to that.
So things like that. But in general, like what I would do and I don’t think people always catch this is because there’s a boiling frog aspect to it. There are statements coming out from the White House or State Department. Almost every day on stuff related to this and like last week, there was a noticeable change in the tenor as the U.S. became less, I think more pessimistic about the prospects of diplomacy and those I don’t have anything better to look for in those statements as tea leaves, in terms of what the U.S. assessment is of the prospects of the escalation are, so it’s bad.
Blade: Right. That’s very sobering.
There’s a lot of talk, and I’ve just been seeing some like about in terms of, there’s like comparisons to Afghanistan and making sure that all Americans are able to get out of Ukraine. Is that comparing apples to oranges?
Blade: And could you unpack that a little bit? I mean, I can kind of guess the reasons why. How is that apples to oranges?
Blade: Well, the level of development in Ukraine in terms of infrastructure and transport and stuff like that is not comparable to Afghanistan. I think it would be– if there were a Russian invasion–you would definitely want to, obviously, for safety reasons, it’s not safe to be in a war zone, so you would want people to be able to evacuate and you’d have to plan for that.
A major concern [in Afghanistan] was also that there were tens of thousands, if not hundreds of thousands of locals who had worked for the Americans. The Americans that are in Ukraine are not a departing occupying power. There’s just not the same footprint there — the Americans are in Ukraine or there as business people or young [people working on] democracy assistance or whatever. And it’s just it’s a different context.
Blade: Why do you think the Russians put up with Putin? I mean, this is a country that was a world power and I would think has some economic potential just given its sheer size, first of all, and they do have oil to offer people. So why aren’t the Russians like angry at him for obstructing their participation in the global order as opposed to just putting up with him for years and years and years.
Baer: Successful instrumentalisation of cynicism. The lack of a belief in an alternative will keep you from fighting for it.
Blade: That’s pretty succinct.
Baer: I mean, I don’t think there’s any question that the people of Russia could be better off or different in terms of kitchen table issues, and ease of navigating the world, prospects for their future for their children’s future. The amount of money that Putin has invested into military modernization that Russia can ill afford, while he’s cut pensions and social services and health care. It’s just it’s objectively true that the average Russian person would be better served by a different leader. But he’s done a very good job of effectively selling off the country for profit and persuading people through repression and propaganda that there is no alternative.
Blade: And Putin won’t be around forever. Once he finally goes, is an alternative going to emerge, or will it be the next guy in Putin’s mold?
Baer: I think it’s far from clear that what comes after Putin isn’t worse and bloody. Regimes like this don’t reliably have stable transitions.
Blade: Wow, okay.
Baer: Yeah, we shouldn’t… we should be careful about wishing… wishing for his demise.
Blade: That’s good to know. It’s kind of a frightful note for me to end my questions. But actually before I sign off, there’s one more thing too because I do kind of want to talk about the intersection about your old job in democracy and human rights and then a Venn diagram of that with your experience in Eastern Europe in particular. Do you have a sense of what’s at stake for LGBTQ people in Ukraine or if they’re in more danger right now than they would be otherwise?
Baer: That’s a good question. I mean, my knee jerk reaction is yes. That — as mixed of a picture as Ukraine has been in the last seven years, or eight years — there have been meaningful steps forward, and certainly, in terms of visibility.
I guess, in the sense that Ukraine is better than Russia today, if you’re gay, if Russia is going to occupy or control Ukraine we can expect that it will get worse because it will become more like Russia.
Trump ribbed Pence for thinking ‘it’s a crime to be gay,’ new book says
Former president openly wanted gay Fox News analyst for Supreme Court
Donald Trump, in the days before he took office after the 2016 election, openly contemplated naming an openly gay Fox News contributor to the U.S. Supreme Court amid concerns from social conservatives about his potential choices and ribbed former Vice President Mike Pence for thinking “it’s a crime to be gay,” according to the new book “Insurgency” detailing the former president’s path to the White House.
The key moment between Trump, Judge Andrew Napolitano and Pence took place during the transition period after the 2016 election when Trump invited the other two for a meeting at Trump Tower. That’s when Trump reportedly took the jab at Pence.
“During their meeting, for part of which Mike Pence was present, Trump ribbed Pence for his anti-gay rights views,” the book says. “Addressing Napolitano, Trump gestured toward the archconservative vice-president-elect and said, ‘You’d better be careful because this guy thinks it’s a crime to be gay. Right, Mike?’ When Pence didn’t answer, Trump repeated himself, ‘Right, Mike?’ Pence remained silent.”
The potential choice of Andrew Napolitano, who was fired last year from Fox News amid recently dropped allegations of sexual harassment from male co-workers, as well as other TV personalities Trump floated for the Supreme Court, as detailed in the book, were among the many reasons conservatives feared he wouldn’t be reliable upon taking the presidency. Ironically, Trump would have been responsible for making a historic choice for diversity if he chose a gay man like Napolitano for the Supreme Court, beating President Biden to the punch as the nation awaits his selection of the first-ever Black woman for the bench.
The new book — fully titled “Insurgency: How Republicans Lost Their Party and Got Everything They Ever Wanted” and written by New York Times political reporter Jeremy Peters, who is also gay — identifies Trump’s potential picks for the judiciary as a source of significant concern for conservatives as the “Never Trump” movement was beginning to form and expectations were the next president would be able to name as many as four choices for the Supreme Court. Among the wide ranges of possible choices he floated during the campaign were often “not lawyers or judges he admired for their legal philosophies or interpretations of the Constitution,” but personalities he saw on TV.
Among this group of TV personalities, the books says, were people like Fox News host Jeanine Pirro, whom Trump “regularly watched and occasionally planned his flight schedule around, directing his personal pilot to adjust the route accordingly so the satellite signal wouldn’t fade.” Trump told friends Pirro “would make a fine justice,” the books says.
Trump potentially making good of his talk about naming Napolitano as one of his choices for the Supreme Court “would have been doubly unacceptable to many on the religious right,” the book says. Napolitano, a former New Jersey Superior Court judge, was friendly with Maryanne Trump Barry, Trump’s sister and a federal judge with a reputation for liberal views, such as a ruling in favor of partial-birth abortion, and is also gay, both of which are identified in the book as potential concerns by the religious right.
Napolitano and Trump were close, the book claims. Napolitano, as the book describes, had a habit of telling a story to friends about Trump confiding to him the future president’s knowledge of the law was based on Napolitano’s TV appearances. Trump told Napolitano: “Everything I know about the Constitution I learned from you on Fox & Friends,” the book says.
The book says the meeting with Trump, Pence and Napolitano when the former president took a jab at Pence in and of itself suggested Trump “was indeed serious about giving the judge some kind of position in the government.” Napolitano, known for making outlandish claims as a Fox News contributor —such as the British government wiretapped Trump Tower — never took a post in the Trump administration.
The new book isn’t the only record of Trump ribbing Pence for his anti-LGBTQ reputation. A New Yorker profile in 2017 depicted a similar infamous meeting with Trump and Pence in which the former president joked about his No. 2’s conservative views. Per the New Yorker article: “When the conversation turned to gay rights, Trump motioned toward Pence and joked, ‘Don’t ask that guy— he wants to hang them all!'”The incident described in “Insurgency” was similar to the meeting detailed in the New Yorker profile.
Trump ended up making a list of names he pledged he’d limit himself to in the event he was in the position to make a selection to the Supreme Court and made good on that promise based on his selection. By the end of his presidency, Trump made three picks to the bench who were each confirmed by the U.S. Senate: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
But Trump limiting his options to the list of potential plans was not a fool proof plan for conservatives. To the surprise of many, Gorsuch ended up in 2020 writing the majority opinion in the case of Bostock v. Clayton County, a major LGBTQ rights decision by the U.S. Supreme Court, which determined anti-LGBTQ discrimination is a form of sex discrimination and illegal under federal civil rights law.
The Washington Blade has placed a request in with Trump’s office seeking comment on the meeting with Pence and Napolitano as described in “Insurgency.” Napolitano couldn’t be reached for comment.
Human Rights Campaign’s ex-president sues over termination, alleges racial discrimination
Alphonso David alleges he was terminated unfitly
Alphonso David, the former president of the Human Rights Campaign terminated by the board after he was ensnared in the Gov. Andrew Cuomo scandal, sued the nation’s leading LGBTQ group on Thursday, arguing he was fired as a result of racial discrimination “amid a deserved reputation for unequal treatment of its non-white employees” and was explicitly told he was paid less because he’s Black.
David, speaking with the Washington Blade on Thursday during a phone interview, said he came to the decision to file the lawsuit after practicing civil rights law for 20 years and “never thought that I would be a plaintiff.”
“But I’m in this chair, I was put in this position,” David said. “And as a civil rights lawyer, I couldn’t look the other way. It would be anathema to who I am and it would undermine my integrity and purpose for the work that I do. And so I have to go through and make a very, very difficult personal decision to file this lawsuit.”
The lawsuit, filed Thursday in the U.S. District Court for the Eastern District of New York, accuses the Human Rights Campaign of violating new state and federal laws for terminating David, who was the organization’s first person of color and Black person to helm the LGBTQ group in its 40-year history. The lawsuit also contends the Human Rights Campaign contravened equal pay law in New York by paying David less than his predecessor, Chad Griffin.
After a public dispute with the board in September amid an independent investigation of his role in the Cuomo affair, the Human Rights Campaign boards unceremoniously fired David and shortly afterward announced a still ongoing search for a new president. David was named nearly a dozen times in the damning report by New York Attorney General Letitia James, suggesting David assisted in efforts by Cuomo’s staff to discredit a woman alleging sexual misconduct in Cuomo’s office. David has consistently denied wrongdoing.
But the lawsuit is broader than the termination and describes an environment at the Human Rights Campaign, which has faced criticism over the years for being geared toward white gay men, as a workplace where “non-white staffers were marginalized, tokenized, and denied advancement to high-level positions.” After a speech David gave on issues of race and indifference in the context of HRC’s mission, the lawsuit claims a board member complained about him referring too much to being Black, but faced no penalty from the organization.
Specifically named in the report is Chris Speron, Senior Vice President of Development, who expressed concern about “alienating” white donors and specifically “white gay men” after David issued a statement on the importance of Black Lives Matter after the killing of George Floyd by Minneapolis police officers. The lawsuit claims Speron pushed David to “stop mentioning in his public statements and remove from his bio the fact that he was HRC’s first Black President in its history.” Speron also was critical of hiring a Black-owned consulting firm and “criticized a Black staff member for attending a meeting with the consulting firm without a white person present,” the lawsuit claims. Speron couldn’t immediately be reached for comment to respond to the allegations.
In terms of equal pay, the lawsuit says HRC’s co-chairs informed David he was underpaid compared to his predecessor because he’s Black. But the lawsuit also acknowledges in 2021, just before news broke about the Cuomo report, the Human Rights Campaign in recognition of David’s work renewed his contract for five additional years and gave him a 30 percent raise.
David, speaking with the Blade, said he was in “shock” upon experiencing these alleged incidents of racism, maintaining he had kept quiet at the time out of concern for the greater good of the aims of the Human Rights Campaign.
Asked whether as president he considered implementing racial sensitivity trainings for his subordinates, David said “yes,” but added many trainings aren’t effective and said the power in organizations like the Human Rights Campaign is often spread out.
“There are people within the organization that have a fair amount of board support because they bring in the money because they are responsible for overseeing the money,” David added.
Joni Madison, interim president of the Human Rights Campaign, said in a statement after the lawsuit was filed the organization is “disappointed that Alphonso David has chosen to take retaliatory action against the Human Rights Campaign for his termination which resulted from his own actions.”
“Mr. David’s complaint is riddled with untruths,” Madison said. “We are confident through the legal process that it will be apparent that Mr. David’s termination was based on clear violations of his contract and HRC’s mission, and as president of HRC, he was treated fairly and equally.”
Madison adds the individuals accused of racism in the lawsuit “are people of color and champions of racial equity and inclusion who provided support and guidance as Mr. David led the organization,” without naming any specific individual. The boards for the Human Rights Campaign and the Human Rights Campaign Foundation who made the decision to terminate David, were comprised of seven independent directors, five of whom were Black.
The racist environment, the lawsuit says, culminated for David in September 2021 amid an independent investigation of his role in the Cuomo affair conducted by the law firm Sidley Austin LLP at the behest of the organization. According to the lawsuit, the board co-chairs contacted David late at night before Labor Day weekend to tell him to resign by 8 a.m. the next morning or be terminated for cause. When David asked whether the Sidley Austin investigation had made any findings against him, or if a report would be issued explaining what he was accused of doing wrong, the board co-chairs refused to say, the lawsuit says.
As is publicly known, David declined to resign and took to Twitter to complain about the board, which subsequently issued a statement disputing his claims. He was then fired “for cause” under his contract.
The termination, the lawsuit says, signified differential treatment of David because he is Black, taking note the Human Rights Campaign under his predecessor had “endured repeated, serious, scandals — many of which involved HRC’s mistreatment of Black and other marginalized individuals,” but Chad Griffin was never terminated “for cause.”
Both the Human Rights Campaign Foundation board and the Human Rights Campaign board voted to terminate David. A source familiar with the vote said no one voted “no” in either case. The campaign board vote was unanimous and there were two abstentions in the foundation board vote, the source said.
The source familiar with the vote said David never told the Human Rights Campaign he was helping Cuomo during his time as HRC president nor did he disclose he was talking to the New York attorney general. The first board members heard about it was when it hit the press, the source said.
Meanwhile, the lawsuit says David “performed extremely well as HRC president, by any measure,” navigating the organization through the coronavirus epidemic and boosting fundraising by 60 percent. (The Blade has not yet verified this claim.) It should be noted the Human Rights Campaign cited coronavirus as the reason it laid off 22 employees, as reported at the time by the Blade.
David, asked by the Blade how he sees the alleged racist culture at Human Rights Campaign infused in his termination, said “Black and Brown people are treated differently and have been for years in this organization,” citing a “Pipeline Report” leaked to the press in 2015 documenting an environment in which employees of color were unable to thrive.
“And so, the fact that I’m being treated differently now, in the fact that a different standard is being applied to me is just simply consistent with what they’ve always done,” David said. “You know, we go back to the Pipeline Report: Imagine if I was leading the organization at the time, and there was a report that was issued, that said that anti-Semitic remarks were being made within the organization, and that women were being discriminated against within the organization or some other marginalized group and that one of the senior vice presidents used a derogatory remark. Do you think I would still be at the organization or would they have fired me?”
David concluded: “There’s a different standard and a double standard that they’ve applied for decades, and I’ve just now been one casualty — another in a long series of casualties based on their systemic bias and discrimination.”
Among the requests in the prayer for relief in the complaint is a declaration the Human Rights Campaign’s actions violated the law; restoration of David to his position as president; an award of the compensation he would have received were he still on the job as well as punitive damages. Asked by the Blade whether any settlement talks have taken place, David said that wasn’t the case and pointed out the lawsuit was recently filed.
Legal experts who spoke to the Blade have doubted the validity of a review by Sidley Austin on the basis it was among the legal firms agreeing in 2019 to help with the Human Rights Campaign entering into litigation to advance LGBTQ rights, an agreement David spearheaded upon taking the helm of the organization.
David, in response to a question from the Blade, said the independent investigation into his role in the Cuomo affair “is a sham and I believe it was a sham,” citing the lack of transparency of findings.
“One of the first instances that caused me concern,” David said, “is I suggested to the organization that we conduct an independent review, and they came back to me and said, ‘Here’s our press release history,’ and the press release never mentioned that I actually suggested that they do this review. And when I challenged them on that, they told me that they thought it would be better for the press to review a complaint or receive a statement that showed that they were bringing this investigation as opposed to I’m recommending and push back even more. And then they said ‘Well, we will put in the statement that you are cooperating.’ So from the very beginning, they were not honest about what they were actually doing.”
Representing David in the lawsuit is the Chicago-based employment law firm Stowell & Friedman, Ltd. and and Chicago-based attorney Matt Singer. The case has been assigned to U.S. District Judge Eric Vitaliano, a George W. Bush appointee, an informed source familiar with the case said.
The lawsuit was filed in New York as opposed to D.C. because David is a New York resident and much of the discriminatory behavior took place in New York, the source said. The pay disparity alleged in the lawsuit is expressed in percentages as oppose to hard numbers pursuant to rules for the judiciary in New York, the source added.
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