Federal Efforts to Eradicate Employment Discrimination in State and Local Governments: An Assessment of the U.S. Department of Justice’s Employment Litigation Section

Glossary of Enforcement Terms

Adarand v. Pena—Case challenging as unconstitutional the use of race-based incentives in federal contracting.

Authorized Suits—Cases that have been recommended by ELS and then approved by the Assistant Attorney General for Civil Rights.

Class-based Discrimination—See class-based animus.

Class-based Animus—A prejudicial disposition toward a discernible and usually constitutionally or statutorily protected group of persons.

Class Actions—A lawsuit in which a single person or small group of people represents the interest of a larger group.

Compliance Monitoring—Once a case has been resolved through settlement or judicial decree, there is a period in which ELS must check on the progress of the settlement agreement to ensure that all the provisions of the agreement are being followed.

Consent Decree—When a court case has been filed, the parties can resolve the case short of having a trial by entering into a joint agreement or by consenting to a judgment.

Court Order—Decrees from courts that direct the parties to engage in specific acts and which direct a specific course of action.

Defensive Work—ELS participates in lawsuits that have been filed to challenge employment policies and practices of federal agencies. These are called defensive cases because the United States or a federal agency is named as a defendant or because the Section has moved to intervene as a defendant. Additionally, issues that have not been filed in court but which raise similar issues are called matters and together defensive cases and defensive matters constitute defensive work.

Discovery—Phase of a case in which the litigants perform intensive fact-finding to determine if there exists evidence of discrimination sufficient to proceed with the case or matter.

Disparate Impact—The adverse effect of a facially neutral practice that nonetheless discriminates against persons because of their race, sex, national origin, age, or disability and that has not been shown to be job related and consistent with business necessity. Discriminatory intent is irrelevant in a disparate-impact claim.

Employment Selection Procedures—Many state and local governments use tests and other tools to select potential employees. These various methods are referred to as employment selection procedures.

EEO-4 Data—EEOC is required to collect and track data regarding state and local government employers. This information is collected biennially during even-numbered years.

EE0-5 Data—EEOC is required to collect and track data regarding elementary and secondary public school systems. This information is collected biennially during even-numbered years.

EEOC Referrals—Pursuant to Section 706 of Title VII of the Civil Rights Act of 1964, as amended, the Equal Employment Opportunity Commission is required by law to refer to the Department of Justice charges of discrimination against state and local governments on which the EEOC has issued a determination finding reasonable cause to believe a violation of the statute has occurred and conciliation is unsuccessful.

Equitable/Injunctive Relief—When the court finds that the respondent has engaged in or is engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees or any other equitable relief as the court deems appropriate.

Litigation Support—Refers to all activities designed to prepare a team of lawyers to try a case, which includes interviewing witnesses, document review, and case preparation.

Matters—Matters are those civil rights related issues that have not risen to the level of actual cases, but which still consume ELS resources and which have the ability to be converted into cases. A case is defined as an activity that has been assigned an identification number and which has been reviewed by the ELS and ultimately approved by the Attorney General and then filed in court.

Pattern or Practice Suits—When reasonable grounds infer that individual hiring decisions were made pursuit to a discriminatory policy, the proof of a pattern or practice thus supports an inference that any employment decision made during the period in which the discriminatory policy was in force was made in pursuit of that policy. A pattern or practice suit proceeds when the data establish pervasive illegal motivation. The individual class member who proves that he applied or was deterred from applying is presumptively entitled to an individual remedy. The employer’s burden is to establish a lawful justification for not hiring the individual applicant.

Preliminary Investigation—Section 707 of Title VII of the Civil Rights Act of 1964 authorizes the Attorney General to self-start investigations of pattern or practice discrimination. To determine if a pattern or practice of discrimination potentially exists, ELS conducts a preliminary investigation into the matter or related matters.

Right-to-Sue—Right of the charging party to bring a private action within 90 days of receiving notice from EEOC or the Department of Justice that the federal agency is not pursuing the case.

Right-to-Sue Notice—Title VII requires that charging parties receive notices of right to sue before commencing private litigation. ELS is responsible for issuing such notices when the charge involves a state or local governmental employer.

Section 706—Section 706 of the Civil Rights Act of 1964 requires that the Equal Employment Opportunity Commission refer to the Department of Justice all charges of discrimination against state and local governments for which the EEOC has found reasonable cause to believe a violation of the statute has occurred and conciliation has been unsuccessful.

Section 707—Section 707 of the Civil Rights Act of 1964 authorizes the Attorney General to exercise self-starting authority to investigate and ultimately file suits alleging pattern or practice discrimination against state and local governments.

Section 709—Section 709 of the Civil Rights Act of 1964 requires that the Department of Justice bring suit to enforce the reporting provisions of Title VII with respect to state and local governments.

Settlement—An agreement ending a dispute or lawsuit.

Statistical Targeting—ELS’ primary method for identifying systemic cases is through analysis of Census data and EE0-4 data to determine if there are irregularities in employee selection in various industries as compared with the total population.

Subpoena Power—The ability of an agency to require an agency or employee of an agency to appear in a court or send evidence that can be used to resolve a case or matter.

Supplemental Investigation—Once ELS has received a charge referral from EEOC and it is determined that the matter potentially warrants suit by the Department of Justice, the Section Chief will authorize a supplemental investigation.

Title VII of the Civil Rights Act of 1964, as amended—Title VII prohibits discrimination in employment on the basis of race, sex, national origin, and religion. It also is unlawful under the act for an employer to take retaliatory action against any individual for opposing employment practices made unlawful by Title VII or for filing a discrimination charge or for testifying or assisting or participating in an investigation, proceeding, or hearing under Title VII. It established the U.S. Equal Employment Opportunity Commission to enforce the law through investigation and conciliation, and authorized the Department of Justice to bring lawsuits alleging violations of Title VII. When Title VII was amended in 1972 it divided the responsibilities for litigating cases between EEOC, which can file suit in the private sector, and the Department of Justice, which can file suit against state and local employers.