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 1

Overview: The Role and Responsibilities of the Employment Litigation Section in Eliminating Employment Discrimination

The question is not, if I stop to help a man in need, what will happen to me. The question is, if I do not stop to help the sanitation workers, what will happen to them. That is the question.

Dr. Martin Luther King, Jr., April 3, 1968, in support of the sanitation workers strike.

OVERVIEW

Since the beginning of the civil rights movement, state and local employees have provided services for millions of Americans. They have taught, fed, and provided recreation for children in elementary and secondary schools, changed bedpans in hospitals, worked to rehabilitate the sick, cleaned the streets, picked up the garbage, and provided mobility for millions of people using public transportation. These same individuals in some cases stood, and in others were thrust, into the frontline of the battle for employment equality. The civil rights era is rife with stories of teachers, sanitation workers, bus drivers, janitors, transit workers, firefighters, rescue workers, and police officers who walked to work, endured beatings, were bitten by dogs and locked up in jails in the fight for equality and justice. These workers risked their safety and that of their families, accepted deprivation, and risked losing their jobs in the fight to end discrimination.

Before antidiscrimination employment laws covered the public sector, state and local government employers were not held accountable for discriminatory policies and practices against women and minorities. As a result, minorities and women were denied equal employment, most notably as law enforcement officers and firefighters. While the passage of the Civil Rights Act of 1964, specifically Title VII,[1] brought laws that protected other workers, it was not until eight years later that the Equal Employment Opportunity Act of 1972 broadened the coverage of Title VII to include employers and unions with 15 or more employees, employees of state and municipal governments, and employees of private and public educational institutions.[2]

This report is an examination of the responsibilities, work, and performance of the Department of Justice's Employment Litigation Section (ELS or the Section). It will show that ELS is the only federal entity that has the statutory duty and responsibility to ensure that public workers, on whose shoulders much of the civil rights struggle was carried, rightly have a workplace free from harassment and discrimination. It will show that a small cadre of trial lawyers and others have helped to eliminate many of the barriers to employment opportunities in law enforcement and firefighting nationwide. This study will show that armed primarily with an experienced staff and good instincts, ELS is challenging unfair hiring, testing, and assignment practices, gender segregation, discrimination in pay against women in nontraditional jobs, and discrimination in pay and benefits against minorities. Importantly, the report will also show that the tool missing from ELS arsenal in the fight for civil rights is its funding, which has not kept pace with the expansions in its workload. Despite funding limitations, however, ELS is addressing emerging employment issues in corrections, transportation, and law enforcement. This study will also question ELS heavy reliance on experience and instincts rather than precise planning in undertaking its initiatives.

INTRODUCTION

The U.S. Department of Justice's Civil Rights Division (Division), established in 1957, is one of the primary institutions within the federal government responsible for enforcing federal statutes prohibiting discrimination on the basis of race, sex, religion, national origin, and disability. The numerous statutes it enforces include the Civil Rights Acts of 1957, 1960, 1964, and 1968; the Voting Rights Act of 1965; the Equal Credit Opportunity Act; the Americans with Disabilities Act; and civil rights provisions contained in other laws and regulations. The laws prohibit discrimination in a variety of areas, including employment, housing, education, public accommodations, and voting.[3] The Division has 10 program-related sections that carry out the various civil rights enforcement responsibilities.[4] The Employment Litigation Section is the section of the Division that enforces nondiscrimination in state and local government employment. The Section also defends challenges to race-based affirmative action programs and to the enforcement of federal antidiscrimination laws and regulations that prohibit employment discrimination.

Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin.[5] Upon its passage, Title VII established the U.S. Equal Employment Opportunity Commission (EEOC) to enforce the law's provisions through investigation and conciliation. At that point, the EEOC had no litigation authority, rendering the enforcement of Title VII difficult. Five years later, in 1969, the Employment Litigation Section at the Department of Justice was established to bring lawsuits alleging violations of Title VII, but only in the private sector. It was not until 1972 that Title VII was amended to include protection for state and local government employees against discriminatory employment practices and to extend to those employees the administrative remedies available to individuals employed in the private sector.[6] The amendments also gave the U.S. attorney general authority to bring pattern or practice suits against state and local government employers.[7] The responsibilities for litigating cases under Title VII were then divided between the EEOC, which can file suit in the private sector,[8] and the Department of Justice, which can file suit against state and local employers.[9]

With the passage of the amendments, ELS became the primary federal institution responsible for safeguarding the employment rights of persons and ensuring fair employment practices and policies within the public sector. Over the years, ELS participation in various aspects of enforcement has shifted, and its docket has changed to include an increased number of cases defending legal challenges to the enforcement of federal affirmative action programs and equal employment opportunity regulations in other federal agencies. The Supreme Court's 1995 decision, Adarand Constructors, Inc. v. Pena,[10] established a new standard by which the validity of federally authorized programs that rely on race-based presumptions in favor of some minorities is to be evaluated.[11] As such, ELS represents government agencies in litigation challenging the validity of federal affirmative action programs.[12] In addition to enforcing provisions of Title VII and representing federal agencies covered under Adarand, ELS also has authority to prosecute enforcement actions upon referral by the Department of Labor of complaints that arise under Executive Order 11,246,[13] which prohibits discrimination in employment by federal contractors, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans Readjustment Assistance Act of 1974.[14] However, ELS primary responsibility remains the enforcement of Title VII as it pertains to state and local employers.

Through its enforcement efforts, ELS has played a role in opening doors for women and minorities by challenging many of the barriers to employment opportunities throughout the public sector. The Section has successfully challenged hiring, assignment, and testing practices of state, county, and local police and fire departments, and correctional institutions that discriminated against women and minorities. In addition, it has addressed other issues, such as gender segregation, systemic sexual and racial harassment, and discrimination in pay against women in other nontraditional public service jobs.[15] Through litigation and settlement negotiation, ELS has obtained millions of dollars in back pay and other compensatory relief for individuals who have been the victims of discriminatory employment practices in the public sector. In short, ELS has attempted to remove the barriers imposed by discriminatory practices, with the ultimate goal of making equal employment opportunity a reality.

The scope and reach of ELS work are made evident by the nature of the public sector work force. According to the Census Bureau, in 1997, there were approximately 16.7 million full- or part-time state and local government employees.[16] Table 1 depicts the five largest categories of state and local employers, which are within ELS enforcement domain. The education field accounts for the largest number of state and local employees (8.9 million), including elementary, secondary, and postsecondary schools, followed by the health and hospital industry (1.5 million employees), and the public safety (1.2 million employees), transportation (.8 million employees), and corrections (.7 million employees) industries.[17]

The work force in these and other public sector industries has become increasingly diverse since the passage of the Title VII amendments, but there is evidence that discrimination continues. The executive director of the National Black Police Association, based on his experiences in law enforcement over the past 30 years, contends that the barriers to equal opportunity are more sophisticated today than they were in the past, particularly in recruitment and promotion, and thus more difficult to challenge.[18]

For example, in 1994, the Department of Justice began investigating the hiring and promotion of Hispanic officers in the Washington, D.C., police department. Seven years later, the number of Hispanics employed by the department remains the same, at 173, despite a marked increase in the city's Hispanic population.[19] The review of the District's police department showed that Hispanic officers have filed equal employment opportunity complaints at a higher rate than any other racial or ethnic group in the department.[20] In Montgomery County, Maryland, where people of color make up 40 percent of the population, only 14.1 percent of career firefighters are minorities, and 13 percent are women.[21] A review of the recruitment and promotion patterns of the department also reveals that the highest ranking jobs continue to be held by white males.[22]

Although there is a paucity of current social science research on public sector discrimination, the notion that discrimination persists is supported by the number of complaints against public employers filed with the EEOC (on average 20,300 per year).[23] This evidence is further supported by national data on the representation of women and minorities in state and local governments. According to data collected by the EEOC,[24] in 1999, women comprised 44.9 percent of state and local government employees. The breakdown of all full-time state and local employees by race/ethnicity was as follows: white, 69.8 percent; black, 19 percent; Hispanic, 7.8 percent; Asian American, 2.7 percent; and American Indian, 0.7 percent.[25] While these percentages somewhat mirror the overall civilian labor force, there are clear differences in representation across industries and in employment positions.

For instance, the percentage of female employees is low in such industries as fire protection, where they make up only 8.7 percent of all employees nationwide; sanitation and sewage (16.1 percent); streets and highways (20.1 percent); utilities and transportation (23 percent); and police protection (28.6 percent). On the other hand, the public welfare, hospital/sanatorium, and health industries each have an employee composition that is more than 70 percent women.[26]

There are also disparities in the representation of people of color in certain state and local government industries. For example, people of color combined make up less than 25 percent of those employed in fire protection and natural resources, but make up nearly half of all people employed in the sanitation and sewage (45.4 percent) and utilities and transportation (44.2 percent) industries.[27] When compared with overall civilian labor force participation rates, the percentage of Hispanics, in particular, is disproportionately low in every public sector category except for welfare and housing. Asian Americans and American Indians are virtually absent from the corrections industry, making up only 1.9 percent of those employees.[28]

Taking this analysis a step further, patterns can also be detected within job categories across industries, most notably between men and women, but also along racial and ethnic lines. For example, according to EEO-4 data, in the highest ranking positions of government officials and administrators, white males make up the majority (55.6 percent). Lower paying administrative support and paraprofessional positions are dominated by white women. The largest concentrations of black and Hispanic females are in the two lower paying job categories, while black and Hispanic males are most present in skilled craft and service maintenance positions.[29] Combined, minority men and women make up less than 18 percent of all state and local government officials and administrators, despite comprising approximately 30 percent of all state and local employees. These numbers underscore the need for strong equal opportunity enforcement and emphasize the importance of ELS work.

METHODOLOGY

The purpose of the Commission's review is to assess the extent to which ELS, through its enforcement efforts, is effectively promoting and ensuring fair employment practices in the public sector, as defined by its mission and within the confines of available resources. The Commission reviewed ELS priorities, case selection procedures, workload, and performance management to determine the overall effectiveness of its enforcement program.

The Commission reviewed various ELS performance measures, dating back to 1980. Particular attention was paid to ELS productivity in recent years (1995 to 2000) as measured by performance indicators developed in compliance with the Government Performance and Results Act (GPRA).[30] Those measures include both input (workload) and output (productivity), such as the number of EEOC referrals received and pursued, the number of investigations and cases initiated, the length of time required for investigations, the percentage of matters and cases resulting in a settlement agreement or judgment in favor of the plaintiff, the number of victims receiving relief, the types and amount of relief garnered, and the amount of defensive work handled.[31] This evaluation also examines other components of ELS workload, including issuing right-to-sue notices,[32] obtaining and monitoring compliance with consent decrees and settlement agreements,[33] conducting outreach, assisting employers in the development of nondiscriminatory practices and procedures, and responding to citizen inquiries. By assessing the productivity of ELS and outcomes of its efforts, this report also attempts to determine the overall impact of ELS work on the elimination of employment discrimination in the public sector.

The information for this study was obtained primarily through interviews with ELS staff; interviews with representatives of external organizations and EEOC legal staff; review of personnel, policy, and procedural documents; and review and evaluation of ELS budget submissions, GPRA reports and related documents, and the ELS docket. The Commission also obtained and analyzed data submitted by ELS, which included extracts from three primary data sets: the EEOC Charge Data System, ELS Case Management System, and ELS data set of all right-to-sue notices issued. These data, available from 1990 to 2000, were used to identify patterns in ELS enforcement activities and to confirm general conclusions drawn from workload numbers provided by ELS and the Commission's own review of case inventory.[34]

The Commission's analysis was greatly hindered by the lack of reliable data and the Division's poor record-keeping system. Because of the unreliability of the data (i.e., missing values and inconsistent entries) and the lack of sophistication of the Case Management System, the Commission was unable to use these data to draw statistical conclusions about ELS workload and had to rely largely on performance indicators found in budget submissions. In many instances, the Commission had to rely on ELS own internal records and numbers provided specifically upon request, and often these numbers identified from other sources did not match those cited in budget documents. Differences such as these had to be reconciled throughout the report.

It should be noted that except for a General Accounting Office report released in 2000, which reviewed cases and matters at three of the Division's sections (including ELS),[35] the Commission found no other current reports or studies of ELS that present an in-depth evaluation of productivity and performance.[36] The Commission previously reviewed the Section in three reports issued in 1971, 1977, and 1987.[37]