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 6

Findings and Recommendations




  1. 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.

  2. 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.




  1. 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.




  1. 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.

  2. 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.

  3. 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.

  4. 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.




  1. 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.

  2. 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.

  3. 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.




  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.




  1. 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.




  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.




  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.




  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.




  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. In order to avoid an unnecessary duplication of efforts between ELS and the Department of Labor with respect to cases against state employment agencies, the Commission encourages the two agencies to coordinate their efforts. For instance, ELS could augment the Labor Department’s monitoring efforts by further monitoring the referrals made by state agencies and determining if there are indications that employees are being steered into certain positions. ELS also could perform random reviews of job assignments, as compared with the race, national origin, and gender of job applicants. Unless ELS can justify a unique role that is not currently served by the Labor Department, responsibilities for this area of enforcement should be transferred to that department.