Necessary Reforms: Restoring the Employment Litigation Section???s Commitment to Racial Justice and Equality
Feature Story by The Employment Discrimination Project of the Lawyers??? Committee for Civil Rights Under Law - 11/5/2007
This essay is the second in a Long Road to Justice companion series focusing on concrete steps the Civil Rights Division should/can take to strengthen and revitalize each of its Sections. Each essay is written by a civil rights advocate who specializes in a section's enforcement priorities.
Fifty years after the formation of the Department of Justice's Civil Rights Division (and the Employment Litigation Section within it), the fight to eliminate discrimination from the workplace is far from over. Illustrating the stubborn persistence of employment discrimination, the Equal Employment Opportunity Commission (EEOC) received over 75,000 charges of discrimination in 2006 alone. Between 2000 and 2006, the EEOC referred over 3,200 charges involving state and local employers to the Department of Justice's (DOJ) Employment Litigation Section after having found probable cause that discrimination occurred. These disheartening statistics reflect the deeply entrenched nature of employment discrimination and should be seen as a call to action. If the DOJ is to fulfill its mission, it must reassess its priorities, shift its focus, and reexamine its strategies. The Employment Litigation Section must both renew its commitment to the types of cases the DOJ was created to handle and readjust its tactics to contend with the new face of discrimination.
The DOJ is uniquely positioned to combat employment discrimination.
The DOJ's Employment Litigation Section is charged with enforcing Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, color, sex, religion, and national origin. Pursuant to Sections 706 and 707 of the Act, the DOJ has authority to challenge both individual and systemic discrimination.
Section 706 allows the Attorney General to bring suit against a state or local government employer based on an individual charge of discrimination that has been referred to the DOJ by the EEOC. An individual who believes he or she was the victim of employment discrimination must first file a charge with the EEOC. The EEOC then investigates the allegations, evaluates the merits of the charge, and attempts to conciliate. The case is referred to the DOJ only if the charge has merit and conciliation efforts have failed. The DOJ receives over 500 of these referrals a year, but, according to its complaint record, has litigated only about 1 percent of these referrals in the past six-and-a-half years.
Section 707 is designed to achieve more far-reaching reforms. It authorizes the Attorney General to file suit against a state or local employer where there is evidence that a "pattern or practice" of employment discrimination exists. The Attorney General's enforcement powers are broader under Section 707 in that pattern or practice investigations and lawsuits may be initiated on the Attorney General's own accord, without reliance on the EEOC referral process.
The Department of Justice is uniquely positioned to carry out these enforcement responsibilities and serves a special role in combating employment discrimination that cannot be fulfilled by private attorneys or organizations. The DOJ has the power to bring about sweeping changes by virtue of the authority of the United States government. Employers are far more likely to take allegations of discrimination seriously and thoroughly evaluate their employment practices when those allegations come from the federal government rather than a private attorney.
Furthermore, the DOJ not only acts with the persuasive power of the government behind it, but also with the financial resources of the United States supporting it. Discrimination cases are costly, especially those with the capacity to bring about systemic reforms, such as pattern or practice lawsuits. To successfully litigate these more complicated cases, experts must be paid to evaluate hiring, promotion, or termination patterns and expose clandestine discrimination. Private litigants and their attorneys often do not have the necessary resources or time to devote to investigating and litigating employment discrimination cases. Similarly, public interest organizations with tight budgets often are simply unable to take on the financial risk associated with expending significant funds on complex discrimination cases that are not guaranteed to produce major financial returns.
In short, the DOJ's deterrent power, capacity to create broad reforms, and financial resources are unmatched. If the Employment Litigation Section does not live up to its mandate to enforce Title VII, outside attorneys and organizations will be unable to fill the void.
The DOJ must re-establish its commitment to combating the persistent scourge of discrimination against racial minorities.
With these realities in mind, the Employment Litigation Section should focus its efforts on the types of cases it is uniquely equipped to handle, such as pattern or practice suits. The number of pattern or practice cases initiated by the Employment Litigation Section has dropped significantly during the Bush Administration. During the first six-and-a-half years of the Bush Administration, the Employment Litigation Section has brought just thirteen pattern or practice cases, whereas thirteen such cases were brought during only the first two years of the Clinton presidency. Pattern or practice suits are essential to the effective enforcement of Title VII. They have the power to provoke sweeping changes that would otherwise take years to accomplish through piecemeal litigation of individual claims. The Employment Litigation Section must recognize and harness the reformative power of Section 707 suits by making pattern or practice cases a significant priority.
The Employment Litigation Section (and the DOJ generally) must also renew its commitment to combating the most widespread form of discrimination. Fifty years ago, the Civil Rights Division was created primarily to address discrimination against African Americans. Today, race discrimination continues to plague workplaces across the country, albeit often in more subtle ways. Indeed, of all the charges the EEOC receives each year, allegations of race-based discrimination continue to predominate.
The Employment Litigation Section must reaffirm its commitment to defending the equal employment rights of racial minorities through Section 707 cases. Of the thirteen pattern or practice complaints filed in the past six-and-a-half years, only four alleged discrimination against African Americans and Hispanics, and two alleged gender discrimination. By contrast, during that same period, the Employment Litigation Section brought two Section 707 cases alleging discrimination against whites and four cases asserting a pattern or practice of religious discrimination.
Related Links
- Click here to read full essay with footnotes. (pdf)
- More Long Road to Justice Essays: Disability Rights Section
- More on the Civil Rights Division
