Federal Efforts to Eradicate Employment Discrimination in State and Local Governments: An Assessment of the U.S. Department of Justice’s Employment Litigation Section
The U.S. Commission on Civil Rights’ study of the federal government’s enforcement of Title VII to eradicate employment discrimination was accomplished in two volumes. In Overcoming the Past, Focusing on the Future: An Assessment of the U.S. Equal Employment Opportunity Commission’s (EEOC) Enforcement Efforts published in 2000, the Commission evaluated EEOC’s enforcement of Title VII with respect to the private sector. This report, Federal Efforts to Eradicate Employment Discrimination in State and Local Governments: An Assessment of the U.S. Department of Justice’s Employment Litigation Section (ELS), evaluates the enforcement of Title VII as it relates to state and local government employees.
The purpose of this report is to evaluate ELS’ efforts to enforce antidiscrimination employment
laws with respect to state and local governments. In order to complete the
study, the Commission performed the following:
interviewed Department of Justice officials, ELS staff, and outside experts;
conducted data analysis of ELS’ Case Management System;
reviewed ELS’ budget submissions, case docket, significant activities reports and other documents; and
reviewed ELS’ priorities, case selection procedures, and workload.
The Commission also reviewed performance measures established under the Government Performance and Results Act (GPRA), and the Department of Justice’s Strategic Plan and 2000 Performance Plan and 2000 Performance Report. This report of the Commission represents a 20-year assessment (1980–2000) of ELS.
The Employment Litigation Section
ELS is one of the 10 program-related sections in the Civil Rights Division of the Department of Justice. Each of the sections is responsible for components of civil rights enforcement. Since its inception in 1969, ELS’ responsibilities have changed and expanded significantly. In addition to Title VII cases referred by the U.S. Equal Employment Opportunity Commission, ELS has authority to bring pattern or practice suits against state and local governments, and responsibility to defend legal challenges to the enforcement of federal affirmative action programs and equal employment opportunity regulations in federal agencies. In addition to these responsibilities, ELS conducts compliance monitoring with consent decrees and settlement agreements, issues right-to-sue letters to charging parties, and offers outreach and technical assistance to employers, EEOC, and unions on Title VII enforcement. It is mainly through litigation work that ELS has succeeded in maintaining equal employment opportunity for women and minorities by challenging unfair practices throughout state and local governments.
It is noteworthy that few studies have been conducted on ELS or on the employment practices of state and local governments. Thus, the Commission had to rely heavily on the knowledge and experience of ELS staff to understand the Section’s work and how it is carried out. The Commission also analyzed available data on the public sector work force, though such data also were limited.
In its review of ELS, the Commission found a competent and experienced staff of 60, who have a high level of knowledge about civil rights law and enforcement and ELS operations. The longevity of the ELS staff, while praiseworthy, at times appears to contribute to an over-reliance on oral rather than written traditions for guidance and planning.
The Commission also found that ELS has been allocated insufficient resources (budget and staff) to carry out its mission and responsibilities, which have grown over the years. Budget increases have been modest and staff levels have remained constant during the past decade even though ELS has been given more enforcement responsibility.
ELS’ Enforcement Program
ELS has an impressive litigation record. With respect to resolution of cases and matters, approximately 80 percent are settled prior to trial, and of those that go to trial, 85–90 percent result in entry of a judgment in favor of the plaintiff. ELS almost always obtains both monetary and non-monetary relief on behalf of victims.
ELS lacks key staff and mechanisms that are essential to effective civil rights enforcement. While the Section commences between 20 and 30 EEOC referral investigations and an average of five pattern or practice investigations per year, there are no investigators on staff. Investigations are instead performed by attorneys and civil rights analysts who operate in absence of an overall investigative plan. ELS also lacks an essential tool to carry out its authority: subpoena power. Without it, the Section must rely on voluntary cooperation from employers to obtain information necessary to its investigations.
Summary of Findings and Recommendations
Even without a formal enforcement master plan, adequate record keeping, reliable data, and sufficient funding, the Section has performed well. ELS has begun to examine strategies that will reinforce its litigation work. The Section has installed a more sophisticated tracking system, structured a formal outreach and technical assistance program to keep abreast of evolving employment issues, and performed targeted research to develop pattern or practice cases.
However, the Section needs to make more efficient use of outside contractors, other federal agencies, and consultants that can provide it with training and opportunities to exchange information on relevant employment matters. More collaboration with other agencies will help ELS to identify practices for selecting cases and setting priorities.
The Commission concludes that ELS is a high functioning office which, if allocated resources adequate to carry out all of its responsibilities effectively, could further strengthen its enforcement program and advance the needed progress toward civil rights in the nation.