U.S. Commission on Civil Rights

Federal Efforts to Eradicate Employment Discrimination in State and Local Governments: An Assessment of the U.S. Department of Justice's Employment Litigation Section

Appendix A

ELS Organizational Structure

ELS has an organizational structure that is driven by staff responsibilities, assignments, functions, and workload. As the organizational chart for the Section illustrates (see page 79), the primary line of authority is the section chief. Only two of the six other managers have specific day-to-day supervisory responsibilities of certain staff, while other staff do not report to a designated or immediate supervisor.

The section chief reports directly to a deputy assistant attorney general for civil rights. The section chief's primary responsibility is to manage the office, ensuring that the established goals and objectives of the Section are met.[1] All managers, supervisors and, at times, trial attorneys report directly to her. Among other assignments, the section chief is involved in personnel management, attorney training, and the Section's outreach and technical assistance efforts.[2]

Immediately under her supervision are four deputy chiefs, two of whom have personnel and supervisory responsibilities, and one of whom has worked in ELS for more than 30 years. One of the deputies oversees the EEOC referral program, which includes supervising the Right-to-Sue Unit. The unit processes requests for right-to-sue notices from charging parties and their representatives and right-to-sue letters for complaints ELS does not pursue. The deputy also reviews all EEOC referrals and recommends to the chief those that should be pursued.[3] A second deputy chief oversees the Section's defensive litigation and has held that responsibility since 1995, when the Supreme Court issued the Adarand v. Pena decision.[4] He is considered the administrative deputy, overseeing personnel matters, supervising the office managers, the paralegal staff, and the interns, and preparing the Section's budget.[5]

The remaining two deputies do not directly supervise staff. One has, as part of her responsibilities, a general docket of pattern or practice cases and matters to review. She also serves as the primary liaison with outside offices, committees, and organizations.[6] The other, who came to ELS in March 2001 when the position for a fourth deputy chief was created, is mainly responsible for identifying and bringing pattern or practice disparate treatment cases on behalf of ELS.[7] Another mission of the new deputy will be to build relationships with civil rights groups, EEOC regional attorneys, and other organizations that can assist with the identification of disparate treatment issues warranting investigation.[8]

In addition to the deputy chiefs, ELS also has two special litigation counsels who report directly to the section chief and function both as trial attorneys and, in some capacity, deputies. Two major factors distinguish the special litigation counsels from the other deputies: (1) they litigate, and (2) they do not get involved in personnel matters.[9] While the special litigation counsels responsibilities include litigation, they also maintain specialized dockets of cases and review cases of other attorneys. Like the deputies, they can sign off on pleadings, discovery requests, motions, and responses to motions.[10] In this position, they are allowed some flexibility to develop cases within their areas of expertise that are also of importance to the Section, such as pattern or practice cases, testing, and disparate disciplinary systems.[11]

The majority of the employees in ELS are attorneys, including the seven managers. The Section's trial attorneys are typically assigned a variety of matters, including both investigations and litigation, as well as matters that are in a post-settlement or post-judgment monitoring stage. All of the attorneys are responsible for handling all aspects of cases from investigation to litigation to settlement negotiations and discovery, but the larger and more complex pattern or practice cases are generally reserved for the more experienced senior attorneys. Attorney assignments come with a reviewer who is generally a deputy, but sometimes a special litigation counsel. Depending on an attorney s caseload, he or she may work with multiple reviewers at a time.[12]

As new matters come into the Section, information is transmitted to staff by e-mail describing the nature, parameters, and status, giving attorneys the opportunity to request them as their assignments. Final assignment decisions, however, rest with the section chief and deputy chiefs based on a review of the requesting attorneys workload, experience, and other factors.[13] The section chief described this assignment method as beneficial for a number of reasons, particularly because it allows attorneys to develop skills and expertise in a certain area of law, and it ensures that the distribution of work is equitable.[14]

In addition to the attorneys, the Section has other full-time professionals, including civil rights analysts, paralegals, a program analyst, and a statistician. All of these staff report to a deputy chief, and some report to other professional staff such as a supervisory civil rights analyst and a program analyst. The data responsibilities are primarily handled by the statistician and the program analyst.

The paralegals provide litigative support to the attorneys and are involved in almost every aspect of the work in ELS, from investigations to compliance. Paralegal staff may assist with interviews and help develop case files, and can be responsible for indexing and maintaining databases for discovery materials.[15] The civil rights analysts were promoted from paralegal positions. The analysts have more responsibility and work more independently.[16]

ELS organizational structure and division of labor appear to be appropriate for the work the Section undertakes. However, there may be over-reliance on the section chief, who carries numerous administrative and program-related responsibilities. ELS tends to rely heavily on institutional knowledge of senior staff for guidance, training, and direction of new employees, rather than external and Department of Justice information sources. The transfer of such guidance is often oral; relatively little is committed to writing, compared with other agencies that the Commission has reviewed. The effectiveness of this communication structure seems vulnerable to senior staff departures that, if they occurred, would leave a void in new staff training and orientation that could not easily be filled.