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 5

Scope and Impact of ELS’ Enforcement Efforts

As shown in this report, ELS’ success cannot be gauged simply by the number of complaints filed, the day-to-day output of the Section, or the amount of money received on behalf of victims as a result of enforcement efforts. Among other important measures is the nationwide effect of the Section’s work on state and local governments, as well as on individual victims of discrimination. It is difficult to give due credit to ELS for the important work it does without adequate measures of impact. From a civil rights perspective, assessing impact is critical to determining where the greatest enforcement needs lie. As stated before, conferring with other similarly situated agencies about appropriate measures would probably yield best practices worth consideration. In order to better assess the broad impact of ELS, the Commission reviewed the cases pursued, the breadth and scope of ELS’ inventory, case outcomes, and the resulting remedial and preventive relief obtained.


As discussed, many of the priorities of the Employment Litigation Section have remained constant over the years, with the exception of special initiatives of the administrations in office, which compose approximately 10 to 20 percent of ELS’ workload. As such, it would be expected that the Section’s docket of cases filed also would have remained fairly constant across time. However, examining the litigation work of ELS over two decades brings to light several trends.[1]

Most notably, between 1980 and1989 the Section filed 64 race discrimination cases, and only 45 between 1990 and 2000.[2] Conversely, during the earlier period, ELS filed significantly fewer sex discrimination cases as compared with the later years (53 versus 76). The docket of complaints filed does not list any sexual harassment cases in the period from 1980 to 1989, but for the period between 1990 and 2000, 19 are listed. Between 1980 and 1989, the Section filed nine cases addressing national origin issues, whereas between 1990 and 2000 it doubled its efforts in this area and filed 18 cases. The largest shift can be seen with respect to religious discrimination cases. In the earlier period, ELS appears to have only filed one religious discrimination case, but in the latter period, this number increased to 19 cases.

The Commission found no evidence that these shifts in emphasis were the result of systematic planning and evaluation. The Commission further found no documentation that accounted for when and why ELS’ priorities shifted to new areas. Rather, ELS’ priorities seem to be driven more by instinct and the nature of EEOC referrals. Although quarterly meetings are held to discuss relevant developments in case law and review the Section’s docket, there is no annual priority-setting initiative during which old priorities are revisited and new ones are suggested. ELS’ informal processes, including frequent thoughtful discussion and conversation among its lawyers, clearly have resulted in the litigating of important cases. However, especially with severe resource constraints, it is not clear that the process ensures that ELS is always litigating the highest priority cases.

One constant priority identified by ELS is the pursuit of pattern or practice cases, and in earlier years this proved consistent with the cases on ELS’ docket. In a 1987 evaluation of ELS, the Commission found that the Section routinely filed many more pattern or practice cases than individual cases. For instance, between 1981 and 1984 ELS filed 35 pattern or practice cases and only 14 individual cases.[3] This appears to have shifted over the years, so much so that in recent years, the Section’s 707 program has dwindled to only two to four cases filed each year.[4] (It is important to note that some of this difference may be attributed to variations in how cases have been tracked over the years, e.g., whether multiple charges against the same employer are counted in the aggregate or individually.)

The overall number of cases ELS files is small to begin with, but most of those cases stem from EEOC referrals (largely individual claims) and very few are the result of ELS-initiated investigations. At least two experts in employment discrimination consider time ELS spends going through referrals as an unproductive drain on its resources. The executive director of the National Black Police Association and the former director of the Employment Discrimination Project at the Lawyers’ Committee for Civil Rights Under Law stated their belief that many more individual cases could, and should, be handled by the private bar.[5] ELS should develop an evaluation process to determine which of its cases could more efficiently be brought by a private attorney; even if the Section cannot make a definitive judgment.

Only by appropriately prioritizing its docket can ELS make optimal use of its resources. According to an EEOC attorney, giving pattern or practice cases priority is understandable, but other cases should be prioritized according to enforcement goals and resource availability.[6] Another employment attorney stated:

It’s always a question of what’s the best allocation of resources. If [ELS is] spending a lot of resources reviewing things that seldom produce good cases or the cases [ELS] produce[s] are just individual, then my suggestion would be to sift through what was there and see what makes sense in terms of an enforcement program, isolate those, issue notices of right-to-sue in all the rest. And what makes sense in an enforcement program should not differ if [ELS has] got a good situation presented to them apart from the EEOC or a good situation presented to them through the EEOC referral.[7]

The Commission believes ELS should strive toward more formally prioritizing its docket to better ensure it is meeting its diverse enforcement goals, including both individual and systemic cases, and the variety of issues and bases identified. An integral part of that priority setting should be obtaining feedback from state and local government employees and employers through surveys, focus groups, and meetings.

ELS has also given high priority to the elimination of discriminatory recruitment and hiring practices, including the use of testing devices that have an adverse impact on women and racial/ethnic minorities. In fact, every administration since the early 1980s has included pre-employment testing as a priority. The Commission’s review found that these cases raise important civil rights issues, and thus warrant more precise planning for and result tracking to determine impact. According to one employment discrimination attorney, ELS has the expertise and resources to handle these cases that most private firms do not have, and ELS has had success over the years in litigating testing cases.[8] The Commission’s review of ELS’ docket also reveals that hiring and recruitment cases beyond testing make up a large proportion of ELS’ caseload, particularly with respect to the failure of agencies to hire women in nontraditional occupations, such as corrections officers, law enforcement officers, and firefighters.

ELS staff have expressed the frustration that, because of limited resources, the decision to emphasize one aspect of the enforcement program necessarily detracts from others. For example, the emphasis on law enforcement agencies might hinder the ability of the Section to pursue cases in other industries. In the end, ELS management must be able to justify the disproportionate focus on law enforcement/public safety agencies. One special litigation counsel stated:

The law enforcement agencies have increased significantly in size over the past several years. You’re talking about a substantial number of employment decisions, both entry-level appointment and promotion, being made and to very desirable jobs in terms of pay and jobs which are high profile and should reflect the diversity of the communities they serve.

[G]iven the limited staff, given the limited money we’re going to go and we’re going to work in those areas from which we can mine, if you will, the most gold, those areas which we can be most effective. . . . [W]e have to remember that public safety jobs are fairly high paying jobs and they’re important not only for the position for the person in the job, but they’re important for the community. . . . [I]f the scales are such that public safety gets a little bit more of our time, effort, and money, it’s because we’re responding to what we see rather than coming at it with a preconceived notion.[9]

Employment experts external to DOJ agree that the concentration of enforcement efforts in the law enforcement industry is appropriate. One stated that promoting diversity in public safety jobs, including corrections jobs, is extremely important because the differences between the demographics in the offender population and the general population heighten misconceptions and conflict.[10]


To better illustrate whether the cases ELS files reflect identified priorities, the Commission performed a more detailed review of the characteristics of complaints filed between January 1998 and January 2001, including issue, basis, and defendant type. Table 10 summarizes the characteristics of these cases.

TABLE 10: Characteristics of ELS Cases Filed, January 1998 through January 2001


Basis of complaint

No. of cases* Issues involved Defendant type





Sex discrimination


Recruitment/hiring (6)
Job assignments (3) 
Pay (2)
Promotion (2)
Discharge (2)

Police and/or fire (5)
Education (3)
Corrections (2) 
Transportation and streets (1)
Public works and utilities (1)
Health services (1)
Judicial and legal (1)

Sexual harassment



Police and/or fire (2)
Corrections (1)
Health services (1)
Social services (1)
Public works and utilities (1)
Education (1)
Transportation and streets (2)

Race discrimination


Discharge (3)
Promotion (2)
Recruitment/hiring (2)
Testing (2)
Discipline (1)

Police and/or fire (4)
Education (1)
Judicial and legal (1)
Public works and utilities (1)



Racial harassment



Police and/or fire (1)
Public works and utilities (1)
Transportation and streets (1)
Judicial and legal (1)

Religious discrimination


Discharge (2)
Recruitment/hiring (1)
Assignment (1)
Harassment (1)

Police and/or fire (2)
Corrections (1)



National origin discrimination


Promotion (1)
Recruitment/hiring (1)
Testing (1)

Police and/or fire (1)
Public works and utilities (1)





Retaliation for filing complaint



Police and/or fire (5)
Education (1)
Public works and utilities (1)
Health services (1)
Corrections (1)


* Note that many cases contain allegations of discrimination with respect to multiple bases (particularly those that involve retaliation), and many cases involve multiple issues.

Sources: U.S. Department of Justice, Civil Rights Division, Employment Litigation Section, “Complaints Filed as of April 6, 2001”; U.S. Department of Justice, Civil Rights Division, Employment Litigation Section, “Significant Developments, 1993 to Present.”

A majority of the cases ELS filed during this three-year period involve issues of sex discrimination and sexual harassment, followed by allegations of discrimination on the basis of race. Several cases involve multiple issues and bases. This is particularly true where retaliation is cited as a basis of a complaint, because often the retaliatory action is a response to the initial complaint.

Police and fire departments are disproportionately targeted for litigation, followed by departments of education and public works and utilities. Table 11 gives a breakdown of the types of defendants against whom cases were filed in the past three years.

TABLE 11: Defendant Type in Cases Filed by ELS, January 1998 through January 2001

Defendant type

No. of cases

Police and fire




Public works and utilities




Transportation and streets


Judicial and legal


Health services


Social services




Source: U.S. Department of Justice, Civil Rights Division, Employment Litigation Section, “Complaints Filed as of April 6, 2001.”

According to ELS’ case docket, the Section has filed two cases challenging written employment tests in the past three years. One was filed against the city of Garland, Texas, police and fire departments and the other against the Delaware Division of State Police. In United States v. City of Garland,[11] which was filed in February 1998, ELS is challenging the city’s use of a cognitive written examination for rank order hiring as having an adverse impact on black and Hispanic applicants. In the second case, United States v. State of Delaware,[12] ELS has initiated a 707 case against the state’s Division of State Police for discriminating against black applicants for entry-level state trooper positions. The Section alleges that a written examination used between 1989 and 1998 to select state troopers disproportionately excluded African American applicants for consideration for employment. Both cases were in the discovery stage at the time this report was drafted.

Because of the influx of new immigrants into the work force who have diverse beliefs, cultures, and skills, national origin discrimination has become a major civil rights concern. The section chief indicated that ELS has begun placing an emphasis on national origin discrimination in recent years. Of the two such cases filed in the past three years, one, United States v. City of Sulphur (OK),[13] involved the failure of a city sanitation department to promote a Mexican American employee based on his national origin. In this case, a consent decree was obtained enjoining the city from engaging in future national origin discrimination, requiring training for supervisory personnel, and providing $45,000 in back pay for the plaintiff.[14] The other case addressing national origin issues is the testing case against the city of Garland, Texas, discussed above.

ELS’ docket reveals an emphasis on sexual harassment cases involving individual complainants. As table 10 above shows, nine of the 29 cases filed during the past three years include charges of sexual harassment. Section staff have explained ELS’ policy as pursuing cases that cannot be easily reached through pattern or practice authority; however these cases seem to dominate the Section’s docket.[15] The counsel to the assistant attorney general and acting assistant attorney general account for the volume by citing greater public awareness of sexual harassment protections and the development of case law allowing DOJ to address sexual harassment through statutory enforcement.[16] However, as has been stated elsewhere in this report, ELS must be more strategic and less reactive in deciding to pursue new program areas, whether it wishes to set new precedent, emphasize new developments in the law, or fulfill some other goal that is the result of precise planning.

ELS has used its influence as an intervenor in two Title VII cases during this three-year period. One was a testing case, Carrabus v. Schneider,[17] filed in response to a test developed as a result of a consent decree from a case originally filed by ELS in 1983 and settled through consent decree in 1986 (United States v. Suffolk County[18]). The plaintiffs in Carrabus claimed that the new test was not sufficiently job related and had the effect of discriminating against nonminority applicants. The Court decided that ELS’ test was appropriate and the case was dismissed in September 2000.[19] The other case was Owen v. L’Anse Area Schools,[20] in which the plaintiff was a Jewish public high school teacher who was allegedly subjected to egregious harassment on the basis of religion and/or national origin, and the school district failed to respond appropriately to the harassment.

ELS staff espouse religious discrimination as an issue of importance, given the integration of new immigrant groups with different religious beliefs into the work force. However, there is no mention of this issue as a priority in the strategic plan. According to the acting assistant attorney general for civil rights, ELS has wanted to litigate religious discrimination cases for a long time, but these cases have not surfaced frequently.[21] Now the Section is exploring new ways to identify them, and in 2000, ELS actively pursued two freedom of religion cases and intervened in a third. ELS filed suit in United States v. City of Newark,[22] in which police officers alleged their religious freedom was infringed upon by a policy denying them the right to wear beards. ELS also filed suit in United States v. Arkansas Department of Correction,[23] in which it was alleged that the state department of corrections violated the plaintiff’s rights by failing to accommodate her desire to observe a day of rest as required by her religion. The case settled within five days of filing, and although the monetary award was small, the settlement agreement allowed employees the opportunity to exchange work shifts in order to observe the Sabbath. While the resolution is relatively simple, it shows how ELS can obtain a result that has the potential for broad impact while at the same time requiring comparatively few resources. If it plans to continue to devote resources to cases such as this, ELS’ goals and expected outcomes should be expressed in a strategic litigation plan. Measurements should be established, such as number of religious discrimination cases filed, and the number of employees who would benefit from this pursuit should be tracked.

Although ELS has focused many resources on cases against law enforcement and corrections entities, there have been times when the Section has diversified its attention. For example, during 1999, ELS managed to file suits in several industries: education (United States v. North Little Rock School District[24]); health care (United States v. Columbus County, North Carolina[25]); law enforcement (United States v. City of Belen, New Mexico[26] and United States v. City of Dallas[27]); fire and emergency medical services (United States v. City of Alma and Bacon County, Georgia[28] and United States v. City of Winter Springs, Florida[29]); social services (United States v. Mecklenburg County[30]); corrections (United States v. Erie County, New York[31]); and public works (United States v. Newton[32]).

The Commission’s review reveals that, while ELS has made good intuitive attempts to address the areas identified as priorities, it has not, in its strategic planning, analyzed other areas of discrimination that might arise as the employment climate changes. The section chief identified areas that the Section has determined, through internal discussions, it would like to prioritize in the future, if given additional resources. In particular, the Section would like to focus on disparate treatment issues that have the potential for broad impact, and would like to initiate more testing cases, as well as expanded coverage of national origin discrimination. ELS has recently received a series of referrals from the EEOC concerning national origin issues such as accent discrimination.[33] While these seem worthy undertakings, these priorities must come from more precise judgments of the assistant attorney general with input from the section chief, deputies, and senior trial attorneys after reviewing Section performance and taking into account the fair employment law environment. In this area, like others, ELS must better demonstrate guidance and strategy for its decisions other than its own instincts.

According to the section chief, ELS has historically focused on barriers at the entry level, but now is observing problems with promotional issues.[34] She stated that she would like the Section to assist organizations in developing criteria and promotional procedures that treat women and minorities equitably. One employment discrimination expert stated that, although ELS has done beneficial work with respect to hiring in public safety entities, it has ignored promotion in these departments.[35] He stated that ELS must follow its hiring cases by reviewing promotion practices to ensure individuals are not left in entry-level positions. He added, “Promotions are very commonly arranged whether by test or through highly subjective procedures, either of which could really benefit from Justice Department expertise.”[36]

Finally, one type of governmental industry notably missing from ELS’ docket is that of state employment services. According to one employment expert, these agencies place between four million and six million people in jobs each year, having a massive impact on work force participation.[37] Yet, ELS has not pursued challenges against employment agencies that use aptitude tests that have an adverse impact or that differentially refer women and minorities to certain jobs. ELS staff acknowledge that the Section has not filed cases against state employment agencies for many years, but attribute this to three factors: (1) the Section has not received any complaints or discovered evidence that any such agencies are engaging in a pattern or practice of discrimination; (2) EEOC has not referred such cases to ELS; and (3) most state employment agencies receive federal funds from the Department of Labor, which in turn monitors their activities.[38]

The Commission finds that there may exist an unnecessary duplication of functions in this area between the ELS and the Department of Labor. ELS should examine whether or not its responsibilities in this area are necessary. For example, ELS could augment Labor’s efforts by monitoring the employment referrals made by state agencies and determining if employees are being steered into certain positions. ELS also could perform random reviews of job assignments, as compared with the race, national origin, and gender of job applicants, or work with the EEOC to identify instances of discriminatory placement practices and provide technical assistance to state employment agencies. Unless ELS can justify a unique role that is not currently served, responsibilities for this area of enforcement should be transferred to the Department of Labor.

In an ideal situation, with the allocation of additional resources, ELS would also be able to take on more 706 cases, including those that address glass ceiling issues, harassment, retaliation, and wage discrimination. However, according to the section chief, ELS is operating at capacity, and so taking on new EEOC referrals would be difficult.[39] The same is true for ELS’ 707 program, as the Section could be looking at other potential targets that might stem from a broad-based review of all public sector industries and issues.


By all indications, ELS has been successful in achieving desired resolutions to the cases it chooses to file. In fact, in recent years 80 to 90 percent of the Section’s authorized lawsuits were settled prior to going to trial with an agreement in favor of the plaintiff(s); of the remaining cases, 85 to 90 percent were won by entry of judgment in favor of the plaintiff. Table 12 summarizes the outcomes of ELS cases for the period between fiscal years 1995 and 2000.

TABLE 12: Outcomes of ELS Cases, Fiscal Years 1995–2000








Percentage of authorized suits settled without trial







Percentage of lawsuits resolved by entry of favorable judgment (not settled)







Number of victims receiving job relief







Number of victims receiving monetary relief







Monetary relief obtained for victims of discrimination (in millions, approximated)







Note: N/A indicates that this information was not available for these years. 

Source: U.S. Department of Justice, Civil Rights Division, FY 1998–2002 Congressional Budget Submissions.

While an extremely small percentage of pattern or practice matters and EEOC referrals combined actually make it to the trial stage (approximately 3.3 percent in the past five years), this high percentage of favorable outcomes demonstrates effective case selection and strong litigation ability. However, ELS has not always met its stated performance goals with respect to case outcomes. For example, the performance goal for authorized suits settled without trial was set at 85 percent for fiscal years 1997 and 1998, but ELS failed to meet that goal. In FY 1999, the performance goal was lowered to 80 percent, the actual level of performance for 1997 and 1998. A higher goal was set in FY 2000, at 90 percent, which ELS achieved (see figure 7).[40] More importantly, however, it is not clear that having 85 percent of suits settle without trial is a goal ELS should necessarily strive for. The number appears to be based on the prior years’ performance rather than thoughtful planning taking into consideration types of cases and ELS’ overall mission. Further, although it is true that going to trial requires additional resources, settlements do not always have the same potential for broad impact, and therefore a cost-benefit analysis should be performed prior to goal setting.

Similarly, the performance goal for the percentage of lawsuits resolved by entry of a favorable judgment was set at 95 percent. However, in FY 1996, only 75 percent of the lawsuits achieved that outcome. In fiscal years 1997 and 1998, only 85 percent did. In FY 1999, the performance goal was lowered to 85 percent so that the goal was met. The FY 2000 goal was raised to 90 percent and actual performance achieved this level (see figure 8).[41]

Another important measure of ELS’ success is the relief obtained as a result of the Section’s litigation efforts. Section policy is to obtain full relief for individuals harmed by discriminatory practices, and relief is tailored to the violation, including systemic relief in pattern or practice cases.[42] Tracking this performance measure from year to year, however, may not provide an appropriate estimation of ELS’ productivity because cases are often not resolved for years, particularly if they go through the entire trial process. In fact, it is not uncommon for ELS to have active cases on its docket that extend back many years, and as table 12 shows, the number of individuals receiving relief and the amount of relief received fluctuate from year to year. Further, because monetary relief is easier to measure than the impact of injunctive relief, the true impact of the Section’s work is impossible to determine based on ELS’ current GPRA measures.

FIGURE 7: ELS’ Expected and Actual Performance, Fiscal Years 1996–2001

Source: U.S. Department of Justice, Civil Rights Division, FY 1997–2002 Congressional Budget Submissions.

FIGURE 8: ELS’ Expected and Actual Performance, Fiscal Years 1994–2001

Source: U.S. Department of Justice, Civil Rights Division, FY 1997–2002 Congressional Budget Submissions. 

During the three-year period from January 1998 through January 2001, ELS was successful in obtaining a total of 28 new consent decrees, out-of-court settlements, and court orders (including some from cases filed prior to 1998).[43] Those resolutions combined garnered in excess of $7.1 million in back pay and other compensatory damages for more than 1,500 victims.[44] Interestingly, of the five cases since 1995 in which ELS obtained the largest monetary settlements (totaling $24.6 million in relief), three were in cases against state departments of corrections.

ELS has had some significant success gaining monetary relief through its pattern or practice cases. For example, in one recent settlement with the Parish of Orleans, the Section obtained $2 million in back pay for more than 300 victims and 170 priority offers of employment.[45] In addition, the Section is in the process of distributing $7.2 million to an estimated 1,500 black and female victims in litigation that challenged state-administered selection procedures for municipal police, sheriff, and corrections officers; and more than $3.7 million to correctional officers who were subjected to racial and sexual harassment by the New Jersey Department of Corrections.[46] ELS also obtained relief for more than 400 claimants who will now receive priority employment opportunities.[47]

In addition to relief in the form of back pay and other monetary compensation, ELS has the opportunity, in many of the cases it litigates, to effect change through the acquisition of other remedies in the form of equitable relief. These resolutions to charges of discrimination have a better potential for impact, if the remedies are broadly constructed and strictly enforced. Typical broad-based remedies include requirements for changes in employer policies, such as hiring, recruitment, and assignment practices, sensitivity training (e.g., with respect to racial or sexual harassment), and the establishment of internal complaint handling systems. It appears that ELS has been successful in its efforts to obtain non-monetary relief—all of the Section’s consent decrees contain provisions for injunctive relief.[48] According to the section chief, ELS tries to pursue only those cases that could involve equitable relief because they provide broader remedies, making the amount of work involved more cost effective.[49]

For example, in United States v. City of Belen, New Mexico,[50] a case of pattern or practice sexual harassment in the city’s police department, ELS was successful in obtaining equitable relief in addition to monetary compensation for the victims.[51] The settlement agreement calls for the appointment of an outside equal employment opportunity monitor who will participate in all sexual harassment, sex discrimination, and retaliation investigations brought in the department, and will make recommendations for immediate relief. In addition, the settlement requires the city to implement a comprehensive sexual harassment and sex discrimination training program for all police department employees.[52] Similar provisions were included in a consent decree resulting from another sexual harassment case, United States v. North Little Rock School District.[53] This decree also requires the school district to include an evaluation of compliance with the new policy in employees’ annual performance reviews.

The ability to effect changes in hiring practices, a stated priority of the Section as discussed earlier, is an objective of many consent decrees. For example, in United States v. City of Alma and Bacon County, Georgia,[54] ELS sought relief for women who were not hired by the City/County Fire and Emergency Medical Service based on gender. In addition to monetary relief, the decree required the defendants to engage in a substantive recruitment and advertising program, to adopt a standardized hiring process, and to seek approval from DOJ on any proposed hires during the duration of the decree (five years).[55]

ELS’ largest settlement in recent years was for a hiring case against the North Carolina Department of Corrections, which alleged a pattern or practice of failure to hire women in correctional officer positions.[56] In a consent decree, ELS obtained $5.5 million for women who had applied for correctional officer positions or promotions to higher positions but were not hired because of their gender. In addition, the decree called for remedial recruitment efforts to encourage qualified women to apply for positions and the priority hiring of up to 464 female correctional officers.

The outcome of cases involving unfair selection devices, such as pre-employment testing, can also have a significant impact on hiring practices, primarily because the reach of these cases can be broader than the parameters of the immediate case. As testing cases are resolved, often the consent decree or settlement agreement involves provisions for the creation of new selection devices. Upon implementation, these new devices can prevent the perpetuation of discriminatory effects of past employment practices, opening the door to employment opportunities previously denied to women and minority groups.

ELS’ special litigation counsel spends a great deal of time after litigation or settlement working with agencies and test developers to create new, more comprehensive testing devices.[57] ELS does not engage in actual test development, but rather monitors test development by employers through use of outside testing consultants. According to the section chief, attempting to achieve voluntary compliance through the use of experts is consistent with the intent of Title VII and is often the only way to avoid costly litigation.[58] In one instance, however, ELS did retain experts who were directly involved in the development of a test because the employer had failed in two previous attempts to develop a lawful test. Although this particular effort proved successful, one employment discrimination expert cautions that ELS should not become more involved in the process of test development because it would create a misuse of resources and possibly a conflict of interest.[59] Thus, the Commission finds that ELS’ role should remain one of monitoring test use and, where adverse impact can be demonstrated, seeking resolution.

Based on its examination of ELS’ records and numerous interviews with ELS staff and others, the Commission believes that ELS has achieved significant successful outcomes from its cases. However, the records do not provide enough evidence to demonstrate the magnitude of the Section’s impact. Specific performance measures must be established so that the Section can more accurately track the effects of its work. Instead of limiting its measures of success to money collected and victims receiving direct relief, ELS must establish other meaningful measures such as the total number of employees affected by a change in policy or the number of employers that were required to change their practices.


Public sector employees endured hardship and risks to pursue a dream of fair and equal employment. In no small measure, the enforcement of laws that protect such employees has been performed by a small, stable staff of 60 who operate under an insufficient budget. ELS should be commended for the work it has accomplished within resource limitations to reach successful resolution of employment complaints. It has demonstrated expertise in addressing employment discrimination, and its skill at selecting strong cases has rendered it a major force in the safeguarding of employment rights. The staff are highly regarded in the employment litigation and civil rights arenas for their expertise, especially with regard to pre-employment testing. While the Commission acknowledges that measuring the impact of efforts to combat employment discrimination is difficult, the Section is nonetheless hampered by its lack of written guidance and strategic management tools. Although the Section demonstrates good instincts for setting its civil rights strategy, those instincts must be bolstered with clear and defensible management processes that enable itself and the public to better assess its progress.

The Commission strongly encourages ELS to take a more refined, systematic approach to carrying out its enforcement authority. Such an approach should widen the range of the individuals and groups with which ELS works, change some of its existing relationships to build on mutual strengths, and lead to more regular self-evaluation and accountability to the public for its initiatives.

[1] U.S. Department of Justice, Civil Rights Division, Employment Litigation Section, “Complaints Filed as of April 6, 2001” (hereafter cited as ELS, “Complaints Filed,” April 6, 2001).

[2] The numbers used in this discussion are based on the Commission’s analysis of ELS’ docket of complaints filed. They do not include those matters settled prior to filing and, thus, represent only a small portion of ELS’ actual workload. The numbers are estimates derived from ELS’ labeling of cases, and it should be noted that there were inconsistencies in records for earlier years and some incomplete entries. Therefore, these numbers are used only to demonstrate litigation trends. Also included in the counts for the period between 1990 and 2000 are five cases filed in January 2001.

[3] USCCR, Federal Enforcement of Equal Employment, p. 54.

[4] See table 5, p. 36.

[5] Hampton interview, p. 2; Seymour interview, pp. 25–26.

[6] Trujillo interview, pp. 29–30.

[7] Seymour interview, p. 34.

[8] Ibid., p. 15.

[9] Gadzichowski interview, pp. 29–33.

[10] Seymour interview, p. 14.

[11] No. 3-98CV0397 (N.D. Tex. filed Feb. 6, 1998).

[12] No. 01-0020RRM (D. Del. filed Jan. 10, 2001).

[13] No. 01-034-S (N.D. Okla. filed Jan. 18, 2001).

[14] A consent decree was entered into on Feb. 23, 2001.

[15] See GAO, Selection of Cases and Reasons Matters Were Closed, p. 5.

[16] Yeomans and Jerome interview, p. 72.

[17] No. 00-CV-2885 (E.D.N.Y. filed June 20, 2000).

[18] No. 83-CV-2737 (E.D.N.Y. filed Sept. 12, 1986).

[19] Carrabus v. Schneider, 119 F. Supp. 2d 221 (E.D.N.Y. 2000).

[20] No. 2:00-CV-071 (W.D. Mich. filed Sept. 20, 2000).

[21] Yeomans and Jerome interview, p. 70. EEOC also identified religious discrimination as a priority in its 1996 National Enforcement Plan. See U.S. Equal Employment Opportunity Commission, National Enforcement Plan, February 1996.

[22] No. 00-2368 (D.N.J. filed May 16, 2000).

[23] No. 5:00CV00395GH (E.D. Ark. filed Oct. 26, 2000). A settlement agreement was entered into on Oct. 31, 2000.

[24] No. LR-C-99-113 (E.D. Ark. filed Feb. 18, 1999).

[25] No. 99-CV-43-F(1) (E.D.N.C. filed Mar. 16, 1999).

[26] No. 99-404 (D.N.M. filed Apr. 8, 1999).

[27] No. 3-99-CV-2376 (N.D. Tex. filed Oct. 19, 1999).

[28] No. CV599-68 (S.D. Ga. filed June 15, 1999).

[29] No. 99-968CV (M.D. Fla. filed Aug. 4, 1999).

[30] No. 9:99CV353 (W.D.N.C. filed Aug. 29, 1999).

[31] No. 99-CV-217 (W.D.N.Y. filed Mar. 25, 1999).

[32] No. 5:99CV189 (W.D.N.C. filed Dec. 8, 1999).

[33] Baldwin interview, pp. 32–33.

[34] Ibid., p. 113.

[35] Seymour interview, p. 41.

[36] Ibid., p. 43.

[37] Ibid., p. 21.

[38] William Fenton, deputy chief, Employment Litigation Section, Civil Rights Division, U.S. Department of Justice, e-mail memorandum to Katherine Baldwin, chief, June 22, 2001 (re: USCCR Request for Clarification).

[39] Baldwin interview, p. 114.

[40] See CRD, FY 19972001 Budget Submissions.

[41] See CRD, FY 19962001 Budget Submissions.

[42] Thawley interview, p. 34.

[43] This number is based on a review of ELS’ docket of consent decrees and out-of-court settlements. It does not match the numbers shown previously in table 7 for several reasons. Most notably, table 7 includes Section 709 resolution agreements, as well as decree modifications and extensions. The docket cited here only lists the initial entry of a decree and not subsequent related proceedings.

[44] U.S. Department of Justice, Civil Rights Division, Employment Litigation Section, “Decrees, Out of Court Settlements, etc. as of April 6, 2001.”

[45] CRD, FY 2001 Budget Submission, p. G-38.

[46] Ibid.

[47] Ibid.

[48] See U.S. Department of Justice, Civil Rights Division, Employment Litigation Section, “Significant Developments, January 1993 to Present,” updated Apr. 9, 2001 (hereafter cited as ELS, “Significant Developments,” updated Apr. 9, 2001). Select consent decrees and settlements can also be accessed at <http://www.usdoj.gov/crt/emp/papers.htm>. Out-of-court settlement agreements do not generally involve injunctive relief because they tend to result from individual cases that can be resolved through monetary relief. See Baldwin and Toler follow-up interview, May 9, 2001.

[49] Baldwin and Toler follow-up interview, May 9, 2001, p. 55.

[50] No. 99-404 (D.N.M. filed Apr. 8, 1999).

[51] The consent decree was entered into on June 21, 2000. See ELS, “Significant Developments,” updated Apr. 9, 2001, p. 67.

[52] Ibid., pp. 67–68.

[53] No. LR-C-99-113 (E.D. Ark. filed Feb. 18, 1999). A consent decree was entered into on Apr. 2, 2001.

[54] No. CV599-68 (S.D. Ga. filed June 15, 1999).

[55] A consent decree was entered into on Nov. 18, 1999.

[56] United States v. North Carolina Dep’t of Corrections, Nos. 98-1759/1805 (4th Cir. 1999). The original settlement was vacated by a district court judge in 1996 (914 F. Supp. 1257 (E.D.N.C. 1996)), but was reinstated on June 11, 1999, by the U.S. Court of Appeals.

[57] Baldwin interview, p. 137.

[58] Baldwin, Affected Agency Review Comments, p. 7.

[59] Seymour interview, pp. 18–19.