Civil rights nominee faces scrutiny over past legal work

When a Muslim woman sued Abercrombie & Fitch claiming she had not been hired because she wore a head scarf, the clothing retailer tapped Washington labor lawyer Eric Dreiband to defend it.

That case and others in which Dreiband defended large companies from discrimination claims are drawing attention now that President Donald Trump has nominated Dreiband to serve as America's top civil rights attorney. He will likely face questions at a Senate confirmation hearing Wednesday about those cases and how he views the government's role in areas such as voting, gay rights and policing — some of the most pressing issues the Justice Department's civil rights division has faced in recent years.

Civil rights advocates have lined up to oppose him. Among their concerns is that he was part of a team of attorneys that fought against the Obama Justice Department when it sued the University of North Carolina over a state law restricting transgender people's access to public bathrooms.

But Dreiband's supporters stress that he has experience on both sides of discrimination cases, giving him a well-rounded understanding of the law. As the top lawyer at the Equal Employment Opportunity Commission under President George W. Bush, Dreiband entered into class-action lawsuits on behalf of women and minorities, sometimes yielding major settlements.

Dreiband would oversee the Justice Department's civil rights division at a time of sweeping change. The unit traditionally is subject to the most radical shift in agendas with each change in presidential administration, but advocates say Attorney General Jeff Sessions' reversals of previous policy have been disturbingly quick. Under Sessions, the department supported a strict Texas voter ID that a federal judge last month found discriminates against minorities; backed off court-enforceable improvement plans for troubled police agencies; and told local school districts they no longer must allow transgender students to use the bathrooms of their choice.

Dreiband is "walking into an administration that has been incredibly hostile to civil rights," said David Lopez, the EEOC's general counsel during the Obama administration. "The only question is whether he will dedicate his enormous capacity as a lawyer and intelligence to either rubber-stamping those efforts or to, in some way, mitigate those efforts."

His approach would surely differ from that of his Obama-era predecessor Vanita Gupta, a former ACLU attorney who oversaw the division as it pushed the boundaries of civil rights law, intervening in lawsuits on behalf of transgender people, prisoners and the homeless. Gupta called Dreiband "woefully unqualified" to lead the division. But some conservatives say Dreiband would be a refreshing change from an Obama Justice Department they believe at times went too far. He would be part of a steady stream of Jones Day law partners flowing into the Trump administration that includes White House counsel Don McGahn.

"He is as open minded as possible for a principled person to be," said Richard Seymour, a fellow employment attorney who has known Dreiband for years. "He is the steadiest imaginable hand at the tiller that I can think of."

David B. Grinberg, a former longtime EEOC spokesman who worked with Dreiband, pointed to several lawsuits he entered on behalf of minorities, including one in 2004, also against Abercromie & Fitch. In that case, the company paid $50 million to resolve the EEOC's claims that it hired and promoted whites at the expense of minorities.

"Eric fought very hard for women and minorities," Grinberg said.

But while in private practice, he opposed efforts to keep employers from asking job applicants about their criminal history and testified against legislation aimed at ending pay discrimination. LGBT-rights group Lambda Legal, among the group's opposing Dreiband's confirmation, said he has a "troubling anti-civil rights track record."

If history is any indication, the Senate Judiciary panel will scrutinize him closely. It rejected an Obama nominee, Debo Adegbile, over his filing of a legal brief on behalf of Mumia Abu-Jamal, who was convicted of killing a Philadelphia police officer.