Federal Efforts to Eradicate Employment Discrimination in State and Local Governments: An Assessment of the U.S. Department of Justice’s Employment Litigation Section
Findings and Recommendations
A PAUCITY OF INFORMATION
The Commission’s research found a dearth of information on public sector employment discrimination as compared with research available on discrimination in the private sector, and yet more than 16 million people are employed by state and local government entities.
In addition to the paucity of research and information on discrimination in the public sector, the Commission found that there are no current reports or studies that present in-depth evaluations of ELS’ responsibilities, productivity, and performance. The Commission previously reviewed the Section in three of its reports, including a 1971 report, Federal Civil Rights Enforcement Effort; a 1977 report, The Federal Civil Rights Enforcement Effort—1977: To Eliminate Employment Discrimination: A Sequel; and a 1987 report, Federal Enforcement of Equal Employment Requirements. Except for a General Accounting Office (GAO) report released in 2000, which reviewed cases and matters at three sections in the Civil Rights Division, including ELS, no other current reports or studies have been done on ELS.
Congress should commission a comprehensive study designed to identify employment discrimination and discriminatory practices in the public sector. Provided the research includes accurate and detailed measurements of the effects of various discriminatory employment practices and employee diversity, such a study will also serve the long-range purpose of assessing the effectiveness of federal enforcement efforts. ELS must be able to use results analyses such as this to routinely track complaints across public sector industries and in geographical regions to determine where there are trends in complaints.
The Commission recommends that, at a minimum, the Section conduct an annual self-assessment of progress toward its mission and goals, making results available to the public. In addition, regular review by DOJ, other agencies, and private civil rights organizations would also help fill in the information gap that exists with respect to ELS.
ELS’ DATA CAPACITY
Data unreliability and lack of sophistication of the Case Management System significantly hindered the Commission in its review of ELS. The Division is in the process of implementing a new Interactive Case Management System designed to facilitate better record keeping and enable ELS to produce more meaningful workload analyses and reports.
One problem with the old Case Management System was that the data recorded for earlier years (in this case 1991–1994) were particularly unreliable. Division staff had apparently not completed old data entry or verified existing data. This made it impossible for the Commission to use ELS data. For this review, data had to be compiled from numerous internal sources.
The Commission strongly recommends that in the implementation process, the Division focus sufficient resources on training staff to use the new data system efficiently and to its fullest capacity. Data must be entered consistently to be meaningful, and therefore there should be sectionwide requirements for data entry. Each section should also have the internal capability to manipulate the data as necessary and complete its own data runs, rather than having to rely on a central administrative office for assistance. This will allow for better self-evaluation, promote accountability, and provide section supervisors with the tools needed to make relevant management decisions. During the current implementation phase of the new data system, ELS must expend the resources to enter historical data in a consistent and systematic manner.
STAFF AND BUDGET RESOURCES
ELS has a highly qualified and experienced staff, many of them long-term employees who have become expert at ELS operations and administration, and carrying out stated goals, especially those at the senior level. However, in ELS, there is also heavy reliance on institutional knowledge and in-house guidance, training, and direction, which are transmitted primarily from senior to newer staff. There also is heavy reliance on the section chief and other senior staff to perform various functions such as outreach and technical assistance. The effectiveness of ELS’ organizational structure would be compromised if or when any number of them would leave within a short period, particularly because very little formal guidance and few directives exist in written form.
The Civil Rights Division has not received adequate resources to carry out its many civil rights enforcement responsibilities, and congressional appropriations have remained below the President’s requests over the past seven years (FY 1994 to FY 2001). ELS has likewise been working under budget limitations. Although the Section’s actual appropriations increased between 1980 and 2000, the increase has not been commensurate with increased enforcement responsibilities, nor does it account for inflation. In FY 2000, ELS had its largest increase since 1995, but the demands on the Section’s resources over the past two decades continue to exceed available funding.
The ELS section chief prepares budget submissions by taking into consideration initiatives of the Department and the administration, as well as legal developments and case precedent. In developing ELS’ budget request, the section chief is guided by the stated priorities and is responsible for making links between larger goals at stake and the work of the Section. However, the factor that most influences the Section’s success in receiving more funding is support of someone in power in the front office, not necessarily the stated justification for the expenditure.
There are numerous steps in the Civil Rights Division and overall DOJ budget process, which is rather complex. ELS is not routinely asked to provide input when decisions about its funding and requests for more money are being made, nor is the section chief an integral part of the process. Oversight of the entire budget process for the Division is handled by the Office of the Assistant Attorney General for Civil Rights.
In order to address the possible void in leadership and direction that would be created if a number of experienced staff left at the same time, ELS must identify and make available more outside training for new staff. ELS should utilize the sources for training available throughout the Department of Justice. In addition, Section policies and practices must be memorialized in writing instead of transferred orally and through other informal means.
Congress should provide sufficient increases in resources to enable ELS to carry out its civil rights enforcement responsibilities efficiently. The Section should receive an adequate increase in funding to compensate for the added responsibilities it has received over the years, namely the dramatic increase in its defensive workload that occurred after the 1995 Adarand decision. In addition, an increase in funds should be provided for each of the Section’s program activities, but especially to expand its pattern or practice litigation, supplement outreach, and improve compliance monitoring.
One significant weakness of ELS is its small size, which is not sufficient to have a large impact on widespread public sector employment discrimination. The Commission recognizes that employment discrimination cases often require large amounts of resources because of the voluminous records that must be analyzed and the technical and legal questions involved in proving the existence of discrimination in hiring, testing, promotion, and other employment practices. The Commission therefore urges Congress to increase ELS’ position allotments annually over the next five years.
The Section should have more involvement in its own budget process. Other than through budget submissions, there need to be opportunities for management to engage in two-way communication with the Office of the Assistant Attorney General about priorities, needs, and new issues that should be considered for annual enhancements.
Investigations are an integral part of ELS’ work. However, there is no formal plan or guidelines on how to conduct investigations. Attorneys, with the assistance of paralegals and civil rights analysts, are currently carrying out this major civil rights enforcement responsibility.
A major obstacle to ELS’ enforcement process is lack of subpoena power. Without it, ELS cannot force employers to provide documents, access to personnel, or obtain other such evidence necessary to complete an investigation. Subpoena power is critical to obtaining information for investigations and for the litigation process.
ELS should more fully explore the option of creating an “investigator” job designation. The Commission recommends that ELS confer with enforcement units in other agencies, such as the Department of Labor, Department of Education, Housing and Urban Development, and the EEOC, to study how such a designation could assist the Section in carrying out its functions. Investigators could initiate preliminary investigations of pattern or practice matters or assist with supplemental investigations of EEOC referrals, an area in which the need is heightened due to the increased number of referrals. While staff expressed that this idea has not advanced because of some perceived disadvantages, it is nonetheless worth exploration.
Alternatively, if resources for investigator positions are not available in the immediate future, ELS might consider reorganizing staff, particularly paralegals and civil rights analysts at the GS 9–12 levels, to incorporate this function, even on a trial basis. This would require providing more comprehensive, formal training to existing staff on the fundamentals of investigation. To do so, ELS should again rely on assistance from other enforcement agencies, such as the EEOC, Department of Labor, and the Department of Housing and Urban Development, or even other sections within the Civil Rights Division, that have training programs for investigators.
Congress, through its legislative authority, should provide ELS with subpoena power. Without it, ELS is forced to rely on voluntary cooperation from employers under investigation. Subpoena power would make evidentiary requests more efficient and less time consuming.
MEASURING PERFORMANCE: AN ANALYSIS OF ELS’ MANAGEMENT TOOLS
ELS has historically assessed its performance in terms of workload and accomplishments, i.e., processing of matters and cases. Since the passage and subsequent implementation of Government Performance and Results Act in 1993, federal agencies have been challenged to improve accountability by developing performance measures that are true indicators of productivity. The Department of Justice has since developed two strategic plans. Both established the goal of protecting civil rights through legal representation, enforcement of federal laws, and defense of U.S. interests.
The Department of Justice’s FY 2000 performance report lists enforcing federal civil rights laws and three sub-goals, one of which is prosecuting pattern or practice civil rights violations. ELS is only one of four sections contributing to the successfully litigated pattern or practice cases that address this sub-goal. ELS’ contribution to the sub-goal is small, never more than three successfully litigated pattern or practice cases of the Department’s 44 to 48 per year during fiscal years 1998 to 2000. The annual performance report reveals the relative insignificance of ELS in the DOJ strategic plan and annual performance report.
ELS has struggled to develop meaningful measures and performance indicators in light of GPRA’s requirements. The Section has tried to show more detail in its measures of workload, has added other outcome measures, some of which relate to obtaining relief for victims, and has developed a few measures of the quality or efficiency of the Section’s work. However, despite re-tooling, ELS’ current measures fail to appropriately track productivity and, more importantly, impact. ELS’ performance measures do not capture the extent to which its efforts are meeting the goal of reducing or eliminating employment discrimination against state and local government employees. Further, the measures that are in place do not evenly track ELS’ activities, such as the scope of outreach or outcomes of defensive matters.
ELS officials admitted difficulties when developing GPRA measures and have concluded that it is unfeasible to quantify litigation activity because the courts and opposing parties exercise a degree of control and preferred outcomes are not always clear.
The Commission finds that ELS is lacking in necessary program planning devices, and it became evident that in ELS strategic planning is not a priority. There is no formal written plan providing a roadmap for enforcement priorities, litigation-related activities, or expected outcomes.
The Commission recognizes that prior to establishing performance measures, goals and strategies for achieving them must be clearly defined. Therefore, ELS should undertake an initiative to more clearly define its strategic mission and litigation priorities by creating a guideline similar to EEOC’s National Enforcement Plan, which outlines enforcement areas that take precedence. ELS should further clearly identify its mission-related goals. Then ELS should, after appropriately utilizing caseload planning techniques, establish precise and relevant measurements of its performance. The Commission suggests that ELS develop the ability to determine when its goals are accomplished, however difficult that assessment might be. So doing is paramount to successful planning as well as accountability for expenditure of public funds. For example, if religious discrimination is determined a priority area, ELS must not only measure the number of cases it undertakes, but also the number of employees who would benefit from this pursuit.
ELS should use the information from its new Interactive Case Management System and enforcement plan to demonstrate a link between resources and the amount of enforcement activities that can be accomplished with existing staff, and measures for those accomplishments.
ELS must determine whether the actions it completes (e.g., the number of pattern or practice cases) can be expected to bring about the desired results (e.g., increased employment opportunities for minorities and women) and to change them if they do not. GAO recommended that ELS emphasize the following goals: increasing pattern or practice cases, defending challenges to civil rights laws and programs, improving coordination with the EEOC, and expanding education, outreach, and technical assistance. The Commission concurs with these recommendations and further suggests that these goals be incorporated as criteria in ELS’ performance measures.
In its process of goal development, ELS must make better use of surveys, focus groups, and meetings with relevant groups and organizations to gain perspective on its planning and measurement process and also to predict feasible goals.
ELS is no different from other federal agencies that have been required to comply with GPRA without full training of those responsible for implementation. Therefore, ELS should contract with experts in performance measurement to better equip its managers to plan and establish priorities required by GPRA.
ELS’ ENFORCEMENT PROGRAM: SETTING PRIORITIES
ELS has been delegated responsibility for structuring its enforcement program, within the parameters established by the Department. ELS’ working priorities have fluctuated only modestly over the years, despite changes in administration. For example, historically, ELS has focused on pattern or practice cases, particularly in law enforcement and corrections and with respect to selection devices, such as pre-employment tests. These remain areas of highest priority.
There is no regular or formal mechanism for communicating priorities from the assistant attorney general for civil rights to ELS. Changes in enforcement strategy are shared through periodic meetings and verbal communication. The Commission applauds ELS for its quarterly meetings, which are attended by the Section’s senior staff, for the sole purpose of reviewing relevant case law and significant rulings. Importantly, new legal developments also are discussed at an annual retreat. What is missing from these activities, however, is an annual priority-setting initiative during which old priorities are revisited and new ones are suggested.
The identification of enforcement priorities of the Section must be the result of two-way communication between the assistant attorney general for civil rights, representing the views of the administration, and ELS. There should be input from the section chief, deputies, and senior trial attorneys after reviewing Section performance and taking into account the existing employment environment. The Commission believes that ELS staff are best equipped to make suggestions for new areas of enforcement because they deal with these issues on a daily basis. They should be given ample opportunity to make recommendations, but at the same time ELS must better demonstrate a strategy for its decisions other than its own instincts.
ELS has no definitive written guidelines for case selection or for narrowing down the voluminous pool of referrals it receives from the EEOC each year.
Many of the issues that arise through EEOC referrals do not present themselves through other avenues. Individual complaints, which most frequently come to ELS’ attention through EEOC referrals, often have the potential for broader impact and other victims of discrimination benefit indirectly from the resolution.
ELS only generates eight lawsuits each year, on the average, from EEOC referrals. The number of cases ELS files is small compared with the large number of referrals it receives (approximately 2.5 percent of all referrals resulting in a lawsuit).
Currently, conducting supplemental investigations of EEOC referrals takes an average of nine months to complete, although a Section goal is to have them completed within six months of receipt.
ELS should define and establish guidelines for the review and selection of cases from those referred by EEOC. ELS should establish a system of categorizing referrals based on criteria such as merit, impact, scope, and importance/uniqueness of the issue involved.
ELS should examine whether or not it can increase the number of cases it files while adhering to its policy of only bringing cases that have been carefully investigated and that meet established standards. The Commission recognizes ELS will need additional resources in order to accomplish this. To help justify the request for resources, ELS should track reasons that it did not pursue a matter such as insufficient evidence, insufficient resources, or insufficient impact on the relevant community. ELS should also give consideration to the results of such an analysis in the annual evaluation of its progress.
A substantial portion of ELS’ resources is devoted to processing EEOC referrals (though the amount for any individual charge may vary depending on the issues involved and the sufficiency of the investigation completed by EEOC). ELS should give careful consideration to the utilization of designated investigators who could relieve some of the workload of the attorneys whose job it is to conduct supplemental investigations. In the process, ELS should consider ways to redistribute tasks associated with investigations that more efficiently utilize paralegal specialists and civil rights analysts. In addition, ELS should develop standard operating procedures for conducting supplemental investigations of EEOC referrals with an objective of identifying more efficient ways of performing this work. Such procedures should outline responsibilities of everyone involved and define the role of investigators, as well as establish timeframes for completion of the various stages of an investigation. Investigators should be charged with developing an investigative plan for each complaint, under the supervision of the deputy reviewing the matter, and should be held accountable for adhering to the established plan, allowing room for unforeseen obstacles such as an uncooperative employer. ELS should also ensure that it is not duplicating the efforts of EEOC investigators by forming a task force with EEOC that would discuss and act upon mutual interest issues.
Based on the fact that ELS can only pursue a limited percentage of the complaints EEOC refers—and that percentage is decreasing as the number of referrals increases—the Commission is concerned that many potentially good cases may go unaddressed. Therefore, the Commission encourages ELS to forge strong relationships with national and local bar associations across the country and refer out charges that satisfy legal requirements under Title VII. As part of streamlining efforts at EEOC, regional offices developed attorney referral lists. ELS should consider how it might use such lists or develop similar ones to refer charges to attorneys within geographic proximity of a complaint. ELS should also examine the best practices of similar federal offices to learn other ways it can accomplish this.
ELS should make efforts to forge better working relationships with EEOC’s district offices. Each ELS attorney should be assigned to act as a liaison to a designated district office and to collaborate with that office’s regional attorney. The ELS attorneys would be responsible for conducting periodic on-site visits to provide technical assistance to EEOC staff, keeping EEOC apprised of the types of charges ELS is looking for and changes in priorities, and establishing quality standards for the investigations EEOC conducts for charges against state and local government employers. Ultimately, this relationship would improve the quality of the referrals ELS receives.
PATTERN OR PRACTICE MATTERS AND CASES
Pattern or practice cases have been a priority of ELS and the Civil Rights Division since the passage of the 1972 amendments to Title VII, which gave the attorney general the authority to initiate these cases. They remain an integral component of ELS’ work.
The number of 707 cases filed is incongruent with ELS’ espoused priority status of such cases. During 1995 through 2000, ELS commenced four to seven pattern or practice investigations per year. On the average, only three investigations actually resulted in lawsuits. Pattern or practice cases make up a small portion of ELS’ litigation docket but consume a large portion of its resources.
No formal strategic plan exists for the Section’s pattern or practice program. ELS has not set specific measures for itself to determine when and if goals relative to its pattern or practice program are being met.
ELS identifies possible pattern or practice (707) cases through numerous sources, including newspaper articles, citizen mail, meetings with community groups, and individual charges filed through EEOC. However, many of its pattern or practice investigations are initiated through statistical targeting. The Section’s statistician begins targeting efforts by comparing EEO-4 data with Census data to identify differences between an industry’s employee composition and the general work force.
Because ELS uses its pattern or practice authority to address issues of magnitude and that have the potential to affect many people, most of its work in this area involves unfair hiring and recruitment practices. Statistical targeting also lends itself to hiring issues because the data are more concrete, and the large pools of potential employees make hiring differences evident.
Another large percentage of the Section’s resources have been dedicated to employment testing cases in which the tests used for employee selection or promotion have negatively affected candidates who are women and people of color. Over the years, ELS staff have developed expertise on testing issues and the role of the Section has expanded beyond litigation in this area to test development monitoring and consultation. The Section has referred jurisdictions to models of tests that have proven effective and nondiscriminatory.
The Commission regards pattern or practice cases as critical to the enforcement of civil rights. These cases have great potential to bring abou.t change in the public sector employment environment and as such should remain a Section priority. Additionally, pattern or practice cases are consistent with ELS’ stated priorities. Thus, the Commission encourages ELS to seek out additional matters that address patterns or practices of discrimination. ELS must step up its 707 enforcement program to investigate and ultimately file more cases of this type in the future, particularly given the expertise of the Section’s legal staff.
For its pattern or practice program to achieve greater impact, ELS must engage in regular goal and priority setting within this program, in an effort to remain cognizant of changes in the employment climate and supplement the good instincts and experience that the staff already use.
Over the years, the use of statistical information has become a useful, integral tool for the identification of pattern or practice issues, particularly in law enforcement and corrections. ELS should continue to use statistical targeting as a strategy to identify patterns or practices of discrimination. ELS does not maximize the use of EEO-4 data or data from other sources. So doing would enable ELS to make more accurate projections as well as provide current information on the public sector work force. ELS should build on the success of its statistical targeting efforts to identify systemic discrimination in areas other than hiring and recruitment, such as promotions and pay disparities, and examine all industries, not just law enforcement and corrections. Otherwise, expansion of the pattern or practice program into other areas of enforcement will not be likely.
ELS should identify ways to better coordinate efforts with EEOC in the collection and compilation of EEO-4 and EEO-5 data. ELS’ efforts in this area are hampered by the delayed rate at which EEOC makes these data available. In fact, ELS did not receive 1999 data until the beginning of 2001.
The Commission commends ELS for its work in the area of adverse selection devices as an area of Title VII enforcement that has the potential to affect numerous individuals. ELS should continue to make recommendations to employers attempting to develop new tests, and its role in actual test development should remain focused on providing technical assistance rather than developing new devices. Test development is more appropriately handled by experts. If ELS were to expand its role to include participation in actual test development, as it did in at least one instance, the Section might place itself in a situation of potential conflict if challenges to those devices are raised.
OTHER ELS ACTIVITIES
As components of its enforcement program, ELS also monitors compliance with consent decrees and settlement agreements, issues right-to-sue notices, and conducts outreach and technical assistance. ELS has recently begun tracking some of these activities while others have been tracked for years. If there is an area that has been problematic for ELS, it has been establishing appropriate measures for its additional activities and developing consistent standards for determining outcomes of these initiatives.
A major component of ELS’ enforcement program is monitoring compliance with the decrees and agreements the Section has obtained. If it is determined that an employer is not in compliance with a consent decree or settlement agreement, ELS may resort to additional litigation to secure compliance. In the past, ELS has been criticized for failing to adequately monitor court orders and consent decrees. In recent years, however, it appears that ELS has improved its activity in this area. ELS has had some success in getting employers and others under decree to adhere to and follow provisions of settlement agreements. In many decrees, results of monitoring have transformed the nature of the employer’s work force.
Each attorney generally monitors consent decrees, because ELS has no separate unit to perform this function. Monitoring activities can range from reviewing reports submitted by the defendant on a periodic basis, as established by the consent decree, to full-scale litigation activities to enforce compliance from uncooperative employers. Some cases and matters may remain active in the compliance monitoring stage long after resolution.
ELS began including in its year-end counts decree modifications and extensions in addition to new decrees and settlements. This makes it impossible to compare past monitoring activity or adequately predict future activity. In addition, based on ELS’ current indicators, there is no way to determine how many of the consent decrees or settlements obtained require little monitoring, such as those stemming from Section 709 reporting violations, and how many entail more complex activity.
ELS has, in recent years, managed to efficiently handle the increase in requests for right-to-sue letters, and at the same time reduce the backlog that once existed. This improved efficiency is the direct result of streamlining the letter issuance process by creating letter templates and hiring additional staff to perform this function.
ELS recognizes the importance of activities such as outreach to protect civil rights and keep members of the public informed about the services available to them. But these activities have the potential to consume substantial resources. In the past, resources were not allocated for extensive outreach, and staff were not able to carry out many such activities. However, recently, outreach has become an integral component of ELS’ work and a fourth deputy has been assigned to coordinate ELS’ outreach with other agencies and the public.
ELS’ efforts to expand its presence in the communities it serves have been praised by recipients of outreach initiatives. One EEOC attorney also commended ELS for a technical assistance visit to his district office, and stated that it would benefit ELS to encourage, through training efforts, EEOC offices to produce good referrals, which over time would improve the efficiency and quality of ELS’ litigation.
ELS also responds to citizen and congressional inquiries. Until 1997, the Section was unable to respond to as many inquiries as it received, resulting in a backlog. In 1998, the Section began assigning a higher priority to this problem, and much of the backlog was reduced, but ELS still does not answer all inquiries received.
ELS recently began tracking the number of employment selection procedures it reviews each year on behalf of requesting state or local agencies. In fiscal year 2000, ELS reviewed eight such plans and also engaged in several discussions with police and fire entities regarding job recruitment criteria and selection procedures.
To account for the amount of resources spent on the supplemental activities ELS engages in, the Section must develop measures that appropriately reflect the importance of this work. ELS must make every effort to determine appropriate measures for consent decree monitoring in order to be able to compare past monitoring activity, adequately predict future activity, or ascertain how much monitoring consent decrees may require. ELS should prepare estimates of the amount of work required for monitoring as it obtains new agreements and should report the level of activity involved in each monitoring case to determine what proportion requires more complex versus routine monitoring. In addition, rather than simply measuring its right-to-sue program based on input (letters requested) and output (letters issued), ELS should study ways that it could track how many of these notices result in the filing of a private suit. ELS should explore sending a simple survey to recipients of right-to-sue notices to find out whether they have filed a private suit. Finally, ELS should develop goals and measures for its outreach program that enable the Section to ascertain the impact of its efforts. These should include input from the communities ELS serves.
ELS may need to do an internal evaluation of its monitoring efforts to determine the best allocation of resources, such as whether paralegal specialists and civil rights analysts could be used more aggressively in compliance monitoring activities. ELS should also consider establishing a pilot program to contract out some of its monitoring tasks to private firms.
ELS should apply to its citizen mail the same attention that resulted in reducing the backlog of right-to-sue notices. Based on the success it has attained with respect to goals it set for right-to-sue notices, ELS should establish goals for answering citizen mail.
ELS should form a technical assistance task force including members of its staff, employment experts, and private employment attorneys, as well as representatives from other employment discrimination agencies such as EEOC. The purpose of the task force would be to develop strategies to reach public sector employees and employers about discrimination, help ELS communicate what is being done to address the discrimination, and provide public information on the roles and responsibilities of entities that work to eradicate employment discrimination. ELS should explore whether such a task force could contribute by helping to develop performance measures and goals for outreach and technical assistance. Such goals should include activities that reach out to both victims and employers.
One important recommendation that has already been discussed, but which merits re-emphasis here, involves the provision of technical assistance to EEOC staff. Not only would this benefit EEOC staff, as they would be more aware of the types of cases to pursue, but it would also benefit ELS by improving the quality of the referrals it receives.
The Commission finds that activities such as reviewing employment selection procedures on behalf of requesting state or local agencies are worthwhile expenditures of resources because they have the potential to result in the implementation of nondiscriminatory employment strategies prior to the threat of litigation. ELS should continue these proactive activities, but should also develop appropriate measures for the outcomes of the assistance it provides to state and local employers.
SCOPE AND IMPACT OF ELS’ ENFORCEMENT EFFORTS
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 are its litigation record, the expertise that its attorneys have, the results achieved for individual victims of discrimination, and the unfair employment practices changed. ELS wins 85 percent of its cases that go to trial, which is a strong indicator of effective litigation skills and effective enforcement.
The Commission found that generally ELS’ docket does reflect its stated priorities (for example, with respect to hiring and testing issues and in law enforcement and corrections), and it appears that the Section has made attempts to diversify the types of cases it pursues. However, there are also enforcement areas that are not stated priorities, but which ELS seems to pursue more frequently than others. For example, of the 29 cases filed between January 1998 and January 2001, 23 included allegations of sex discrimination and/or sexual harassment. Further, contrary to the prioritization of pattern or practice cases, most of the cases on ELS’ docket stem from individual EEOC referrals.
The Commission’s review reveals that ELS has not, in its strategic planning, analyzed other areas of discrimination that might arise as the employment climate changes. For example, with the rapid introduction of new immigrant groups who have diverse lifestyles, beliefs, cultures, and skills coming into the work force, national origin discrimination is emerging as a major employment concern.
ELS does a good job of addressing civil rights needs, especially in light of resource limitations. However, one governmental industry notably missing from ELS’ docket is that of state employment services. These agencies place between four million and six million people in jobs each year, having a massive impact on work force participation, but 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 stated that this responsibility is shared with the Department of Labor, which monitors the activities of these agencies.
During its 1987 report, the Commission found a need for better coordination between ELS and the Department of Labor. There was no evidence of improved coordination efforts during this review.
The Commission believes that a key to civil rights advancement is the assessment of the impact of enforcement efforts and the constant re-evaluation of all areas of discrimination. The identification of civil rights problems should be integrated as a critical component of ELS’ enforcement program. To that end, ELS should improve coordination with agencies such as the EEOC, which has the benefit of having field offices that are in touch with communities at the grassroots level. The Commission further implores ELS to develop solid mechanisms for recording and reporting the scope and impact of its work on employers as well as on individual victims of discrimination. Absent such efforts, it will be impossible to advance the civil rights agenda.
Because available resources restrict the number of cases ELS can pursue, the Commission recognizes that emphasis on one component of ELS’ enforcement program necessarily takes away from another. Thus, rather than focusing solely on internal means to accomplish its goals, ELS must also explore further ways it can combine its authority to bring suit with EEOC’s conciliation power to fulfill mutual goals. Through planning, ELS should determine the specific circumstances under which each enforcement method is most appropriate and create ways by which the two agencies can more effectively work together and maximize their efforts. ELS should further coordinate more of its civil rights enforcement responsibilities with other agencies with similar mandates, goals, and objectives, such as the Office of Federal Contract Compliance Programs (OFCCP) in the Department of Labor, and other similarly situated agencies and organizations. Joint publications and handbooks could be produced and disseminated to employers and employees; fair employment conferences and workshops could be conducted with all agencies participating; similarly, a video could be produced and disseminated with the cooperation of each agency.
In addition to meetings at which relevant case law is reviewed, significant effort must be given to annual priority-setting initiatives, including evaluating old priorities and establishing new ones. The Commission urges ELS to undertake specific planning exercises, with the help of consultants, to identify issues relevant to today’s employment climate. In addition to its good instincts, ELS must further hone and develop its use of planning and written documentation to justify decisions to pursue new program areas. So doing will enable ELS to establish its reasons for undertaking new pursuits, whether to set new precedent, emphasize new developments in the law, or fulfill some other goal.
Demographic shifts over the past decade, as evidenced by the 2000 Census, and the large increase in the immigrant population indicate that ELS made a good decision when it intensified its focus on national origin issues. In further planning how it will pursue this initiative, ELS should review issues such as accent discrimination, English-only rules, height and weight requirements, citizenship requirements, and harassment.
The Commission recommends ELS strive toward prioritizing its docket to better ensure it is meeting its diverse enforcement goals, including 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.