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The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition

The Leadership Conference on Civil and Human Rights  & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition
Long Road to Justice: The Civil Rights Division at 50

Combat Employment Discrimination

The importance of the Department of Justice to the effective enforcement of Title VII of the Civil Rights Act of 1964 cannot be overstated. It is the organization with the prestige, expertise, and financial and personnel resources to challenge discriminatory employment practices of state and local government employers. As a general rule, private attorneys and public interest organizations lack the financial and personnel resources to act as private "Attorneys General" in the Title VII enforcement scheme.

Combating discrimination against African Americans has remained a central priority of the Division through both Republican and Democratic administrations. Unfortunately in recent years, enforcement of Title VII's protections for racial and ethnic minorities has dramatically decreased. In fact, over the past several years, the Employment Section has chosen to devote precious resources to a number of controversial "reverse discrimination" cases on behalf of Whites. As long as race discrimination against minorities remains a sad, harsh reality in this country, battling the persistent scourge of workplace discrimination against minorities must remain a central priority of the Employment Section.

Similarly, throughout most of its history, the Employment Section has recognized and fought for appropriate use of race- and gender-conscious relief. In many cases, the Justice Department entered into consent decrees with race-conscious relief provisions aimed at eliminating the last vestiges of this country's shameful legacy of race discrimination. The Employment Section must support the continued use of constitutional affirmative action programs to remedy past discrimination and promote equal employment opportunity. The Supreme Court has given its stamp of approval to many forms of race-conscious measures, including remedial affirmative action programs. Yet, in recent years, the Employment Section has sought to abandon existing consent decrees that included race-conscious relief and has targeted other employers who attempt to achieve a diverse workforce. Such a change in position threatens to set back the progress that has been made since the passage of the 1964 Civil Rights Act.

As the face of discrimination has changed over the years, so too must the methods by which we attack discrimination. Though egregious forms of individual employment discrimination persist, we find much of today's discrimination buried in a gauntlet of more covert screening and hiring processes. These include but are not limited to psychological profiling, written cognitive ability tests, personality inventory assessments, polygraph examinations, background screens, criminal background histories, credit score evaluations, and physical ability tests. Even well-intentioned employers and supervisors must grapple with the very real issue of hidden bias. The Employment Section must be dedicated to rooting out discrimination even where unlawful bias takes a more subtle form. Title VII prohibits not only the type of discrimination that is evident through "smoking gun" proof of malicious intent; it also outlaws less overt types of discrimination that play out through facially neutral policies or practices that disfavor a particular group.

The Section must continue to use all of the enforcement tools in its arsenal to address these more subtle forms of discrimination. The most powerful of these tools is the authority to bring pattern or practice cases with the support of statistical evidence. As employers engage in questionable practices like conducting credit checks on applicants and abusing information contained in background checks, the Employment Section should be at the forefront of the effort to ensure that employers utilize valid selection procedures. At a time when discrimination based on sexual orientation in various states is on the rise, it is important for Congress to give the Civil Rights Division the authority necessary to enforce the Employment Non-Discrimination Act (ENDA).

The Employment Section is uniquely positioned to tackle widespread discrimination that affects large numbers of public employees. The Section must use its statutory authority effectively to combat the persistent problems of discrimination in the workplace. If the Section returns to vigorous enforcement of the law, it can regain its reputation as a true defender of civil rights.

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