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 4

ELS Enforcement Program: Priorities and Workload

The Commission's evaluation of ELS performance has three components: (1) how ELS arrives at its body of work through priority setting and case selection, (2) whether ELS goals sufficiently measure its stated priorities, and (3) whether ELS has in fact reached its stated performance goals. For the purpose of this analysis, an assessment of ELS workload is derived from the work received (input) and productivity (output) based on performance measures identified by ELS pursuant to GPRA reporting requirements, as outlined above.[1] The following discussion outlines each activity in ELS enforcement program in terms of case selection and workload.

It is noteworthy that assessing ELS actual workload is difficult for a number of reasons, in part because ELS has not identified appropriate measures, as the preceding discussion outlined. This is compounded by the Civil Rights Division's inadequate record-keeping system of the past, and ELS subsequent reliance on individual staff records and collective memory. Further, until fiscal year 2001, it was impossible to determine the percentage of resources dedicated to each ELS activity. However, the Division's new Interactive Case Management System, which was being implemented as this report was drafted, is expected to accurately track the amount of staff time spent on specific tasks.

PRIORITY SETTING AND CASE SELECTION

ELS priorities are reflected in the strategies used to select cases and in the areas of enforcement focus. In an era of limited resources and increased workload, the charges ELS pursues must be carefully constructed so as to have maximum effect and potential for future impact. The scope and range of issues pursued by ELS, however, are limited by the available resources and the nature of the Section's work. For example, often resources are consumed by ongoing litigation and monitoring, which can continue for years. Under these circumstances, it is necessary to determine whether ELS effectively manages its resources to meet its enforcement goals through the appropriate selection of cases.

ELS has been delegated responsibility for structuring its enforcement program, within the parameters established by the Department. Over the years, despite changes in administration, ELS working priorities have fluctuated quite modestly, and in fact the majority of the Section s activities have remained constant. It should be noted that there are also some components of ELS work that are dictated by external events, such as its defensive litigation, over which the Section and the Division administration do not have control.[2] According to the acting assistant attorney general for civil rights, between 80 and 90 percent of the Division's work carries on from year to year and is not affected by changes in administration. This is particularly true for ELS, which is one of the few long-established programs in the Civil Rights Division.[3] For example, historically, there has always been an emphasis on pattern or practice cases, particularly in law enforcement and corrections and with respect to selection devices, such as pre-employment tests. Interviews with current ELS staff reveal that these areas of enforcement remain priorities, despite changes in work force and developments in legal precedent.

An estimated 10 to 20 percent of the Section's work, however, which is often the most visible, undergoes reprioritization as a function of an administration's goals.[4] Nonetheless, it appears that over the years, even these changing enforcement initiatives have occurred within parameters. For example, pattern or practice cases remained a priority, but the types of cases prioritized changed. Dating back to the mid-1980s, former Assistant Attorney General Bradford Reynolds directed ELS to focus its pattern or practice program on the discriminatory effects of pre-employment testing and selection devices. Specifically, he asked the Section to offer assistance to and work cooperatively with jurisdictions to develop nondiscriminatory tests.[5]

Former Assistant Attorney General Deval Patrick requested that ELS focus its pattern or practice program on discrimination against minorities and women in the selection and assignment of elementary/secondary school teachers and administrators; patterns or practices of discrimination in agencies that deal with the public, such as utility and transportation departments; and discrimination against women and minorities in promotions and other glass ceiling issues in public safety, transportation, and public utilities industries.[6]

Under former Assistant Attorney General Bill Lann Lee, pattern or practice cases remained an ELS priority, particularly the development of a focused approach to systemic disparate treatment issues.[7] Examining the hiring practices of law enforcement agencies also remained an ELS focus, stemming from the administration's interest in police misconduct.[8] At the time this report was drafted, the new administration under President Bush had not yet identified its priorities for ELS, nor had an assistant attorney general for civil rights been confirmed (see Epilogue). According to the section chief, ELS will continue to operate in its current fashion until further notified by the new administration. She could not speculate as to whether there would be any sweeping policy changes instituted that would affect the Section's priorities.[9]

In addition to directing the enforcement program, the priorities of the administration in office also drive the budget process. The section chief stated that her budget submissions and requests for enhancements are usually connected to the priorities and initiatives of the President, the attorney general, and the assistant attorney general for civil rights.[10] In other words, to develop her budget request, the section chief looks at the priorities of the administration and makes a connection between its priorities and the work of the Section, linking the request to the larger goal at stake. [11]

For example, one of the Department's priorities over the past few years has been law enforcement, particularly police practices.[12] The acting assistant attorney general for civil rights stated that the Department recognizes the relationship between police departments and the communities they serve as one of the persistent civil rights problems. He acknowledged that it is a good time for ELS to emphasize in its budget requests that all segments of a community should have access to employment opportunities in police departments.[13] Thus, to justify its 2002 budget request, ELS focused on the connection between police misconduct and employment practices, citing a diverse police force as a necessity for improving community policing.[14] ELS focused its budget request on the need to improve recruitment, selection, anti-harassment, and disciplinary policies in police departments through the initiation of additional pattern or practice cases.[15] The budget process and requests for enhancements should be driven by performance measures and the goals of the Section, while at the same time allowing for unpredictable emerging issues.

Although ELS enforcement efforts must follow the priorities set forth by the assistant attorney general for civil rights, there is no consistent mechanism for either the establishment or communication of priorities to ELS, and the Section's enforcement strategy is disseminated largely through periodic meetings and oral communication. According to the acting assistant attorney general for civil rights, there are no formal written policy statements or enforcement plans, other than the departmentwide strategic plan, which does not provide detailed objectives or priorities.[16]

Overwhelmingly, the administration's priorities are translated down to ELS staff informally through Section meetings and e-mails, not formal policy documents. As previously mentioned, ELS relies heavily on an informal and oral culture, rendering the Section vulnerable to uncertainty should sweeping personnel changes occur among senior staff. Furthermore, lack of sufficient documentation makes it impossible for outside observers to identify Section priorities and progress toward espoused goals, other than through interviews with staff and review of annual performance plans. The lack of clearly defined priorities could compromise staff accountability.

There also are no clearly defined strategies for case selection. According to the section chief, ELS case identification strategies vary, and the Section receives external input on the types of issues needing to be addressed through interaction with other DOJ offices and communication with public sector employment groups and civil rights organizations.[17] In addition, ELS frequently has the opportunity to make recommendations about the direction of the enforcement program to the assistant attorney general for civil rights.[18] The flexibility built into the case selection process enables ELS to take on cases that look promising, rather than declining ones that do not fit into a rigid goal or objective.[19] And, in fact, ELS staff have demonstrated the ability to identify good cases based largely on intuition and experience. However, intuition and experience should not be substitutes for a systematic planning process, from which clearly defined priorities would justify case selection.

Despite the absence of clearly defined priorities or formal case selection guidelines, there are some basic criteria for both the EEOC referral and pattern or practice programs. Case selection hinges on the presentation of evidence and the probability that litigation will result in a judgment or settlement in favor of the plaintiff(s). ELS does not pursue charges in which the evidence is weak, a valid claim under Title VII cannot be demonstrated, or an outcome in favor of the defendant could result in the development of a legal precedent counter to the intent of Title VII.

EEOC REFERRALS 

Selection of Matters and Cases

EEOC refers individual charges of discrimination filed under Title VII against state and local employers to ELS only after it has determined that there is reasonable cause to believe that discrimination has occurred, and attempts to reach resolution through conciliation have failed.[20] Given the limited resources of ELS, not all charges referred from EEOC can be pursued, and ELS must be selective. EEOC staff can make recommendations as to whether or not a charge warrants litigation,[21] but ELS (the section chief in particular) determines whether the matter should be pursued, and the assistant attorney general determines if a case should ultimately be filed. The Commission finds that given its expertise in employment discrimination litigation, it is appropriate that ELS initially determine and advise the assistant attorney general on the legal merits of a potential case and the feasibility of its pursuit.

While there are no definitive guidelines for case selection, there are many reasons why ELS might dismiss a charge without further action. The deputy chief responsible for screening EEOC referrals stated that he would recommend that ELS not pursue litigation on a charge and that a right-to-sue notice be issued on it if:

• it were determined that the burden of proof necessary to prove discrimination in court could not be met based on the evidence presented, even if there were reasonable cause to believe discrimination occurred;

• the amount of loss to the charging party were relatively small in relation to the resources required to litigate; or

• the credibility of the charging party and witnesses were questionable.[22]

This initial screening eliminates many charges, but other factors further narrow the pool to those that might eventually be pursued through litigation. One consideration for pursuing an EEOC referral is whether other similarly situated individuals also might be affected by the discriminatory action.[23] ELS is more likely to pursue those matters that could remedy a systemic problem or obtain relief for multiple victims, in an attempt to maximize efficiency.[24] In these instances, the matters may be classified as 706/707, indicating that they stemmed from an EEOC charge, but that ELS has broadened the investigation to look for a pattern or practice of discrimination. According to the deputy chief responsible for overseeing the EEOC referral program,

[the Section s] main criterion is whether there is evidence here of systemic discrimination, whether there's a potential pattern or practice of discrimination, and even if there's not a potential pattern or practice of discrimination, are there several other individuals who are potential victims of discrimination?[25]

Giving careful consideration to EEOC referrals is important for several reasons. One strong justification is the fact that many of the issues that arise through referrals will not present themselves through other avenues. Further, 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.[26] For example, religious discrimination, retaliation, and glass ceiling cases often stem from individual complaints, but have implications beyond the individuals directly affected. According to ELS staff, other EEOC complaints that might warrant ELS intervention are those that involve discriminatory action that is particularly egregious or ongoing, and those for which the outcome would further ELS enforcement goals.[27] According to one public sector employee advocate, it is often the case with egregious discrimination that only one victim will come forward to file a complaint, particularly because of the profound threat of retaliation. An individual complaint that results in relief for the complainant can be beneficial on a broader scale because it signals to the employee community that the system works.[28]

EEOC Referral Workload

Each year, ELS receives substantial referrals from EEOC, and the number has steadily increased since FY 1995 when ELS received 133 referrals, to FY 2000 when ELS received 756 referrals (see table 4).[29] This increase can be attributed to the increase in charges received by the EEOC, but even more so to the streamlining of EEOC's charge handling process since the implementation of Priority Charge Handling Procedures in 1995.[30] The new procedures allow EEOC regional staff to send potential cases directly to ELS without having to gain prior approval from the agency's general counsel.[31] While this might make for more efficient processing of complaints on EEOC s end, it is possible that by eliminating one level of review, EEOC is not referring the complaints most likely to merit litigation. The end result is that ELS must expend more resources scrutinizing these referrals. However, given ELS limited resources, dollars spent scrutinizing cases further reduce the number of actual cases it can handle.

The high number of referrals that ELS receives from EEOC renders investigation of all of them impossible, especially given ELS insufficient resources. Thus, a limited number of these investigations are initiated each year. In fact, on average, ELS commences between 20 and 30 supplemental investigations of EEOC charges each year, a small percentage of the total number of referrals (see table 4). Fiscal years 1995 and 1996 were an exception to the norm, as ELS only initiated six and four investigations, respectively, from EEOC referrals.[32] These correspond to the years immediately following the Adarand decision and, subsequently, an increase in the number of defensive matters ELS received. Thus, the Section could not initiate as many supplemental investigations, but ironically did manage to file as many or more suits in those two years, presumably from previous years referrals, than in subsequent years (see table 4).

From the investigation process, ELS only generates an average of eight lawsuits each year from EEOC referrals. Over the six-year period, ELS received 2,051 referrals and commenced 116 supplemental investigations (roughly 5 percent of all referrals), 51 of which resulted in the filing of a lawsuit. Nearly half of the investigated EEOC referrals over the six-year period resulted in a lawsuit, but this represents only about 2.5 percent of all EEOC referrals. EEOC attorneys have voiced frustration with ELS failure to litigate more cases. According to one regional attorney, there is no motivation for EEOC attorneys and investigators to spend time developing strong charges for state and local government complaints when only a small proportion will be pursued by ELS.[33] In addition, with finite resources and increasing numbers of referrals, the percentage of cases ELS pursues will necessarily decrease. Therefore, ELS should develop a mechanism for referring good charges to the private bar to ensure that they do not go unaddressed.

The section chief admits there are good referrals ELS cannot take on because of insufficient resources.[34] The entire process of case selection, including initial review and investigation, is extremely time intensive, although the amount of resources needed to process a referral varies, depending on the issues involved and the sufficiency of the initial investigation completed by EEOC. According to one deputy chief, supplemental investigations of EEOC referrals take an average of nine months to complete, although the Section's working goal is to complete them in six months.[35] For individual claims of discrimination, however, nine months for the completion of a supplemental investigation appears excessive. ELS should consider requesting appropriations to hire investigators to assist with supplemental investigations of EEOC referrals.

The amount of resources expended on the entire EEOC referral process is not adequately represented in ELS workload summaries and performance indicators; nor are the outcomes of such activities appropriately quantified, despite there being some significant opportunities to do so. For instance, establishing an attorney referral program and tracking the charges referred is an example of a mission-related performance goal that could be easily measured.

As of June 7, 2001, ELS had 95 active matters and cases initiated from EEOC referrals, ranging in stages from investigation to compliance monitoring.[36] Suits initiated under ELS 706 authority (referrals) have involved, for example, allegations of harassment, retaliation, involuntary reassignment, failure to promote, discrimination on the basis of pregnancy, unlawful discharge, and religious discrimination.[37]

PATTERN OR PRACTICE MATTERS AND CASES

Identifying Pattern or Practice Issues

Pattern or practice cases (sometimes referred to as 707 ) have been a priority at ELS, and in the Civil Rights Division as a whole, since the passage of the1972 amendments to Title VII, which gave the attorney general the authority to initiate these types of cases. They remain an integral component of ELS work. Employment discrimination experts believe these cases have the greatest potential to effect change in the public sector employment environment and eliminate discrimination, and should therefore remain a Section priority.[38] Furthermore, pattern or practice cases are resource intensive and time consuming, and as such require federal government involvement because public interest groups may not have access to the resources needed to handle them, and the private bar may deem them unfeasible after a cost-benefit analysis. ELS resources and expertise, on the other hand, are sufficient to identify and litigate cases against large entities, such as state and local governments. Pattern or practice cases make up a small portion of ELS litigation docket, due to their resource-intensive nature, but they are critical to its enforcement efforts.

The assistant attorney general ultimately must approve the pattern or practice matters and cases ELS pursues, but ELS has been delegated the authority to seek out patterns of discrimination that fall within its jurisdiction and promote the interests of the Department. As with the Section's 706 program, no formal strategic plan exists for the Section s pattern or practice program, making the priorities of the Section less identifiable.[39] Again, it appears that Section staff have relied on experience, knowledge, and instinct throughout the pattern or practice process, including in the initiation of statistical analyses that lend support for the pursuit of these matters. Although this approach appears to have served ELS needs over the years in terms of its effectiveness in handling worthwhile cases, the approach nevertheless contains the shortcomings associated with its informality.

ELS identifies possible pattern or practice matters through numerous sources, including newspaper articles, citizen mail, meetings with community groups, and often through individual charges filed through the EEOC. However, ELS primary method for identifying these systemic cases is through analysis of Census data and employer reports (EEO-4 data) to determine if there are irregularities in employee selection in various industries as compared with the total population.[40] This method is referred to as statistical targeting and has been used by the Section since 1971, when the Supreme Court validated the adverse (statistical) impact model of discrimination.[41]

The Section's statistician begins targeting efforts by comparing EEO-4 data with Census data.[42] From these data, the statistician generates a list of the shortfalls of minorities and compiles a list in rank order from highest shortfall to lowest. For example, minority representation within each fire department would be compared with all other fire departments to determine its level relative to the minority labor pool. Each time the new EEO-4 data are received, ELS statistician analyzes the data for potential violations involving state and local police, fire, and corrections divisions. She is given direction from the section chief to perform additional analyses, such as for national origin issues or nontraditional jobs.[43] This statistical analysis is only the first step in the process; if disparities present themselves, ELS looks into the matter more closely through a preliminary investigation.

In other instances, the statistician will conduct a labor market analysis using Census data from a specific market area to assess an agency's hiring practices. For such an analysis, she will compare recent hires with an age and education extract from the Census that represents minimum work force qualifications.[44] The Section has tended to focus on hiring issues because the data are more concrete and the large pools of potential employees make hiring differences evident. In contrast, the ability to derive an accurate picture of discriminatory promotional practices or disparate discipline issues through statistical analysis is hampered when an industry starts out with low numbers of people of color and women and fails to attract more.[45]

Specific Areas of Pattern or Practice Focus

A review of ELS inventory reveals that, although many critical employment discrimination issues require attention, two areas have received particular focus in its 707 program: discrimination in law enforcement and corrections, and the disparate impact of pre-employment testing and selection devices. ELS staff contend that the Section's long-standing pattern or practice focus on these areas is justified given the traditional discrimination embedded in these industries and the broad potential for impact. According to one special litigation counsel,

I think what most people say is the bread and butter of the work of our Section has been these larger pattern or practice cases, testing cases in particular against police, fire, and corrections departments because they are so large, because they have the largest impact in bringing about any systematic change that will affect the . . . largest number of people.[46]

Law Enforcement and Corrections

The Section has been heavily involved in bringing Title VII suits against state and local law enforcement entities since the Civil Rights Act of 1964 was amended in 1972 to cover those agencies. According to one special litigation counsel, those suits have been filed on behalf of both women and minority groups.[47] In addition to its obvious objective of eliminating employment discrimination by law enforcement agencies, the Civil Rights Division has used litigation against these entities as a means of fighting police misconduct and racial profiling. In a statement before the House Subcommittee on the Constitution, former Assistant Attorney General for Civil Rights Bill Lann Lee stated:

[B]reaking down barriers that unfairly deny talented women and people of color the opportunity to serve is key to creating high-performing law enforcement teams. Moreover, police forces that reflect the diversity of the communities they serve are better able to form positive working relationships with community members, leading to more effective law enforcement.[48]

Since the mid-1980s, the Section has also developed several pattern or practice cases involving the treatment of women in departments of correction. Most state and local departments of correction, at that time, had in place policies and practices that had the effect of excluding women from correctional officer positions and limiting their promotional opportunities.[49] According to one special litigation counsel, the result of ELS persistence in this area has been an increase in the number of women hired in state and local correctional facilities.[50] The section chief speculates that over the next few years these cases will become increasingly unnecessary because ELS will have made major inroads in this area of discrimination. She cited the fact that ELS has litigated several big money, big victim cases against state correctional departments as proof that major strides have been made toward cleaning up the industry's historical problems.[51] 

Employment Selection Devices (Testing)

When Congress adopted the Civil Rights Act of 1964, it grappled with the effect of pre-employment tests on equal employment opportunity. The use of such tests frequently denied employment to minorities and women without evidence that the tests were related to job success.[52] Title VII put in place protections against this form of discrimination by only allowing the use of tests that are not designed, intended, or used to discriminate. [53] Further, an employer's intent is irrelevant; if tests have an adverse impact, they are unlawful under Title VII, unless justified by business necessity.[54]

Because ELS uses its pattern or practice authority to address issues of large magnitude and that have the potential to affect many people, a good portion of its work in this area involves unfair hiring and recruitment practices. Since the early 1980s, a 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 a negative impact on minority and female candidates. According to one of ELS special litigation counsels, who is primarily responsible for handling testing cases,

[i]t has been our experience that many of the selection devices result in disparate impact, and I must say very severe disparate impact upon Hispanics and especially upon African Americans in their written examinations and upon women in their physical strength and agility tests. It s been our experience that many of these tests lack . . . sufficient evidence as to job relatedness or validity that would allow for their lawful use under Title VII.[55]

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 and consultation. In some instances, ELS has worked cooperatively with jurisdictions that have been in violation of Title VII to develop new testing devices. In other instances, the Section has referred jurisdictions to models of tests that have proven effective and nondiscriminatory. In still other instances, the Section has taken an advisory role, reviewing tests and providing advice on how to administer them appropriately.[56] ELS staff have been working on developing written examination composites that contain a cognitive component, but also include personality traits, interpersonal skills, emotional stability, and a biographical inventory.

ELS staff contend that, by eliminating barriers to entering certain fields, job opportunities will be created, and eventually the representation of protected groups will grow closer to parity with the U.S. population.[57] ELS will then be able to focus on other issues such as barriers to promotion or disparate disciplinary action. Despite being an expressed goal, ELS has not set any specific measures for determining when this goal has been met,[58] or the impact of its enforcement efforts. Short of any concrete measures, ELS will most likely continue to pursue the same types of cases, without branching into areas of enforcement demanded by the times and the changing labor pool.

In the future, the Section plans to focus its pattern or practice program more on disparate treatment cases, which are sometimes more difficult to identify.[59] The Section recently recruited a fourth deputy chief to handle these treatment cases, a move that will result in more work for the Section. Without the addition of attorneys to handle these matters as they are developed, resources will have to be taken away from another programmatic area. The section chief envisions pulling resources from the existing 706 (EEOC referral) program and hopes that the Section's affirmative action defensive work will eventually slow down.[60]

Pattern or Practice Workload

Between FY 1995 and FY 2000, ELS commenced, on average, five pattern or practice investigations each year (see table 5).[61] During that period, the Section filed an average of three lawsuits per year, totaling 18 pattern or practice cases. Because of the amount of work involved in developing pattern or practice investigations, cases filed in any given year generally stem from investigations initiated in previous years. Several pattern or practice matters initiated between 1995 and 2000 were still under investigation at the time this report was drafted, although eight investigations (or 25 percent) initiated during this period were closed without action beyond the preliminary investigation stage (see table 5). ELS budget submissions confirm that, fairly consistently, 75 percent of pattern or practice matters initiated result in a lawsuit.

As figure 3, which was previously discussed, shows, ELS has projected it will commence between four and six lawsuits each year.[62] With the exception of fiscal year 1997, when the goal was set at four cases, the Section did not meet its stated goals during the period between 1995 and 2000. The year in which the Section missed its goal by the largest margin was 1998, when it had expected to file six cases but only filed two.

Given the Section's focus on addressing systemic discrimination, and the identification of pattern or practice cases as a Division priority, the number of cases filed under 707 authority each year seems small, especially compared with the numbers filed in the past.[63] For instance, a 1987 Commission evaluation of the Section revealed that from 1981 to 1984, ELS filed 35 pattern or practice suits, or an average of approximately nine each year.[64] According to one employment attorney, the number of pattern or practice cases ELS files each year should be higher given the number of attorneys on staff.[65]

It should, however, be acknowledged that these cases often take months, if not years, to reach resolution. The Section may also have had other extraordinarily complex cases that required resources previously devoted to this area, such as defensive work, which this report notes has increased. Another factor that must be taken into account is the staff resources needed to investigate and ultimately litigate one 707 (pattern or practice) case as compared with the resources needed to exercise the full range of other ELS obligations. First, a senior level attorney is assigned full time to review pattern or practice matters with potential. In ELS, the special litigation counsel is generally consulted as to whether a matter should proceed under 707 authority.[66] If the matter has some potential, it is assigned to a senior trial attorney as the lead attorney, and possibly other attorneys who may assist.[67] When it is extremely high profile or has the potential to rise to that level, the special litigation counsel will also become involved.[68]

DEFENSE OF FEDERAL AFFIRMATIVE ACTION AND ENFORCEMENT PROGRAMS

In addition to its work representing plaintiffs in employment discrimination cases, ELS is responsible for defending government agencies against challenges to their race-based affirmative action programs. ELS also represents federal agencies when they are sued for alleged overzealous enforcement of antidiscrimination laws.[69] ELS refers to this responsibility in its entirety as its defensive work. [70]

ELS defensive work includes challenges to the Department of Labor's enforcement of Executive Order 11,246, which prohibits discrimination in employment by federal contractors.[71] Since the early 1970s, ELS has defended the Labor Department in challenges to the executive order and administrative proceedings undertaken pursuant to the order, as well as statutes such as Section 503 of the Rehabilitation Act of 1973, as amended,[72] that use the same administrative enforcement process. Often, these challenges allege that the executive order or its enforcement mechanisms are unconstitutional and should be enjoined. Most of these cases, which are brought by contractors seeking review of ongoing or potential compliance review or enforcement proceedings, have been dismissed by the district courts based on the contractors failure to exhaust their administrative remedies.[73] ELS defense of the executive order and the Department of Labor s implementing regulations have been successful, and several recent appellate decisions have solidified Labor's position in its enforcement program.[74]

Post-Adarand Defensive Work

The defensive component of ELS enforcement program has been most active since the issuance of a pivotal Supreme Court decision in 1995. In Adarand Constructors, Inc. v. Pena, the Supreme Court held that federal affirmative action programs that use racial and ethnic criteria as a basis for selection are subject to strict judicial scrutiny.[75] The Court held that such programs must serve a compelling governmental interest and be narrowly tailored to serve that interest.[76] According to DOJ guidance on affirmative action, a program designed specifically to remedy the identified effects of past discrimination, which is considered a compelling governmental interest, would likely survive the strict scrutiny test.[77] Once the compelling interest standard has been met, the agency must demonstrate that the program is narrowly tailored to serve only that interest.[78]

Even though the Adarand decision was a challenge to a Department of Transportation contracting program, it has been interpreted to extend to all race-based contracting programs in the federal government.[79] ELS is required to defend all charges brought against federal affirmative action programs. When a challenge is received, the Section conducts a factual inquiry to determine what occurred. One deputy chief is primarily charged with reviewing these defensive matters and assigning them to trial attorneys. Upon review of the facts, a decision is made on how to handle these cases, particularly whether the program in question is valid and should, therefore, be defended through litigation or through pre-trial settlement.[80] According to the section chief,

we are required to defend, but . . . there's a process that goes on with the agency to decide the best way to do that. In other words, is there a way to resolve the suit if warranted? Is there a way to resolve the suit quickly . . . so that it does not, in fact, get tried?[81]

It should be noted that ELS attorneys do not make strategic decisions about defensive actions. Counsel from the affected agency as well as the Office of the Assistant Attorney General for Civil Rights both have roles in the decisions regarding affirmative action challenges.[82]

The climate of affirmative action is evolving, making ELS defensive role subject to change. On March 26, 2001, the Supreme Court announced that it would revisit the Adarand case. The Court agreed to review an appeals court decision rejecting the plaintiff s equal protection challenge to a federal procurement program giving bonuses to contractors that subcontract with disadvantaged business enterprises.[83] In September 2000, the Court of Appeals for the 10th Circuit ruled that the revised disadvantaged business enterprise program passed the constitutional requirement, even under strict scrutiny.[84] In its petition for another Supreme Court review, the plaintiff alleges that the lower court applied a far more lenient standard for the federal program than would be applied to state and local government programs based on racial classification.[85]

Although the case will not be argued until the fall of 2001, and a decision is not likely until 2002, there is already speculation about the far-reaching policy implications of the ruling. ELS has no control over the outcome of the upcoming Supreme Court case or how DOJ s administration will interpret the decision, but the Section's defensive workload could be affected nonetheless. The Solicitor General's Office is preparing the Department's brief, which ELS will likely have the opportunity to review and comment on prior to filing.[86] If the Court affirms the constitutionality of the program in question, it may lay to rest future attacks. On the other hand, if the Court strikes down the program, the challenge will lie in determining whether other similar programs could survive.[87] 

Defensive Workload

ELS defensive workload increased sharply in 1996, the year after Adarand was decided. However, since then the number of defensive matters and cases ELS receives each year has stayed fairly consistent, averaging approximately nine per year, with an average of 19 pending at any given time. During FY 2000, ELS reported that it received seven new defensive cases and matters and had 18 pending.[88]

ELS defensive litigation responsibility includes responding to applications for temporary restraining orders, addressing motions for preliminary injunction, and conducting evidentiary hearings. Absorbing the additional post-Adarand work seems to have had an effect on ELS utilization of its budget allocations, particularly in the earlier years, because the Section's performance indicators in other enforcement areas dropped.[89] As discussed in a preceding section, in 1995 and 1996 ELS initiated only a fraction of its normal number of supplemental investigations from EEOC referrals (see table 4).

ELS estimates that during the peak period between 1995 and 2000, defensive matters consumed approximately 25 30 percent of staff time and resources.[90] However, data from ELS new Interactive Case Management System indicate that this percentage has since decreased. During the first six months of fiscal year 2001, the period for which these data were first tracked, defensive matters and cases consumed 21 percent of staff time and resources.[91] Although ELS has engaged in significant litigation activity, its proactive anti-discrimination work [is] hampered somewhat by its need to divert resources to engage in defensive litigation to protect federal affirmative action programs. [92] Further, it is difficult for the Section to plan its enforcement program around these cases because they are somewhat unpredictable. According to the section chief,

it's difficult to measure how much we're going to need to allocate to that responsibility due to the fact that we are responding to the filing of suits, and we do not know when those suits are going to be filed necessarily or how many of them are going to be filed.[93]

In its FY 2001 budget submission, the Section stated that the demands placed upon the Section by defensive litigation have resulted in personnel being diverted from investigating and litigating affirmative Title VII cases. As a result, the enforcement of Title VII has suffered and has been less effective than it should be. [94]

OTHER ELS ACTIVITIES

ELS engages in several important enforcement activities that complement its investigation and litigation components. Such activities include monitoring compliance with consent decrees and settlement agreements, issuing notices of right-to-sue, and conducting outreach and technical assistance. ELS has only recently begun tracking some of these activities, while others have been tracked for many years. However, although the related performance indicators have evolved, ELS has not developed consistent standards for determining the outcomes of its efforts in these areas.

Monitoring Compliance

Approximately 80 percent of authorized suits are settled without a trial, either through a consent decree or other settlement agreement.[95] According to the section chief, ELS is able to maximize its use of resources by resolving cases short of trial, and in some instances, without a lot of pre-trial discovery, which is also resource intensive.[96] Approximately 85 percent of the remaining cases result in a judgment in favor of the plaintiff. In these cases, ELS seeks court orders requiring resolution to the violation.[97]

Once the outcome of a case has been decided, either through judicial decree or settlement agreement, remedial actions are determined. ELS can seek to obtain relief in the form of offers of employment, back pay, and other compensatory relief for victims of unlawful employment practices.[98] The general policy of the Section is to obtain full relief for individuals harmed by discriminatory practices, tailored to the violation that occurred.[99] It is the responsibility of the Section to monitor the outcomes of the cases to ensure that the terms of the settlements and decrees are met by the defendant.

Between 1995 and 2000, ELS obtained an average of 20 consent decrees and out-of-court settlements each year, although table 7 shows that the number of decrees and settlements increased dramatically between 1998 and 2000. This number was inflated largely due to out-of-court resolutions of instances where employers failed to report information on the race, national origin, and gender of employees to the EEOC (as required by Section 709 of Title VII).[100] If state and local government employers having more than 100 employees fail to file such reports on a biennial basis, ELS will seek compliance. Usually, the threat of litigation incites compliance, and employers file the necessary report. ELS has never actually had to file suit based on failure to file an EEO report, so little monitoring is necessary for Section 709 violations.[101] As will be discussed below, other types of consent decrees require more extensive monitoring.

Enforcement of consent decrees has long been an important component of ELS litigation process. However, in the past, ELS has been criticized for failing to adequately monitor the court orders and consent decrees that it obtained.[102] Specifically, ELS has been criticized because its monitoring traditionally only consisted of regular, yet informal, reviews and semiannual reports that ELS receives from defendants. In recent years, as table 7 indicates, the number of court orders for which ELS initiated additional judicial activity has increased significantly. This can be attributed to the increase in the number of decrees obtained, but also to an increased emphasis on compliance enforcement among ELS priorities. In time, as the number of decrees obtained increases, additional time and energy will be needed to enforce the decrees, and additional resources will be needed for this component of enforcement.

ELS staff contend that in most cases the entry of the decree is only the first step in the process of securing compliance with the law. Ensuring compliance with consent decrees and court orders is a time-consuming and resource-intensive component of ELS enforcement program. Consent decrees often require monitoring for several years after ordered to ensure that employers are in compliance with the terms of the agreement. Thus, the pool of consent decrees requiring monitoring is actually much larger than the number of decrees obtained in any given year. According to data from ELS Interactive Case Management System, as of June 5, 2001, ELS had 73 cases in active compliance monitoring, the earliest dating back to 1970.[103]

Generally, the relief obtained in the more complex pattern or practice cases is more difficult to monitor. According to one senior trial attorney,

if you have a complicated testing pattern or practice case, it has to really be effectively monitored by somebody who has experience and expertise in working with the experts and understanding test development. It s really not much different than what you would do to prepare a case for trial.[104]

For example, in one case ELS attorneys make monthly appearances in court to discuss the defendant's development of new selection procedures for a number of different jobs. In that case, ELS attorneys have worked with test development experts and a court-appointed industrial organizational psychologist to ensure that the selection devices developed are in compliance with the consent decree.[105] In another case, ELS attorneys are monitoring the development of selection devices that affect all firefighter positions statewide. That case has resulted in many litigation activities, including attempts to intervene by employee unions and attempts to enjoin various selection procedures, which require a fair amount of ELS involvement.[106]

The method for tracking compliance activity has changed from year to year. For example, as table 7 shows, in fiscal year 2000 ELS began including in its year-end counts decree modifications and extensions in addition to new decrees and settlements. This makes it impossible to make comparisons with 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, versus how many entail more complex activity. For these indicators to be meaningful, ELS must make every effort to determine what the appropriate measures are.

The performance goal for the number of decrees actively monitored at year end has been set at 60 nearly every year from FY 1992 to FY 2000. Performance has surpassed that amount in four of the six fiscal years shown in figure 5. The 79 decrees that were actively monitored in FY 1995 may have led to a higher goal of 75 that was initially set for FY 1997 performance. However, the FY 1997 goal was revised to 60 when the FY 1998 budget submission was developed. This pattern may be changing one goal for FY 2000 was set at 65 and was achieved.[107]

Note: The FYs 1996 and 1998 submissions report the FY 1996 target as 60. The FY 1997 reports it as 75. 

Source: U.S. Department of Justice, Civil Rights Division, FY 1992 2002 Congressional Budget Submissions.

Until the recent implementation of the Interactive Case Management System, ELS managers had no way of knowing, with any degree of precision, the amount of time spent on monitoring activities. With the new system in place, ELS may need to do an internal evaluation of its monitoring efforts to determine the best allocation of resources. Given resource limitations and the time-consuming nature of some compliance cases, ELS should give consideration to establishing a pilot program to contract out some of its more complex monitoring cases to private firms that could pursue the extensive judicial activity these cases require. With respect to testing cases, ELS could contract out the post-litigation monitoring of test development to test developers, thereby freeing up significant amounts of attorney time, making them available to pursue other cases and matters.

A review of compliance reports from cases involving hiring and recruitment practices indicates that there has been some success in getting employers and others under decree to adhere to and follow the provisions of the settlement agreements. According to one senior trial attorney, it is rare that ELS actually has to go to court to enforce a consent decree and to obtain the relief identified as necessary.[108] ELS staff believe that in many of the decrees, the results have transformed the nature of the employers work force. However, none of the performance measures currently used to gauge compliance monitoring addresses this important outcome. ELS must develop measures to assess the work force changes initiated as a result of its enforcement efforts and set appropriate goals.

ELS also notes that strict injunctive provisions prohibiting all forms of employment discrimination, make-whole relief for all identified victims of discrimination, training and outreach programs, and extensive reporting requirements have enabled employers under the decrees to perform at an extremely high level of compliance. Yet, this is another example of where ELS could improve. Customer satisfaction should be the ultimate goal of compliance monitoring activities. Therefore, ELS should have regular contact with the beneficiaries of relief to determine if the conditions of the consent decree or settlement agreement have been met and if the desired outcome has been achieved another way to determine enforcement impact.

Issuing Right-to-Sue Letters

The Department of Justice is required by statute to issue right-to-sue notices to charging parties who file a Title VII complaint against a state or local government entity, but for which DOJ decides not to bring suit, or upon specific request of the charging party.[109] Thus, there are two categories of right-to-sue letters issued by ELS. Category I right-to-sue letters are those issued for charges in which a reasonable cause finding has been made by EEOC and conciliation attempts have failed, but for which ELS determines, after review, no litigation activity is warranted. Category II right-to-sue letters are issued when the EEOC has not finished its investigation, but the charging party and/or the charging party's attorney(s) specifically requests a right-to-sue letter.[110]

As shown in table 8, the number of requests for right-to-sue letters increased from 4,689 in 1995 to 5,331 in 1997 and then tapered off to 2,883 in FY 2000. This spike in right-to-sue requests coincides with years following the 1995 streamlining of EEOC's charge handling procedures and the resulting reduction in backlog. According to the deputy chief responsible for ELS right-to-sue program, Category II letters, those over which the Section has very little discretion, make up the large majority of the total number of right-to-sue letters issued.[111]

ELS managed to absorb the high number of right-to-sue requests between FY 1996 and FY 1998, while at the same time increasing the percentage of right-to-sue letters issued in less than 30 days from 30 percent in FY 1997 to 100 percent in FY 2000.[112] In fact, according to the section chief, the average turnaround time for right-to-sue notices is currently two weeks.[113]

For the past three years, ELS has managed to issue more right-to-sue letters than have been requested, reducing the backlog that once existed.[114] This increase in productivity can be attributed to the revamping of the Right-to-Sue Unit within the Section. The section chief and the head of the unit streamlined the process for issuing letters by creating templates for several different types of right-to-sue notices and hiring full-time students to help with the workload.[115] ELS should now begin tracking, through the Interactive Case Management System, the total amount of Section resources absorbed by this activity to determine, from a management perspective, the productivity of the unit and whether its streamlined process could be replicated in other program areas.

This component of ELS work is mainly measured simply based on input (letters requested) and output (letters issued). While the Commission commends ELS for handling right-to-sue notices with increased efficiency, the Section could better measure the effectiveness of the right-to-sue program by setting goals to justify the resources consumed by this function, besides the obvious legal requirement. For example, ELS could track the number of right-to-sue letters that result in the filing of a private suit; this would be particularly useful for Category I letters that are issued in response to charges for which a reasonable cause finding has already been made. Further, having an active attorney referral program tied in with the issuance of right-to-sue notices would enable recipients of the notices to pursue these cases more frequently.

Outreach, Response to Inquiries, and Employer Assistance

In addition to all of the activities involved in ELS enforcement program, the Section also engages in other tasks related to its mission of Title VII enforcement and the elimination of employment discrimination, such as outreach, responding to citizen inquiries, and providing employers with technical assistance. ELS has only recently begun tracking this work as a component of its enforcement program, but the numbers indicate that this work has the potential to consume substantial resources (see table 9).

ELS conducts outreach activities to educate people about their rights and the services available to them. The Section started formally tracking outreach information in FY 2000; that year, ELS conducted 28 speeches, presentations, and other outreach efforts even though it had only planned to conduct 22.[116] According to internal ELS documents, the Section engaged in significantly fewer outreach activities between 1995 and 1998, when it averaged approximately six such events per year (see table 9).[117] In the past, resources were not allocated for extensive outreach, and staff were not available to carry out many outreach activities. However, under the current section chief, outreach has become an integral component of ELS work. One of the responsibilities of the new fourth deputy chief will be to coordinate outreach and network with other organizations and agencies in an attempt to identify systemic discrimination.[118] ELS plans to increase the number of outreach activities to 30 for FY 2001.[119]

Expanding outreach is a stated goal of the Civil Rights Division, even though no performance measures exist to track ELS progress. According to the acting assistant attorney general for civil rights,

it is tremendously important for the Section to reach out to the universe it addresses, public employers. You know, so much improvement in the state of civil rights can be accomplished by educating people, by making sure that they know the standards that they'll be expected to comply with, by making sure they know how to do it right, simply that they know how to structure a good hiring process that will avoid a disparate impact based on race, and the more we talk to them about that, the less need there is for our litigation.[120]

ELS efforts to expand its presence in the communities it serves have been praised by recipients of outreach initiatives. According to the director of a national employee organization, in the past few years, ELS has been stronger than ever in its outreach efforts, and particular credit is due to the line attorneys who go out in the field to establish relationships with employee groups.[121] One EEOC attorney also believes that his regional office benefited from a technical assistance visit conducted by an ELS attorney. He stated it would benefit ELS to encourage, through training efforts, EEOC offices to produce good referrals, which over time would improve the quality of ELS litigation.[122] It appears that ELS has begun to recognize the importance of training. In February 2000, the section chief sent correspondence to all EEOC regional attorneys notifying them that ELS staff were available for on-site technical assistance visits.[123]

** In the 2002 budget request, this number was recorded as two separate indicators: (1) congressional and controlled mail and (2) citizen inquiries; for this table, the numbers were added together. In FY 2000, ELS began tracking telephone calls, which accounts for the large increase in inquiries. 

Note: N/A indicates that this information was not reported for these years. ELS only began tracking its outreach and review activities in FY 2000.

Sources: U.S. Department of Justice, Civil Rights Division, FY 1998 2002 Congressional Budget Submissions; U.S. Department of Justice, Civil Rights Division, Employment Litigation Section, Speaking Engagements/Conferences/Outreach Efforts, 1995 2000, updated July 24, 2000.

As part of its enforcement program, ELS also responds to citizen and congressional inquiries. Table 9 shows that the number of inquiries received steadily decreased from year to year between 1995 and 1999, from 1,300 to 453. However, in FY 2000, in an attempt to better quantify the Section s actual workload in this area, ELS began tracking telephone inquiries, in addition to written correspondence, and the number quadrupled.[124] ELS responded to 1,711 of the 1,814 inquiries received in FY 2000.[125] From 1995 to 1997, ELS was unable to respond to as many inquiries as it received, resulting in a backlog. The Section appears to have begun addressing this problem, as the number of responses exceeded the number of inquiries in 1998 and 1999; although not in numbers equal to the shortcomings of the earlier years. ELS should establish additional goals that include establishing a timeframe for responses to inquiries, as has been done with right-to-sue notices.

FIGURE 6: ELS Expected and Actual Performance, Fiscal Years 1993 2001

Note: For the FY 1996 target, the FY 1997 budget submission reported it as 1,100; the FY 1998 reported it as 1,000; the FY 1996 budget submission did not include this measure. With regard to the FY 1998 goal, the FY 1999 submission reported an initial one of 1,100, but the current plan was for 89. The FY 2000 plan reported the final planned number for that year as 1,000. For the FY 1999 goal, the FY 1999 submission reported the number as 1,000; the FY 2000 submission reported it as 1,200. The FY 2000 plan reported the final planned number for that year as 400. For the FY 2000 goal, the FY 2000 submission reported the number as 1,200; however, the FY 2001 submission reported an initial plan of 400 and a current planned number of 450.

Source: U.S. Department of Justice, Civil Rights Division, FY 1995 2002 Congressional Budget Submissions. Actual performance was verified with ELS. 

Performance goals for the number of responses made to controlled mail and citizen inquiries have been typically set at 1,000 or 1,100 and have not been achieved (see figure 6). It should be noted, however, that ELS activity in this area is bounded by the number of inquiries it receives, and that number steadily decreased in earlier years. At the same time, ELS has often planned to respond to 200 to 300 fewer inquiries than it anticipated receiving.[126] The FY 2001 expectation was adjusted upward to take account of tracking the telephone inquires.

ELS has also recently started tracking the number of employment selection procedures that it reviews each year on behalf of requesting state or local agencies. During FY 2000, ELS reviewed eight such plans.[127] In FY 2000, the Section also engaged in several discussions with state and local police and fire entities regarding job recruitment criteria and selection procedures (such as pre-employment tests).[128] These activities, while consuming resources, also have the potential to enhance the effectiveness of the Section s enforcement program and thus merit tracking. Therefore, ELS should develop performance measures and goals for the outcomes of the assistance it provides to state and local employers.