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

Chapter 2

ELS Enforcement Program: Mission, Resources, and Procedures

The primary mission of ELS is the enforcement of Title VII as it relates to state and local employers, and the defense of federal agencies in their attempts to enforce civil rights laws pertaining to employment and in affirmative action programs. The primary enforcement mechanisms used by ELS are litigation and related activities, which will be discussed in greater detail below.

ELS litigation is initiated in two ways. First, under Section 706 of Title VII of the Civil Rights Act of 1964, ELS can file suits based on individual charges of discrimination referred to the Department of Justice (DOJ or the Department) by the EEOC (hereafter these matters may be referred to as 706 ).[1] Charges are filed with the EEOC by individuals who believe they have been discriminated against by a state or local government employer. If efforts to obtain voluntary compliance are unsuccessful, the EEOC refers the charge to ELS.[2] Second, under Section 707 of Title VII of the Civil Rights Act of 1964, ELS has authority to bring suit where there is belief that a pattern or practice of discrimination exists (hereafter these matters may be referred to as 707 ).[3] Pattern or practice cases seek to alter an employment practice such as recruitment, hiring, assignment, or promotion that has the purpose or effect of denying employment or promotional opportunities to a class of individuals.[4]

ELS often, during the litigation process, develops and enters into consent decrees and settlement agreements. The Section also monitors compliance with existing decrees; seeks supplemental relief or orders to enforce consent decrees and settlements; defends third-party challenges to the efficacy and lawfulness of the decrees; and seeks dissolution of decrees when the desired resolution has been accomplished.[5] ELS also issues right-to-sue notices to individuals who have filed charges of employment discrimination with the EEOC under Title VII of the Civil Rights Act of 1964[6] and Title I of the Americans with Disabilities Act[7] against state or local employers.[8] A notice of right-to-sue informs complainants of the right to file private suit in court. Lastly, in fulfilling its mandated defensive responsibilities, ELS defends other federal agencies against challenges to their affirmative action programs.

STAFF AND BUDGET RESOURCES

ELS administration, organizational structure, and staff resources have not changed much in the past 10 years (see appendix A). In fact, ELS has employed an average of 60 staff members, with minor fluctuations, since the mid-1980s when the Section was reorganized.[9] The staff includes professional and clerical workers, interns, and stay-in-school students. The professional staff members include the section chief, four deputy chiefs, two special litigation counsels, 30 attorneys, seven paralegals, seven civil rights analysts, a statistician, and a program analyst. ELS does not have regional or field offices, and although staff travel to litigate and investigate matters, they are stationed in Washington, D.C.[10]

ELS organizational structure and division of labor appear to be appropriate for the work the Section undertakes. ELS appears to have a competent staff, many of them long-term employees who have become expert at ELS operations and administration, especially at the senior level. However, in its review, the Commission found an over-reliance on the section chief, who carries numerous administrative and program-related responsibilities, including outreach and technical assistance. In addition, the transfer of management skills is insular, from veteran ELS staff to new ones, and could be invigorated with the expanded use of external training resources and opportunities to exchange ideas with other similarly situated federal offices. The transfer of such guidance is often oral; relatively little is committed to writing, compared with other agencies that the Commission has reviewed. While the Commission did not notice any adverse effects of this approach, 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.

To carry out its civil rights enforcement responsibilities, the Civil Rights Division (Division) must receive sufficient resources (appropriations and staff) to support all 12 of its sections (10 program-related sections, the Office of Redress Administration, and the Administrative Management Section). In explaining how appropriations are allocated to the Division's sections, ELS section chief indicated that budget submissions are guided by priorities and initiatives of the Department, administration, and the courts, and not solely on the Section's own assessment of its needs.[11]

The ELS section chief prepares budget submissions by taking into consideration these priorities and initiatives and shapes ELS request accordingly. Many steps in the budget process occur after the initial request is submitted to the Division, most of which are largely out of the Section s control. Oversight of the entire budget process for the Division is handled by the Office of the Assistant Attorney General, and the ELS section chief acknowledges that it is unclear to her what occurs between that office and the Office of Management and Budget (OMB).[12] Minimal communication exists between the sections and the offices handling the budget except for any requests for clarification. One important factor that influences the Section's success in receiving more money is the ability to tap into Department and administration priorities, not necessarily the stated justification for an expenditure.[13]

Like staffing allocations, ELS budget appropriations have remained at virtually the same level over time, even after its workload increased. Thus, the Section has been working with insufficient funding for the past 20 years (see appendix B). Although the Section's actual appropriations more than doubled in the period between 1980 and 2000, this increase has not been sufficient to account for inflation and increased enforcement responsibilities. During the 1980s, ELS budget appropriations fluctuated only modestly, increasing on average between $200,000 and $300,000 from year to year.[14] Between 1980 and 1990, the Section received a nearly 75 percent increase in appropriations, but in real dollars (accounting for inflation) this was not a significant increase.

The past several years demonstrate a similar pattern. The Commission reported in a 2001 study on federal civil rights appropriations, that the Civil Rights Division has not received adequate resources to carry out its many civil rights enforcement responsibilities, and that congressional appropriations remained below the President's requests over a period of seven years (from FY 1994 to FY 2001).[15] Although ELS appropriations increased from $5.4 million in FY 1995 to $6.5 million in FY 2000, the Section's average annual increase was only $220,000. In light of minimal increases, it is not surprising that the actual workload of ELS has steadily outpaced additional funding, as this report will show. In essence, significant increases in workload occurred with only modest increases in budget, most of which covered increases in operational expenses, and none of which included funding for additional program initiatives.

ENFORCEMENT PROCEDURES

Although specific enforcement procedures are tailored to individual charges whether EEOC referrals or ELS-initiated investigations there are some basic internal processes for handling matters and cases. EEOC charges referred to ELS are reviewed by a deputy chief responsible for the referral program. He makes recommendations to the section chief about the charges that should be pursued, based on established criteria.[16] ELS can either decide, upon review of the referred case file, not to pursue litigation on the charge or to examine it further to determine if litigation is warranted. If ELS determines that a matter does not warrant litigation or even further investigation, it has the responsibility for issuing a notice of right-to-sue to the charging party,[17] notifying the charging party of the right to file private suit in court. If an EEOC referral appears to require a factually intensive inquiry or extensive fact development to determine whether a violation of the law occurred, ELS may decide not to pursue it due to resource limitations.[18] A referral of this sort would also receive a right-to-sue letter. ELS has a separate unit that is responsible for issuing these letters.[19]

If ELS determines that a referred matter has merit and that it can be handled by the Section, it will conduct a supplemental investigation of the charge to determine whether a litigation recommendation should be made.[20] The investigation consists of the collection of additional documentation and meetings with the charging party, employer, and witnesses to determine credibility and to fill in evidentiary gaps. The amount of time and resources needed to conduct a supplemental investigation varies on a case-by-case basis, depending on the scope of the issues involved and the quality of the initial investigation conducted by EEOC. According to the section chief, some referrals are received with comprehensive and detailed case files, while others are not as complete.[21]

Pattern or practice cases generally evolve in a slightly different manner and can be initiated from data analysis, congressional or citizen letters, civil rights organizations, media reports, U.S. attorneys offices, and other sources.[22] If, after a preliminary investigation, ELS concludes that discrimination potentially exists, the section chief will recommend to the assistant attorney general for civil rights that a full investigation be authorized.[23] These investigations tend to be massive and, therefore, require more time and resources to develop than matters received through referrals.[24]

For both EEOC referrals (706) and pattern or practice (707) matters, ELS attorneys are responsible for conducting investigations, a task that consumes much time, particularly when developing large pattern or practice investigations. An investigation begins with a contact letter notifying the employer of the nature of the investigation and can include requests for documents, review of personnel data sets, interviews, and multiple on-site visits.[25]

A major obstacle to the investigative process is ELS lack of subpoena power and its resulting reliance on voluntary compliance from employers under investigation.[26] Without this authority, ELS cannot force employers to provide documents, access to personnel, or other evidence necessary to complete an investigation. ELS staff adjusts their requests, therefore, to only the most narrow and essential information.[27] Even with their adjustments, according to the section chief, investigations get strung along by employers very often [28] and the collection of information alone can take months.[29] The Section relies on its status as part of the Department of Justice to induce employer compliance. But if employers are indifferent or uncooperative, ELS has no independent recourse and must seek access through the courts, which can become an unnecessarily long, protracted process.[30] Thus, without having subpoena power, ELS runs the risk of needlessly expending resources on efforts to compel employers to produce the information necessary for an investigation. According to one special litigation counsel,

there are reasons that employers will cooperate with us because they are state and local governments and they want to be seen typically to be complying with and cooperating with the federal government, but sometimes it plays well at home to not cooperate with the federal government, you know, sort of paint us as Big Brother and so on.[31]

While paralegal specialists are available in the Section to assist with some aspects of the investigative process, unlike other similar agencies, ELS has no investigators. The utility of adding this function to the Section has been discussed internally. At least one attorney believes that investigators would be useful for the preliminary stages of an investigation, such as screening witnesses and collecting information.[32] However, he also believes that it is necessary for attorneys to have an active role in their own investigations since ultimately they must be confident in the cases they bring to trial. Adding investigators to ELS staff is an option that should receive strong consideration from ELS and Division management.

After the investigation into either a 706 or 707 matter has been completed, the deputy chief serving as the reviewer and the section chief decide whether to pursue a legal challenge. If affirmative, a recommendation to file suit is submitted to the assistant attorney general for civil rights through a justification memorandum ( j-memo ), which outlines the merits of the charge and identifies possible remedies. Only after approval from the assistant attorney general can ELS file a case in court. The general process for the handling of matters and cases in the Section is outlined in figure 1 below.

At all stages of case development, Section attorneys attempt to obtain settlement agreements with defendants to avoid costly and time-consuming litigation. In fact, approximately 80 percent of authorized suits are settled without a trial, either through a consent decree or other settlement agreement.[33] When a case is settled, a consent decree is entered, or a judgment is rendered in favor of the plaintiff, ELS has the added responsibility of monitoring compliance with the outcome to ensure that the terms of the resolution are met by the defendant.

ELS attorneys generally monitor decrees obtained in their individually assigned cases, because ELS has no separate unit to perform this function. However, depending on the degree of monitoring required, paralegal staff often provide assistance in order to reserve attorneys for litigation. Monitoring activities can range from reviewing reports submitted by the defendant on a periodic basis, as established by the consent decree, to full-scale litigative activities to enforce compliance from uncooperative employers.[34] In the event that an employer does not comply with a consent decree or settlement agreement, ELS has enforcement responsibility. In those cases, an investigation would be conducted and, if necessary, a motion would be filed for court enforcement. However, employers generally do comply with ELS, and so this enforcement action is rarely taken.[35]