[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
EMPLOYMENT SECTION OF THE CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT 
                               OF JUSTICE

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 25, 2007

                               __________

                           Serial No. 110-91

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov

                                 ______

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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
MAXINE WATERS, California            DANIEL E. LUNGREN, California
WILLIAM D. DELAHUNT, Massachusetts   CHRIS CANNON, Utah
ROBERT WEXLER, Florida               RIC KELLER, Florida
LINDA T. SANCHEZ, California         DARRELL ISSA, California
STEVE COHEN, Tennessee               MIKE PENCE, Indiana
HANK JOHNSON, Georgia                J. RANDY FORBES, Virginia
BETTY SUTTON, Ohio                   STEVE KING, Iowa
LUIS V. GUTIERREZ, Illinois          TOM FEENEY, Florida
BRAD SHERMAN, California             TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
ANTHONY D. WEINER, New York          JIM JORDAN, Ohio
ADAM B. SCHIFF, California
ARTUR DAVIS, Alabama
DEBBIE WASSERMAN SCHULTZ, Florida
KEITH ELLISON, Minnesota

            Perry Apelbaum, Staff Director and Chief Counsel
                 Joseph Gibson, Minority Chief Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

ARTUR DAVIS, Alabama                 TRENT FRANKS, Arizona
DEBBIE WASSERMAN SCHULTZ, Florida    MIKE PENCE, Indiana
KEITH ELLISON, Minnesota             DARRELL ISSA, California
JOHN CONYERS, Jr., Michigan          STEVE KING, Iowa
ROBERT C. SCOTT, Virginia            JIM JORDAN, Ohio
MELVIN L. WATT, North Carolina
STEVE COHEN, Tennessee

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel


                            C O N T E N T S

                              ----------                              

                           SEPTEMBER 25, 2007

                                                                   Page

                           OPENING STATEMENT

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Ranking Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Chairman, Committee on the 
  Judiciary, and Member, Subcommittee on the Constitution, Civil 
  Rights, and Civil Liberties....................................     4
The Honorable Darrell Issa, a Representative in Congress from the 
  State of California, and Member, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     5

                               WITNESSES

Mr. Asheesh Agarwal, Deputy Assistant Attorney General, U.S. 
  Department of Justice, Civil RIghts Division
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
Mr. Richard Ugelow, Practitioner in Residence, Washington College 
  of Law, American University
  Oral Testimony.................................................    28
  Prepared Statement.............................................    30
Ms. Janet Caldero, Beechhurst, NY
  Oral Testimony.................................................    37
  Prepared Statement.............................................    39
Mr. Eric S. Dreiband, Partner, Akin Gump Strauss Hauer & Feld
  Oral Testimony.................................................    40
  Prepared Statement.............................................    42
Ms. Jocelyn Frye, General Counsel, Workplace Fairness Program, 
  National Partnership for Women and Families
  Oral Testimony.................................................    43
  Prepared Statement.............................................    46

               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Jerrold Nadler, a 
  Representative in Congress from the State of New York, and 
  Chairman, Subcommittee on the Constitution, Civil Rights, and 
  Civil Liberties................................................    61
Prepared Statement of the American Civil Liberties Union (ACLU)..    62


EMPLOYMENT SECTION OF THE CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT 
                               OF JUSTICE

                              ----------                              


                      TUESDAY, SEPTEMBER 25, 2007

                  House of Representatives,
                 Subcommittee on the Constitution, 
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 10:05 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Conyers, Nadler, Davis, Ellison, 
Scott, Watt, Franks, Issa, and Jordan.
    Staff present: David Lachmann, Subcommittee Chief of Staff; 
LaShawn Warren, Majority Counsel; Keenan Keller, Majority 
Counsel; Susana Gutierrez, Professional Staff Member; Crystal 
Jezierski, Minority Counsel; and Paul B. Taylor, Minority 
Counsel.
    Mr. Nadler. Good morning. This hearing of the Subcommittee 
on the Constitution, Civil Rights, and Civil Liberties will 
come to order.
    Today's hearing will continue the Subcommittee's oversight 
of the Civil Rights Division of the Department of Justice. 
Today, the Subcommittee will focus on the work of the 
Employment Section of the Civil Rights Division.
    The Chair now recognizes himself for 5 minutes for an 
opening statement.
    Before we begin, I would like to take note of the fact that 
today is the 50th anniversary of the integration of Central 
High School in Little Rock, Arkansas. When those nine brave 
students walked into that school, they made a mark on American 
education and paid tribute to our civil rights. Fifty years 
later, while discrimination has been erased from most of our 
laws, it has yet to be fully achieved in our actions.
    It is partly through the work of this Subcommittee, the 
full Committee and Congress that I hope we can soon see the day 
where equality is found both in our hearts and deeds. Deny an 
otherwise qualified person a job and you deny that person's 
dignity, the ability to feed his or her family, possible health 
insurance and all the necessities that go along with gainful 
employment. Deny someone a job this person has trained for or 
has worked at for many years and you are destroying what might 
be a lifetime of work.
    One of the most important missions of the Department of 
Justice is to protect all Americans against employment 
discrimination on the basis of race, religion, gender, 
disability or natural origin. Hopefully, in the not-too-distant 
future, we will add to that list sexual orientation and gender 
identity, but that is a battle for another day.
    Today, we are concerned with how well the Department of 
Justice is enforcing the present laws. In many other areas, 
this Committee has brought to light decisions made at the 
Department of Justice that seem to have been guided more by 
political considerations than by the merits of an issue. 
Sometimes, it is not so much politics as ideology.
    Today, we will examine a number of cases in which the 
department seems to have gone against established civil rights 
policy or even turned its back on consent decrees to which it 
had committed itself. As in other parts of the department, we 
have received reports of poor morale, departures of career 
staff and political interference with the section's important 
work.
    I am concerned that this pattern may also be present in the 
employment section. The Justice Department's Employment 
Litigation Section is mandated to enforce title VII of the 
Civil Rights Act of 1964 and various other civil rights laws 
that prohibit employment discrimination.
    As challenges to discriminatory employment practices are 
usually factually and legally complex and often take several 
years to litigate, the Justice Department is uniquely 
positioned to lead the charge in those cases.
    The Bush administration, however, has filed only 47 title 
VII cases since 2001. By comparison, the Clinton Administration 
filed 34 cases in its first 2 years and a total of 92 by the 
end of its term. Also, in many cases, the current Justice 
Department has reversed the position taken by all previous 
Administrations in the middle of a case or has opposed 
settlement to which the department had previously been a party. 
One of the witnesses has been a victim of discrimination in 
such a case and will describe her experience.
    Also at issue is the exit of a significant number of career 
lawyers in the section and the hiring of lawyers who have 
little experience in civil rights. There is nothing more un-
American than bigotry. Or maybe we should say that there is 
nothing more typical of history both in America and elsewhere 
than bigotry, but we want to make it very un-American.
    When those charged with fighting discrimination fail to do 
so, the Government provides tacit support for discrimination. 
Discrimination destroys families and tears at the fabric of our 
Nation.
    We are at our strongest as a people when we use the talents 
and abilities of all of our citizens to their fullest extent. 
To that end, the enforcement of our discrimination laws must be 
above partisan and political influence.
    The promise of our Nation's civil rights laws is only met 
when the Justice Department applies them aggressively and in an 
even-handed fashion. We will examine today whether that promise 
is being kept by the current Justice Department.
    I look forward to our witness testimony and I thank you for 
being here to testify.
    I would now recognize our distinguished Ranking minority 
Member, the gentleman from Arizona, Mr. Franks, for his opening 
statement.
    Mr. Franks. Well, thank you, Mr. Chairman, and thank you, 
Mr. Agarwal. I appreciate you being here.
    Among other things, the Employment Litigation Section of 
the Department of Justice enforces against State and local 
government employers the provisions of title VII of the Civil 
Rights Act of 1964 and of other Federal laws prohibiting 
employment practices that discriminate on the grounds of race, 
sex, religion and national origin.
    I look forward to the testimony today as I, like all of us 
here, want to be assured that the employment section is 
adequately enforcing these essential civil rights laws. The 
litigation handled by the section is of national importance, as 
it speaks to the principles that define America's kindness, 
compassion and core essence.
    Its attorneys are to be commended for their tireless 
dedication to enforcing the law, which extends to every corner 
of complex litigation, from investigations to filing motions, 
from settling negotiations to trials, from the monitoring and 
enforcement orders to the securing of remedial relief.
    I am particularly encouraged that the employment section 
appears to be putting forth appropriate resources into the 
prosecution of religious discrimination cases.
    In the United States v. Los Angeles, the Metropolitan 
Transit Authority, for example, the section alleged that the 
MTA was engaged in a ``pattern or practice'' of religious 
discrimination by not reasonably accommodating employees and 
applicants for employment as bus operators, who in accordance 
with their religious beliefs, are unable to work weekends.
    In another religious discrimination suit, the United States 
v. New York Transit Authority, the section alleged that the New 
York authority has engaged in a pattern or practice of 
discrimination against Muslim and similarly situated employees 
who wear religious head coverings by not reasonably 
accommodating their religious beliefs and by selectively 
enforcing its uniform policies.
    Mr. Chairman, religious freedom is at the core foundation 
of all other freedoms, and though America often fails to 
enforce the laws protecting against religious discrimination as 
we should, we still do it better than anyone else in the world. 
And I believe that the even-handed defense of religious 
freedom, across the board of all religious perspectives, is 
vitally important and, again, is at the core of who we are as 
Americans.
    The Employment Section also has enforcement responsibility 
for the Uniformed Service Employment and Reemployment Rights 
Act of 1994. As a Member of the Armed Services Committee, I 
believe it is essential that the employment rights of those who 
serve in the military are protected with as much vigor as our 
men and women in uniform apply in defending all of us.
    The Uniformed Service Act protects veterans of the armed 
services when they seek to resume their jobs upon returning 
from serving the United States in some foreign battlefield or 
otherwise. And it helps guarantee that they will return to 
their civilian positions with the seniority, status, rate of 
pay, health benefits and pension benefits they would have 
received if they had never left.
    I understand that in fiscal year 2006, the Employment 
Section filed four complaints in Federal district court and 
resolved six cases under the law. I look forward to hearing 
about those cases in more detail, and I am pleased to hear that 
the Department of Justice recently launched a Web site for 
service members, www.servicemembers.gov. It explains the rights 
of service members under this law, as well as their rights 
under the Uniform and Overseas Citizen Absentee Voting Act.
    And, with that, I look forward to hearing from all of our 
witnesses in the defense of religious freedom.
    Thank you, Mr. Chairman.
    Mr. Nadler. Thank you. In the interest of proceeding to our 
witnesses and mindful of our busy schedules, I would ask other 
Members to submit their statements for the record.
    Without objection--I will revise that. The Chairman of the 
full Committee will now be recognized.
    Mr. Conyers. Thank you, Mr. Chairman.
    And to the Ranking Member and to my friend from California, 
who joins us on this very important morning, the reason I want 
to use a few minutes to make an opening statement is that we 
have a political deputy assistant, Mr. Agarwal, who we welcome. 
But the person we probably should have had was attorney Kay 
Baldwin.
    And I regret that Mr. Agarwal is going to have to take the 
burden for her, because the department is in pretty bad shape, 
lots of people leaving, lots of people being moved around. But 
the enforcement priorities at the Employment Section have taken 
a dangerous turn.
    We are left to grapple here with allegations of partisan 
politics that have infected both the hiring, the promotion and 
the substantive work of the section. Even the most cursory 
glance at the section's docket, as outlined by the Chairman and 
detailed in written testimony, shows the marked decline that 
Mr. Nadler has referred to in the enforcement of employment 
discrimination laws.
    The only thing I can think of is that this section, like 
the department, thought they would never be oversighted and 
called to be held in account this morning for what is going on 
over there. That is the only thing I can think of that would 
have such a dismal, retrograde record of nonaccomplishment.
    It is absolutely shocking and the Administration has turned 
against parties it formerly assisted and taken directly adverse 
positions in the same litigation.
    Now, while it is important to protect the rights of all 
Americans, I am troubled by this significant decline of title 
VII litigation on behalf of African Americans and Latinos, as 
demonstrated by the docket. Seven cases on behalf of African 
Americans and Latinos, out of 3,200 referrals for prosecution, 
from the employment board.
    This is inexcusable. And over the last decade, there has 
been an assault on progressive enforcement of employment 
discrimination laws. The premise behind the retreat is that 
discrimination in our society has supposedly receded. However, 
any review of the evidence indicates that discrimination 
continues to still be persistent and widespread.
    And while the nature of this discrimination has changed, 
moving from de jure form in the old days, when segregation was 
openly sanctioned, to the more subtle de facto form of the same 
problem in the 21st century.
    If you look at the actual evidence, in critical areas, such 
as employment, housing, education and, most notably, our 
justice system, you see there is an overwhelming evidence of 
ongoing discrimination in our society. With regard to 
employment, the bipartisan Glass Ceiling Commission found that 
nearly all, 95 percent, of the top corporate jobs in America 
are held by White males, with African Americans holding less 
than a percent of top management jobs. Women holding 3 to 5 
percent of senior-level positions.
    Black unemployment has also found to be twice that of White 
unemployment in our national statistics. A recent study in 
which college students posed as job applicants found that a 
White male with a criminal record had better employment 
prospects than a Black man with no record whatsoever.
    The disadvantage carried by a Black man applying for a job 
as a dishwasher or a driver is equivalent to forcing a White 
man to carry an 18-month prison record on his back. The 
American public also has few illusions about employment 
opportunity.
    A Gallup poll asked, do you feel that racial minorities in 
this country have equal job opportunities as Whites, or not? 
Among Whites, the answer was 55 percent yes, among Blacks, the 
answer was 17 percent yes.
    Prior to this Congress, there has been virtually no 
scrutiny of the problem of remedying employment discrimination. 
And so the real question facing the Committee today is how to 
secure an effective role of the department in eliminating the 
underlying causes of employment in the 14 months or so that we 
have left.
    And I will submit the rest of my statement for the record 
and thank the Chairman for his courtesy.
    Mr. Nadler. Thank you.
    In the interest of time, we would encourage other Members 
to submit their statements for the record. But I will recognize 
Mr. Issa, who has requested recognition.
    Mr. Issa. Thank you, Mr. Chairman, and I will be brief.
    I want to associate myself with the Ranking Member, 
particularly on the issue of the most basic of all the 
enforcements that we need done by our Government, and that is 
support of the first amendment, where Congress shall make no 
law respecting the establishment of religion or prohibiting the 
free exercise thereof.
    In fact, we often hear the first amendment talked about in 
terms of freedom of the press, and not in fact the freedom of 
people to practice their religions and to be free from 
employment discrimination for practicing those religions.
    So as we go through this process, I would like to, one, 
associate myself with the Ranking Member and, two, distance 
myself from the Chairman of the Subcommittee, who clearly has 
an agenda, at a time in which the full Committee Chairman says 
we are not doing enough about Latinos and African-Americans, 
meaning we are not doing enough about those who may be 
discriminated based on race--who wants to add sexual 
persuasion, orientation and the like, those which are by no 
means spoken of in the Constitution or by current law.
    So I would encourage this Committee to focus on ensuring 
that those which there is uniform agreement on must be 
enforced--race, religion, national origin, be strictly 
enforced. And until we can get to where this Committee on a 
bipartisan basis believes a good job is being done, we should 
not tread onto territory that is by definition filled with new 
opportunities to fail in enforcement.
    And I thank the Chairman for yielding the time, and I yield 
back.
    Mr. Nadler. I thank the gentleman. I would encourage the 
gentleman to join me and others, then, in getting the 
department the resources to deal with all the discrimination so 
they don't have to choose between religion and racial 
discrimination.
    Without objection, all Members will have 5 legislative days 
to submit opening statements for inclusion in the record. 
Without objection, the Chair will be authorized to declare a 
recess of the hearing. Hopefully we will not do that.
    We will now return to our witnesses. As we ask questions of 
our witnesses, the Chair will recognize Members in the order of 
their seniority in the Subcommittee, alternating between 
majority and minority, provided that the Member is present when 
his or her turn arrives.
    Members who are not present when their turn begins will be 
recognized after the other Members have had the opportunity to 
ask their questions. The Chair reserves the right to 
accommodate a Member who is unavoidably late or only able to be 
with us a short time.
    Our first witness today is Asheesh Agarwal--I hope I 
pronounced that correctly--one of the deputy assistant 
attorneys general who report directly to the head of the Civil 
Rights Division at the Department of Justice's acting assistant 
attorney general, Rena Johnson Comisac.
    Mr. Agarwal is a 1997 graduate of the University of Chicago 
Law School, and we welcome him here today.
    Welcome. Your written statement will be made part of the 
record in its entirety. I would now ask that you summarize your 
testimony in 5 minutes or less. To help you stay within that 
time, there is a timing light at your table. I am sure you are 
aware of that. When 1 minute remains, the light will switch 
from green to yellow and then red, when the 5 minutes are up.
    Before we begin, it is customary for the Committee to swear 
in its witnesses. If you could please stand and raise your 
right hand to take the oath. Do you swear or affirm, under 
penalty of perjury, that the testimony you are about to give is 
true and correct to the best of your knowledge, information and 
belief?
    Mr. Agarwal. I do.
    Mr. Nadler. Let the record show that the witness answered 
in the affirmative. You may be seated.
    Sir?

    TESTIMONY OF ASHEESH AGARWAL, DEPUTY ASSISTANT ATTORNEY 
   GENERAL, U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION

    Mr. Agarwal. Thank you.
    Mr. Chairman, Ranking Member Franks, Members of the 
Subcommittee, it is a pleasure to appear before you to 
represent President Bush, Acting Attorney General Keisler and 
the dedicated professionals of the Employment Litigation 
Section of the Civil Rights Division.
    I am pleased to report that the division continues to 
vigorously combat employment discrimination using all of the 
provisions of title VII on behalf of all Americans. Those 
provisions include both section 707 of title VII, which bars 
employers from engaging in a pattern or practice of 
discrimination and section 706, which bars individual acts of 
discrimination.
    The division has been extremely proactive in using section 
707. Thus far, in fiscal year 2007, we have filed or authorized 
three pattern or practice cases. We also resolved another suit 
under section 707 on behalf of African-American and Hispanic 
employees.
    In fiscal year 2006, we filed three more complaints 
alleging a pattern or practice of employment discrimination and 
obtained settlement agreements or consent decrees in six other 
cases.
    Therefore, in the past 2 years, we have filed six pattern 
or practice cases and resolved seven others under section 707. 
These cases include some very significant ones that have the 
potential to benefit a large number of employees.
    On May 21st, 2007, we filed a title VII lawsuit against the 
largest fire department in the country, the Fire Department of 
New York. Our complaint alleges that the city of New York's use 
of written exams discriminates against Blacks and Hispanics in 
the hiring of entry-level firefighters.
    As outlined in our complaints, FDNY employs 11,000 
uniformed firefighters. However, only about 3 percent of those 
employees and only about 4.5 percent are Hispanic.
    Our suit seeks to force the city to end its discrimination 
against Black and Hispanic firefighter applicants. We also seek 
remedial relief for those firefighter applicants who have been 
harmed by the city's use of the challenge exams.
    We recently obtained such relief in another significant 
lawsuit. On June 8th of this year, the department announced the 
settlement of a lawsuit against the city of Chesapeake, 
Virginia.
    Like the FDNY suit, this lawsuit alleged that the city's 
use of a math exam unlawfully discriminated against Black and 
Hispanic entry-level police officer applicants. Under the terms 
of the settlement agreement, Chesapeake will create a fund to 
provide back pay to African-American and Hispanic applicants 
who were denied employment solely because of the use of the 
math test as a pass-fail screening device.
    The city will also provide priority job offers for African-
Americans and Hispanic applicants who are currently qualified 
for the entry-level police officer job but were screened out 
solely because of their performance on the math test.
    In addition to title VII, the section works closely with 
the Department of Labor to vigorously enforce the Uniform 
Services Employment and Reemployment Rights Act, or USERRA.
    USERRA protects the employment rights of our brave men and 
women serving in the armed forces. In fiscal year 2006, the 
division filed four USERRA complaints in Federal district 
court, including the first USERRA class action complaint ever 
filed by the United States. We also resolved six USERRA cases.
    Thus far, in fiscal year 2007, we have filed five USERRA 
complaints in district court and resolved five other cases. One 
particular case highlights the importance of USERRA.
    In the case McKeage v. Town of Stewartstown, New Hampshire, 
Staff Sergeant Brendon McKeage had been employed as the chief 
of police for the town of Stewartstown. While Staff Sergeant 
McKeage was on active duty in Iraq, the town sent him a letter, 
telling him that he no longer had his job with the town.
    When the citizens of Stewartstown learned that their chief 
of police had been terminated while servicing his country 
abroad, they voted to censure the town for its ``illegal and 
outrageous.''
    Despite this public censure, the town still refused to 
reemploy Staff Sergeant McKeage into his former position. After 
we learned about this case, we notified Stewartstown that we 
intended to sue. Once we did, the town decided to settle the 
case and the settlement terms include a payment to Staff 
Sergeant McKeage of $25,000 in back wages.
    This case, and similar cases, demonstrate the continued 
need for this important statute. As all of these cases 
indicate, the Civil Rights Division has vigorously enforced and 
will continue to vigorously enforce, the provisions of title 
VII and USERRA.
    The division looks forward to continuing to work closely 
and cooperatively with this Committee in its effort to combat 
employment discrimination on behalf of all Americans.
    Thank you, and I look forward to your questions.
    [The prepared statement of Mr. Agarwal follows:]

                 Prepared Statement of Asheesh Agarwal









    Mr. Nadler. Thank you.
    We will start by the Chair granting himself 5 minutes.
    Mr. Agarwal, in the Burlington Northern and Santa Fe 
Railway Company v. White case, the department urged a very 
narrow interpretation of title VII's anti-retaliation 
provisions, contrary to the EEOC's longstanding interpretation.
    Ultimately, when the case went to the Supreme Court, eight 
justices, with the exception only of Justice Alito, rejected 
the department's reading as inconsistent with title VII's plain 
language and its underlying purpose.
    How do you reconcile the department's position in this case 
with the Supreme Court's decision? And what was the basis of 
the department's decision to reject the longstanding EEOC 
interpretation of the scope of the retaliation provision under 
title VII of the Civil Rights Act, the rejection by the 
department, which was then repudiated by the Supreme Court?
    Mr. Agarwal. Thank you, Mr. Chairman. The department 
determined its position through the solicitor general by 
analyzing the statutory language, the case law and the 
legislative history.
    In that case, at the time we filed our brief, six circuit 
courts of appeal, including a majority of all circuit courts of 
appeals that had addressed the issue, agreed with the position 
taken by the department.
    Justice Breyer, in his majority opinion, acknowledged that 
it was a very close case. And Justice Alito, in his concurring 
opinion, noted that it was very difficult to reconcile section 
703 and section 704 of title VII.
    In addition, I would note that the Supreme Court reached 
the same result advocated by the United States, albeit on the 
different grounds.
    Mr. Nadler. But the interpretation stands differently now, 
back where the EEOC had urged it.
    Mr. Agarwal. It is correct, your honor, that the Supreme 
Court decided the case on different grounds than had been 
advocated by the----
    Mr. Nadler. And we are back with the EEOC interpretation as 
preceding?
    Mr. Agarwal. That is correct.
    Mr. Nadler. Thank you.
    During this Administration, the EEOC has referred over 
3,200 cases of discrimination under title VII, yet of these 
cases the DOJ has filed suit in only seven cases. Why so few, 
seven out of 3,200?
    Mr. Agarwal. Thank you, Mr. Chairman. I think you need to 
put those numbers into historical context to fully appreciate 
what they mean.
    During the last 4 years of this Administration, we have 
filed suit on between 1 to 2 percent of EEOC referrals sent to 
us. That is the same percentage as were filed during the last 4 
years of the Clinton administration.
    Mr. Nadler. And yet, as I referenced in my opening 
statement, the number of cases has gone down rather 
drastically.
    Mr. Agarwal. Again, I think to fully appreciate what those 
numbers mean, I would urge the Committee to also look at the 
success rate that the department has had. In our cases, we have 
prevailed in every pattern and practice case, with one 
exception----
    Mr. Nadler. We haven't gotten to pattern and practice yet. 
We are talking about individual cases for the moment.
    Mr. Agarwal. And, again, I think if you put those numbers 
into historical context, we are doing about as much in terms of 
filings as our predecessors. And I would also note----
    Mr. Nadler. Wait a minute. You file 1 to 2 percent 
currently and historically, you are saying, of the referrals by 
the EEOC.
    Mr. Agarwal. That is correct.
    Mr. Nadler. And yet the number of referrals and the number 
of filings has gone down considerably. Given the fact--I mean, 
1 to 2 percent sounds like an awfully low numbers. If the 
number of referrals has gone down--this is essentially what you 
are saying. So it is only 3,200, I don't know what it was 
before, 4,000, let us say, shouldn't you then have the 
resources to up the percentage, to go to 3 percent?
    Mr. Agarwal. I am not sure that it is the resource issue, 
Mr. Chairman. Since joining the division last year, I have made 
it a priority to have the Employment Litigation Section reach 
out to the EEOC to determine if there are ways in which we can 
improve our already-good cooperation.
    One of the first things that I did upon joining the 
division was to reach out to Naomi Earp, who is the chairwoman 
of the EEOC. And during the course of the last year, members of 
the leadership of the section have flown around the country to 
meet with EEOC regional attorneys to determine if there are 
ways----
    Mr. Nadler. Let me ask you one question before going on to 
pattern and practices. Why is it that under this 
Administration, and previous Administrations, only 1 or 2 
percent of cases are filed of the referrals that the EEOC 
thinks are legitimate cases, if it is not a resource question?
    Mr. Agarwal. That is a very good question, Mr. Chairman. 
And I would note that the EEOC itself only brings suit on a 
relatively small percentage of charges that are filed with it.
    Mr. Nadler. But that is not an answer.
    Mr. Agarwal. Not all of the cases in which the EEOC finds 
reasonable cause end up being suit worthy after each 
department----
    Mr. Nadler. Yes, but 1 to 2 percent?
    Mr. Agarwal. Those are what the numbers have been 
historically. And, after further investigation has been done, 
sometimes we find that they are just simply not appropriate.
    Mr. Nadler. Alright.
    My last question is the Employment Section has brought very 
few title VII pattern and practice cases. On average, you filed 
about a third fewer pattern and practice cases than the 
previous Administration each year. Given that employment 
discrimination is still a significant problem, why has the 
number of pattern and practice cases gone down by about a 
third?
    Mr. Agarwal. Again, Mr. Chairman, I would take issue, 
respectfully, with that characterization. We have filed, during 
this Administration, on average two pattern and practice cases 
a year. That is the same average as happened during the last 4 
years of the Clinton administration.
    In addition, we have filed three pattern and practice cases 
within the last fiscal year and six within the last 2 fiscal 
years.
    During the last 3 years of the Clinton Administration, they 
filed three pattern and practice cases, total. So in the last 2 
years, we managed to double that amount.
    Mr. Nadler. We can get back to those statistics later, but 
my time is expired.
    I recognize the Ranking Member of the Subcommittee, Mr. 
Franks.
    Mr. Franks. Well, thank you again, Mr. Chairman.
    And, again, Mr. Agarwal, thank you. I suppose one of the 
dark marks on any nation is the practice of discriminating or 
abrogating of the civil rights of their fellow human beings 
within society. And that is also true of the United States, 
especially since the very core essence on which we were founded 
is that we held certain truths to be self-evident, that all men 
were created--and women--and that this is what made them equal.
    I find the great tragedy, somehow, in civil rights 
discrimination is that somehow the intent is to miss the 
miracle of each human being and somehow to forget that each 
person is a child of God. And what concerns me is that somehow 
we have forgotten, as 2-year-olds understand, they can be a 
colorblind society, they are fascinated by one another's 
differences, but never are they instigated toward 
discrimination or toward diminishing each other on that basis.
    So I guess one of the things that disturbs me a little bit 
is this term, ``reverse discrimination.'' It is a hard one to 
address, but I guess first of all I want to ask a really hard 
thing of you. Can you define reverse discrimination for me?
    Mr. Agarwal. I think as that term has been used, it refers 
to discrimination against White Americans, Caucasians.
    Mr. Franks. Yes, well, I think you are right, obviously, 
but I would maintain that reverse discrimination is kind of a 
misnomer that should be discarded, because, first, it suggests 
that a member of the majority cannot suffer discrimination. Of 
course, that is not true. The chromosomes that one inherits, 
whether Black or White or otherwise, and the percentage of 
similarly born individuals, should not determine the extent of 
one's protection under civil rights laws.
    I know that your office has recognized that. The reason I 
believe that is so important is because if we can truly look at 
this on the basis of a totally colorblind perspective, I think 
therein lies the hope of somehow, someday, making your office 
totally unnecessary. And I hope that we can do that.
    Do you agree, obviously, that all Americans, even those 
that are of a predominant race or religion, should deserve 
equal protection under the law?
    Mr. Agarwal. Absolutely, Ranking Member Franks.
    Mr. Franks. So let me just give you a snowball question 
here and ask you if you could give us an overview of the cases 
that you prosecuted regarding religious discrimination over the 
years.
    Mr. Agarwal. Thank you for that question. We have filed 
four pattern and practice cases alleging religious 
discrimination during this Administration.
    In your opening statement, you referenced our case in Los 
Angeles. I will also tell you a little bit more about our case 
that is pending against the New York Transit Authority.
    In that case, New York had a policy of allowing individuals 
to wear head coverings, turbans, khimars, baseball caps, prior 
to September 11th. After the events of that day, they changed 
their policy to selectively enforce it.
    So after the change in policy, individuals could wear 
baseball caps, for example, but they couldn't wear turbans or 
khimars. And it is our position that they have been unable to 
justify that selective enforcement.
    And we think it is particularly important after the events 
of September 11th to enforce title VII's prohibitions on 
religious discrimination, certainly on behalf of all Americans, 
but in particular on behalf of Muslim Americans.
    Mr. Franks. Are there any emerging trends or patterns that 
seem to be changing in the whole enforcement mechanism? What do 
you see out there as far as trends that you either find 
encouraging or ominous?
    Mr. Agarwal. We are actually very encouraged by the level 
of cooperation we have received from Muslim and Arab groups. We 
have had very good outreach with those groups and we feel like 
we have a very good pipeline of information such that if any 
members of those group feel like they are suffering 
discrimination, they are able to call the Civil Rights Division 
and get a prompt response.
    We have monthly meetings with those groups and we like to 
feel that we are on top of this.
    Mr. Franks. Well, Mr. Agarwal, I guess I would just end 
with sort of a narrative a little bit on the situation we have 
in Guantanamo. I know it seems completely unrelated, but I find 
it unique that in the United States, in a prisoner of war camp, 
that we paint arrows on the floors there at taxpayer expense, 
aiming toward Mecca.
    We have a taxpayer-funded system for the P.A. there, that 
people can have their prayers broadcast five times a day for 20 
minutes. We bring in special food for their religious 
practices. We buy prayer cloth. We buy prayer rug. We buy the 
Koran that can only be held with rubber gloves. We do a great 
deal to try to accommodate religious freedom, and I think that 
is altogether appropriate.
    Because if we forget, as a people, that religious freedom 
is at the core of the rest of our freedoms, then I am afraid we 
will lose them all.
    Thank you, sir.
    Mr. Nadler. Thank you. Before I call on the Chairman of the 
Committee, let me congratulate you on the head covering case 
against the New York Transit Authority.
    But I also ask you, what is a khimar?
    Mr. Agarwal. A khimar is a head covering worn by Sikhs, 
people of Sikh faith.
    Mr. Nadler. Thank you.
    I now recognize the distinguished Chairman of the full 
Committee, Mr. Conyers.
    Mr. Conyers. Well, Mr. Chairman, this is one of the more 
amazing hearings I have ever been before, attended and 
participated in.
    Now, I am being explained by this deputy that not only is 
everything okay, but it is the way it went during the Clinton 
administration, so we should all be proud of the job you are 
doing. I mean, I find this an incredible hearing on that basis.
    I have got one, two, three, four, five--four questions that 
are based on cases that have come out of this section. But 
clearly we are either going to have to have some more meetings 
off the record or informally, not hearings like this where 
there are the 5 minutes back and forth.
    It has been my impression for years that employment 
discrimination has been under-prosecuted, left unattended, 
ignored. And now, on the 25th of September, I am told that 
really, Congressman, wherever you got those impressions, 
everything is really not only okay, but it is like it was 
during Clinton.
    Well, let me tell you something. The Clinton administration 
didn't leave me breathless either, so telling me that you are 
not any worse than they are does nothing for me whatsoever. I 
mean, let me make that very clear.
    So what this hearing devolves around now is either your 
section has been unbeknownst to the Chairman of this Committee, 
been doing a pretty good job, because we are not here to demand 
that you become superlative if you are doing okay. We would 
encourage you.
    But you are telling me that things aren't as bad as most 
people think they are, especially the people who are 
discriminated in this case, that they just don't understand. 
And so far, listening to this hearing, I don't think they are 
going to understand.
    But I have a responsibility to get to the bottom of this, 
and so what I want to suggest is that this Subcommittee and all 
those interested meet with you and all the people in the first 
row, or others, so that we really begin to learn what is really 
coming off here.
    For us to be arguing back and forth and talking about 
reverse discrimination should be analyzed in a color-free 
society, I don't know what zone that takes me out to. But this 
finding of reverse discrimination is just absolutely mind 
blowing.
    I mean, we are now having cases coming forward where White 
people are being racially discriminated against, frequently by 
a minority person themselves. I find all of this totally 
unacceptable.
    I am going to leave you the questions I would have 
presented for you to send back in writing.
    But, Chairman Nadler, we have got to get to the bottom of 
this, and I am not sure if this mechanism--because Members have 
to feel inclined to do their little political defense or attack 
or whatever it is. We do that little dance in nuanced 
terminology.
    But we are in a society where we don't even have a full 
employment system in America. I mean, our country is being 
ravaged by growing numbers of people that, one, don't have a 
job, but growing numbers of people that have a job that are 
afraid they are not going to have a job, not through 
discriminatory practices, but through economic policy.
    We have growing numbers of people that desperately need 
part-time work, and poverty gives way to a lot of social 
maladjustment in our society. Poverty is the source of lots of 
problems.
    Dr. Paul Farmer calls it the pathologies of power, of a 
people that are locked in and can't get out, and we are meeting 
here with a great attitude that our records are great. We are 
working hard as anybody that you have ever seen over there, and 
so we should be happy about it.
    I am very, very dismayed about this, and I propose to meet 
with the Members of this Committee and its Chairman to 
determine how we really do that.
    To tell me that you prosecuted six out of 2,300 cases 
referred for possible prosecution, and say, well, that is as 
good or better than anybody that preceded us, that is not a 
good answer. That is unacceptable to me.
    We are trying to eliminate discrimination based on race or 
sex in this country. And we can't do it by defending in this 
kind of way.
    So I thank you for your kind attention and hope I gain your 
cooperation after this hearing.
    Mr. Agarwal. Absolutely, Congressman.
    Mr. Nadler. Thank you.
    I now recognize for 5 minutes the gentleman from Ohio, Mr. 
Jordan.
    Mr. Jordan. Mr. Chairman, I appreciate it. I am fine at 
this time. I would yield time to my Ranking Member if he would 
like, but if not, I am fine.
    Mr. Nadler. The gentleman yields back. I now recognized the 
gentleman from Alabama for 5 minutes.
    Mr. Davis. Thank you, Mr. Chairman.
    Let me make sure I am pronouncing your name right, sir. Is 
it Agarwal?
    Mr. Agarwal. Agarwal.
    Mr. Davis. Thank you, Mr. Agarwal. Let me pick up where my 
Chairman left off and where the Chair of the Subcommittee left 
off. Let me try to put these numbers in some perspective.
    How many times in the Bush administration era, since 2001, 
has the Civil Rights Division of the Department of Justice 
brought an action against a Fortune 500 company?
    Mr. Agarwal. With respect, Congressman, the Employment 
Litigation Section has jurisdiction over State and local 
employers.
    Mr. Davis. You have no jurisdiction over private employers, 
whatsoever?
    Mr. Agarwal. Our jurisdiction over private employers is 
limited to USERRA.
    Mr. Davis. Okay. I was not aware of that. Well, let me 
shift to another question, then. What about criminal 
prosecutions? What is the most significant criminal prosecution 
that your department has brought, in your opinion?
    Mr. Agarwal. Congressman, we have brought a number of 
criminal matters as part of our cold case initiatives to 
examine civil rights era murders that took place.
    I should note, however, that I don't oversee our criminal 
section, so my knowledge of that area is somewhat limited, with 
apologies, Congressman.
    Mr. Davis. What about voter suppression cases under the 
voting rights division, cases where there is an effort to 
suppress or to thwart someone's capacity to exercise the right 
to vote. Has the department brought a single case that fits 
that category?
    Mr. Agarwal. Again, with respect, Congressman, cases such 
as that would be within the purview--typically would be within 
the purview of our criminal division, and I am just not up to 
speed on those figures.
    Mr. Davis. Well, I think you are the third individual from 
the Administration who has testified in my limited tenure on 
the Committee. And I have asked the voter suppression question 
three times and the answer I have gotten each time has been 
check with somebody in another desk.
    Mr. Agarwal. Congressman, I will be happy to take that 
question back to the department, and we will get an answer for 
you.
    Mr. Davis. Let me pick up another area. One of the 
criticisms that, as you know, have been raised, is that there 
has been some tendency on the part of the department to change 
positions, to have taken one set of decisions and then to have 
changed it, to have decided that, well, we initially thought 
this was an example of discrimination and then to decide, no, 
we no longer think that.
    Let me turn to one case the Supreme Court ruled on 2 years 
ago, Burlington Northern and Santa Fe Railway v. White, 
retaliation case. The issue in the case, as I understand it, is 
the scope of the retaliation clause in title VII.
    You are aware of that case, Mr. Agarwal?
    Mr. Agarwal. Yes, sir.
    Mr. Davis. As I understand it, the Justice Department took 
a narrow interpretation, did it not, of what the retaliation 
clause meant? Is that a fair interpretation?
    Mr. Agarwal. Yes, sir, it is. We took a slightly narrower 
rationale than was adopted by the Supreme Court.
    Mr. Davis. You took a narrower rationale than the EEOC had 
typically adopted.
    Mr. Agarwal. That is correct.
    Mr. Davis. And the Supreme Court ultimately rejected the 
department's position?
    Mr. Agarwal. That is correct. Congressman Davis, as I----
    Mr. Davis. In fact, wasn't it an eight-to-one ruling?
    Mr. Agarwal. That is correct, Congressman.
    Mr. Davis. Slow down for 1 second, because we have a 
limited amount of time, and I want to make sure I pursue this. 
What does that say to you, Mr. Agarwal, that you have 
presumably trained lawyers who are knowledgeable about the 
scope of title VII and the retaliation clause, and your trained 
lawyers came up with a position that eight justices rejected.
    It is not an eight-to-one liberal court. I think it is 
thought anecdotally to be a five-to-four conservative court, 
sometimes six to three on these issues. Who was the one?
    Mr. Agarwal. Justice Alito wrote a concurrence in that 
case.
    Mr. Davis. And he is the new guy. What does it say to you 
that eight justices on a conservative court disagreed with the 
department's interpretation of the retaliation clause in title 
VII.
    Mr. Agarwal. Congressman, at the time the department 
submitted its brief, six circuit courts of appeals, including a 
majority of the circuit courts that had addressed the issue, 
agreed with the position that we ultimately took, including the 
sixth circuit in that case.
    Justice Breyer, in his majority opinion, acknowledged that 
it was a very difficult case.
    Mr. Davis. Well, let me try to put this in some 
perspective, because I think the Chairman used his time wisely 
to make a very broad point, and I will echo that. Some of us 
have the expectation that the Department of Justice seeks to 
thwart racial discrimination against historically discriminated 
against groups.
    I don't think that is a radical perspective on my part, 
that the Department of Justice should seek to thwart 
discrimination against historically disadvantaged groups. I 
think that is the primary aim of title VII.
    I suppose it is true, as Mr. Franks points out--if I could 
just briefly finish, Mr. Chairman--I suppose it is true, as Mr. 
Franks points out, that, sure, there are these reverse 
discrimination cases that emerge.
    But the thrust of title VII has been to alleviate 
discrimination against people who have historically not enjoyed 
the protection of the law. And I think it is troublesome to 
some of us when we see the department take narrow 
interpretations of the retaliation clause, narrow 
interpretations of back-pay provisions in title VII, narrow 
interpretations of equal protection clause. And then when we 
see the department depart from long-settled, longstanding 
interpretations--the last thing I would say to you, Mr. 
Agarwal, we understand that Administrations change hands and 
that your Administration is more conservative than its 
immediate predecessor.
    Some of us believe that there ought to be a core set of 
beliefs that the Department of Justice safeguards, irrespective 
of the ideology of the party that sits in power. And, 
unfortunately, what I think my Chairman was saying is there is 
some sense that this Administration has substituted ideology 
for analysis and that it has bent over backwards to pull back 
the protections in title VII.
    That doesn't compare well with, for example, the Bush I 
administration, 1989 to 1993. Some of us are sitting on this 
Committee--in fact, all three of us to my right, Mr. Watt, Mr. 
Scott and myself, because of interpretations of the Voting 
Rights Act that were reached notably by an expansive 
interpretation adopted by Bush I.
    What we see with this Administration, unfortunately, is a 
tendency to narrow and to truncate these rights instead of 
either taking a traditional view, or, God forbid, a heroic 
view.
    I yield back.
    Mr. Nadler. Thank you. The Chair will now recognize the 
distinguished Ranking Member for 1 minute.
    Mr. Franks. Mr. Chairman, thank you.
    Mr. Chairman, I, in sincere deference to Mr. Davis, I know 
that some of the questions he asked were not hostile in any 
way. However, they were outside the purview of the focus of 
this Committee, since this is on the Employment Litigation 
Section of the office, which is what Mr. Agarwal oversees.
    And I just thought it is important to recognize that he 
really wouldn't be expected to be able to know some of these 
things. But I appreciate his willingness to get an answer for 
Mr. Davis.
    Thank you.
    Mr. Nadler. Thank you, I now yield back--I yield back? I 
yield 5 minutes.
    Mr. Watt. Mr. Chairman, may I just ask a question? Is this 
hearing limited to the Employment Section of civil rights? I 
thought this was a general Civil Rights Division.
    Mr. Nadler. It is concentrated on the Employment Section. 
We have had a different hearing on some of the others. But it 
is open to anything on the division. Of course, Mr. Agarwal is 
only from one part of the division.
    Mr. Watt. I understand that, but did we specify that, or 
the Justice Department----
    Mr. Nadler. Yes, we did. We did in the hearing notice. This 
is concentrating on the Employment Section. We have had a 
previous hearing. We will have additional hearings on the Civil 
Rights Division generally. The division has a number of 
different sections and we are holding a series of hearing.
    The gentleman from Virginia.
    Mr. Scott. Is it Mr. Jordan's turn?
    Mr. Nadler. He has passed.
    Mr. Scott. Okay, thank you.
    Mr. Nadler. The gentleman is recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Agarwal, is your budget sufficient for you to do your 
job, or do you need more money?
    Mr. Agarwal. Our budget is sufficient.
    Mr. Scott. So any shortcomings that you have cannot be 
blamed on Congress failing to appropriately fund your agency?
    Mr. Agarwal. We have no funding complaints, Congressman.
    Mr. Scott. Does your office work on discrimination based on 
military service? Returning Iraqi veterans could look to you 
for help?
    Mr. Agarwal. Absolutely, that is all done under USERRA.
    Mr. Scott. Do you find that many National Guard and 
reservists are having trouble retaining their jobs under the 
various laws that protect them?
    Mr. Agarwal. We have seen such instances, yes.
    Mr. Scott. And what have you done?
    Mr. Agarwal. When the Department of Labor refers a 
complaint to us, if they are unable to reach a settlement with 
the employer, we will then investigate the matter ourselves and 
bring suit if appropriate.
    We have bought 15 lawsuits under USERRA, including the 
first-ever class action brought by the United States under that 
statute.
    Mr. Scott. Are any Federal agencies guilty of failing to 
protect the National Guard and reservists' rights to their 
jobs?
    Mr. Agarwal. Congressman, with respect, that issue falls 
within--I believe it is the Office of Special Counsel. The 
Justice Department Employment Litigation Section does not have 
jurisdiction to sue other parts of the Federal Government.
    Mr. Scott. Thirty-two hundred referrals. Are those all 
Government agencies that are found by EEOC to be 
discriminating?
    Mr. Agarwal. Yes, Congressman.
    Mr. Scott. Do you have the discretion to go after private 
sector employers?
    Mr. Agarwal. Not under title VII, only under USERRA.
    Mr. Scott. Under USERRA you can go after private sector 
employers, pattern and practice or individual cases?
    Mr. Agarwal. Class actions or individual cases, yes, sir.
    Mr. Scott. Have you brought pattern and practice cases 
involving national origin?
    Mr. Agarwal. Yes, sir, we have brought four pattern and 
practice cases on behalf of Blacks and Hispanics.
    Mr. Scott. In your own employment practices, could you tell 
us how many minorities you have who have been hired in the last 
6 years? If you have that information available, if not right 
now, could you provide it for us?
    Mr. Agarwal. I have that information for the last 5 fiscal 
years, Congressman. Within those past 5 fiscal years, 27 
percent of new hires into the division have been minorities. 
That compares to a national average, as found by the ABA, of 
only about 9 percent of attorneys who are minorities, so we 
have managed to triple the average.
    Mr. Scott. And how do you define minorities?
    Mr. Agarwal. That is defined by--there is an ABA study I 
believe from 2004.
    Mr. Scott. Does that include women?
    Mr. Agarwal. I don't believe that it does. No.
    Mr. Scott. And what has happened to the 3,200 referrals, 
minus the handful that you actually pursued? What happens to 
the rest of them?
    Mr. Agarwal. Those charging parties are sent a letter 
informing them that they have the right to bring suit on their 
own by retaining private counsel or a legal aid agency.
    Mr. Scott. What does legal aid agency mean?
    Mr. Agarwal. Some individuals that are unable to afford 
private counsel, we will refer them to a legal aid 
organization.
    Mr. Scott. Legal Services Corporation?
    Mr. Agarwal. Something like that, yes.
    Mr. Scott. And they can bring discrimination cases?
    Mr. Agarwal. Yes.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Nadler. I thank the gentleman.
    And I yield now--the gentleman from North Carolina is 
recognized for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    I guess there is a tendency sometimes for us to kind of 
segment--compartmentalize is what they used to call it when 
President Clinton was in office--into little silos here. But I 
am deeply troubled by something that I don't think is something 
that we can ignore.
    We have had testimony from the attorney general and various 
people in that office about the politicization of hirings of 
U.S. attorneys. And there is a profound article dated July 23, 
2006, in which the ``Boston Globe'' reporter made some 
interesting charges, which I would like to go through with you 
and have you either confirm or refute.
    He said in an acknowledgement of the department's special 
need to be politically neutral, hiring for career jobs in the 
Civil Rights Division under all recent divisions, Democrat and 
Republican, had been handled by civil servant, not political 
appointees.
    But in the fall of 2002, then-Attorney General John 
Ashcroft changed the procedures. The Civil Rights Division 
disbanded the hiring committees made up of veteran career 
lawyers. Are you aware that that happened?
    Mr. Agarwal. Yes, Congressman.
    Mr. Watt. Okay, all right. For decades, such committees 
have screened thousands of resumes, interviewed candidates and 
made recommendations that were only rarely rejected.
    Now, hiring is closely overseen by Bush administration 
political appointees to Justice, effectively turning hundreds 
of career jobs into politically appointed positions. The 
profile of the lawyers being hired has since changed 
dramatically.
    According to the resumes of successful applicants to the 
voting rights, employment litigation and appellate sections. 
Under the Freedom of Information Act, the ``Globe'' obtained 
the resumes among hundreds of pages of hiring data from 2001 to 
2006.
    Hires with traditional civil rights backgrounds, either 
civil rights litigators or members of civil rights groups, have 
plunged. Only 19 of the 45 lawyers hired since 2003 in those 
three sections were experienced in civil rights law. And, of 
those, nine gained their experience either by defending 
employers against discrimination lawsuits or by fighting 
against race-conscious policies.
    Meanwhile, conservative credentials have risen sharply. 
Since 2003, the three sections have hired 11 lawyers who have 
said they were members of the conservative Federalist Society. 
Seven hires in the three sections are listed as members of the 
Republican National Lawyers Association, including two who 
volunteered in the Bush-Cheney campaign. Several new hires work 
for prominent conservatives, including Whitewater prosecutor 
Kevin Starr, Meese, Trent Lott, Pickering, six listed Christian 
organizations that promote socially conservative views.
    The changes in those three sections are echoed in varying 
degrees throughout the Civil Rights Division according to 
current and former staffers. At the same time, the kind of 
cases the Civil Rights Division is bringing has undergone a 
shift.
    The division is bringing fewer voting rights and employment 
cases involving systematic discrimination against African-
Americans and more alleged reverse discrimination against 
Whites and religious discrimination against Christians.
    There has been a sea change in the types of cases brought 
by the division, and that is not likely to change in a new 
Administration because they are hiring people who don't have an 
expressed interest in traditional civil rights enforcement, 
said one former employee.
    Do you have any dispute with anything that I have read 
here?
    Mr. Agarwal. Yes, I do, with respect, Congressman.
    Mr. Watt. Well, I whispered to my colleague on my left 
here, Mr. Scott, that I don't see much--I see some gender 
diversity in this row behind you. But this doesn't look like a 
civil rights litigating section to me. Now, maybe I am just 
stereotyping people.
    Tell me what about this you disagree with. Maybe that would 
be constructive, and give us some numbers on----
    Mr. Nadler. The gentleman's time has expired. The witness--
--
    Mr. Watt.--hiring, and give it to us in writing, if you 
would. But give us whatever you want to say in response to what 
I am saying.
    Mr. Nadler. The witness can respond briefly now and then, 
hopefully, more fully in writing.
    Mr. Agarwal. Sure, a couple of things. First of all, let me 
clarify my answer about the hiring committees. I understand 
that that allegation has been made.
    I wasn't at the department in 2002, so I don't have first-
hand knowledge.
    Mr. Watt. Well, that is part of the problem. There aren't 
any experienced lawyers over there. That is part of the point 
that the article is making.
    Mr. Agarwal. In terms of diversity----
    Mr. Watt. How long have you been there?
    Mr. Agarwal. I have been with the department for 2 years, 
Congressman.
    Mr. Watt. And they sent you over here to testify about what 
is going on in the employment discrimination area.
    Mr. Agarwal. I wasn't happy with that decision either, 
Congressman.
    Mr. Watt. Okay, well, that explains that. You are just as 
unhappy about it as I am, maybe from a different aspect, but at 
least we got some reaction out of you.
    Go ahead. I will shut up and let you explain whatever you 
want to explain.
    Mr. Agarwal. Let me just say with respect to diversity in 
the ranks of the Civil Rights Division, I think we have 
excellent diversity. The head of the Employment Litigation 
Section is a Hispanic individual. He was a first Hispanic----
    Mr. Watt. Give me those numbers in writing. I want to know 
your general reaction to what I just said to you here, which is 
that the drawdown of experienced attorneys doing anything other 
than reverse discrimination cases--is there a staff over there 
who can do traditional civil rights cases?
    Why would we be surprised if the number of cases is 
diminishing if the staff is not even attuned to that kind of 
discrimination?
    Mr. Agarwal. Congressman, until very recently, two of the 
deputy chiefs in the Employment Section were African-Americans. 
One of those deputies left because he accepted a promotion to 
head up another component of the department.
    And, in terms of our cases, we have enforced title VII, all 
of its provisions, on behalf of all Americans. We have brought 
four pattern and practice cases on behalf of African-Americans 
and Hispanics.
    We have brought two cases on behalf of African-Americans--
--
    Mr. Nadler. Mr. Agarwal, the time is expiring, and I wanted 
to let you answer his question, but his question is not about 
how many pattern and practice cases you brought. We went 
through that before.
    His question is about the drawdown. How many attorneys are 
still in the division who have experience bringing these types 
of traditional civil rights cases.
    That is the question, correct?
    Mr. Watt. Well, that is part of it, I guess. Yes.
    Mr. Nadler. And the rest you can answer in writing, but 
answer that please.
    Mr. Agarwal. A number of them. Two of our deputy chiefs, 
including our principal deputy, have been with the Employment 
Litigation Section for decades. They are long-term veterans. 
They oversee----
    Mr. Nadler. And how many such people are left?
    Mr. Agarwal. I don't have an answer as to the average 
length of tenure.
    Mr. Watt. How many of the people sitting behind you have 
been with the department longer than 3 years? Everybody that 
has been with the department longer than 3 years, raise your 
hand, that is, on the front row there.
    Mr. Agarwal. There are four people from the department. Two 
of them----
    Mr. Watt. They can raise their hands.
    If you have been with the department more than 4 years, 
raise your hand.
    Two of about 12 or 13, 14.
    Mr. Agarwal. Four. We have four other people from the 
department here, Congressman.
    Mr. Watt. Where are they? They aren't raising their hands.
    Mr. Nadler. No, he is saying that there are only four other 
people are here from the department. Not everybody there is 
from the department, apparently.
    Mr. Watt. And one of them that did raise their hands was 
legislative affairs, not litigation.
    Mr. Agarwal. She is a valued member of the team.
    Mr. Watt. I appreciate that.
    Mr. Nadler. The time of the gentleman has experienced.
    Mr. Agarwal, you will submit written answers, I assume, to 
the questions.
    Mr. Agarwal. Absolutely.
    Mr. Nadler. The witness is excused.
    Mr. Issa. Mr. Chairman?
    I am sorry, I came back for just this opportunity.
    Mr. Nadler. The gentleman is recognized for 5 minutes.
    Mr. Issa. Thank you, Mr. Chairman, and I will be brief.
    I do find it interesting that the gentleman on the other 
side of the aisle, who wanted, in fact, everyone in your 
department to have less than roughly 2 years experience, 
because they would have had the entire Administration change 
all of you out 2 years ago.
    So I don't think there are any question that the 
continuity----
    Mr. Watt. Would the gentleman yield on that point?
    Mr. Issa. Well, sure, what the heck? I have got all the 
time you have got.
    Mr. Watt. How many of these people are political appointees 
versus career people?
    Mr. Agarwal. Two political appointees.
    Mr. Watt. You see, we are talking about drawing down the 
number of career lawyers----
    Mr. Issa. Thank you, and reclaiming my time.
    Mr. Watt.--not political.
    Mr. Nadler. The gentleman from California controls the 
time.
    Mr. Issa. Thank you, and reclaiming my time, I recognize 
that opportunities exist for attorneys for a lot higher money 
outside of what we pay in Government. In fairness to the 
record, I think if we were asked to have people behind us raise 
their hands and say how long we were able to hold the best and 
brightest attorneys working for us, what a surprise. It is very 
difficult to hold them for a long time, because, in fact, every 
one of them is making a financial sacrifice by working for the 
Federal Government, rather than private practice, every day.
    I do have one area that even though I talked about not 
expanding what we do, but rather doing well what your charter 
is, I do have one question for you, which has to do with 
nonmilitary, private sector discrimination.
    As I understand it, currently, that is the one area that 
you are limited. That falls to the State, that you can 
investigate public employees, but you are limited as to private 
companies' discrimination.
    Mr. Agarwal. The EEOC has jurisdiction over private 
employers under title VII.
    Mr. Issa. Right, and the question I have for you is, when 
we are looking at the most efficient way to broaden the amount 
of investigations, the quality of them and so on, do you think 
the present makeup is correct, knowing that the EEOC 
essentially is an organization that historically gives people 
the right to sue but does very few actual enforcements?
    Mr. Agarwal. That is a very good question, Congressman. 
With respect, I actually haven't given that much thought. We 
have a very good working relationship with the EEOC, but I 
think that is something that we would have to--the best 
allocation, I think that is something we would have to take 
back and really think about.
    Mr. Issa. And I would appreciate it, and I would appreciate 
if you don't mind, responding both to this Committee, and, with 
the indulgence of the Chairman, to the Government Reform and 
Oversight Committee, because that is a critical question I 
think that is the heart of today's hearing.
    I appreciate your telling us what you have accomplished. 
Well, a majority is telling us what may not have been 
accomplished to their satisfaction, but we do have an 
obligation both on this Committee and next door on the 
Government oversight and reform to look for efficiency. What 
are the organizations and personnel that are going to give us 
the highest enforcement of that which we have agreed on a 
bipartisan basis with the signature of at least one President 
at some time to do?
    And I would appreciate, to the extent that you can, take it 
back and try to get us full writings.
    And, with that, Mr. Chairman, I appreciate the indulgence 
and yield back the remaining time.
    Mr. Nadler. I thank you, and I thank the witness.
    You are excused. I would ask the second panel to step 
forward and take your seats.
    While they are taking their seats, I will introduce the 
second panel.
    Professor Richard Ugelow is a veteran of the Department of 
Justice, having served 29 years as a trial attorney in the 
department, and rising to the post of senior trial attorney and 
ultimately deputy section chief in the Employment Litigation 
Section of the Civil Rights Division.
    Before joining the department, Mr. Ugelow served his 
country as a captain in the Army Judge Advocate General Corps. 
Currently, Mr. Ugelow is a member of the faculty at Washington 
College of Law, specializing in employment discrimination 
litigation and clinical legal education.
    Janet Caldero is a custodian in the New York City Public 
Schools. She has been a participating witness in an 
investigation to the New York Board of Education's hiring 
practices for custodians and was a beneficiary of a settlement 
entered into by the Department of Justice and the city of New 
York regarding discrimination in the hiring of school 
custodians.
    Eric Dreiband is a partner in the Washington office of the 
law firm Akin Gump Strauss Hauer and Feld and represents 
companies in civil rights, employment discrimination and wage 
and hour litigation.
    Before joining Akin Gump, Mr. Dreiband served as the 
general counsel to the Equal Employment Opportunity Commission 
and as deputy administrator of the Department of Labor's Wage 
and Hour Division during the administration of President George 
W. Bush.
    Mr. Dreiband also served 3 years as an associate 
independent counsel in the office of Independent Counsel 
Kenneth Starr. He is a graduate of Northwestern University 
School of Law.
    Jocelyn Frye is the general counsel for the National 
Partnership for Women and Families in Washington, D.C. Ms. 
Frye's work covers a wide range of employment discrimination 
and workplace-related issues, including efforts to ensure equal 
enforcement of employment laws.
    She currently directs the national partnership's workplace 
fairness program and in that capacity has worked to address 
employment barriers facing low-income women, including 
obstacles that make it difficult for many women to transition 
from welfare to work. She is a graduate of Harvard Law School.
    Your written statements will be made part of the record in 
their entirety. I would ask that you now summarize your 
testimony, or shortly summarize your testimony, in 5 minutes or 
less.
    To help you stay within that time, there is a timing light 
at your table. When 1 minute remains the light will switch from 
green to yellow and then red, when the 5 minutes are up.
    Before we begin, it is customary for the Committee to swear 
in its witnesses.
    If you could please stand and raise your right hands and 
take the oath? Do you swear or affirm under penalty of perjury 
that the testimony you are about to give is true and correct to 
the best of your knowledge, information and belief?
    Let the record reflect that each of the witness answered in 
the affirmative.
    You may be seated.
    Now, let me state before we begin the testimony, there is 
now a vote on the floor. There are, in fact, four votes on the 
floor, 12 minutes remaining in the first vote. The three 
subsequent votes will be 5-minute votes.
    We will recess for the votes. I ask the Members to return 
as soon as the last vote is called and you have an opportunity 
to vote so that we can resume with the witnesses. I think we 
will get in the testimony of one witness, at least, before we 
have to go to the vote.
    So I will first recognize, in this order, Professor Ugelow.

    TESTIMONY OF RICHARD UGELOW, PRACTITIONER IN RESIDENCE, 
         WASHINGTON COLLEGE OF LAW, AMERICAN UNIVERSITY

    Mr. Ugelow. Good morning, Mr. Chairman and Members of the 
Committee, and thank you for the opportunity to testify today.
    I joined the law faculty at American University following 
29 years as a member of the Employment Litigation Section of 
the Civil Rights Division. I started in the Employment 
Litigation Section in 1973 as a trial attorney, following 4 
years of active duty in the Army's Judge Advocate General 
Corps.
    In 1989, I became deputy section chief in the Employment 
Litigation Section. I served in that capacity until I was 
removed in May 2002 by then-Assistant Attorney General Ralph 
Boyd.
    Today is a most appropriate time to hold a hearing on the 
oversight of the Employment Litigation Section. In just 4 days, 
on September 29, a forum will be held at the Georgetown 
University Law Center, celebrating the 50th anniversary of the 
Civil Rights Division. The successes of the division over the 
last 50 years are indeed worthy of a celebration.
    My testimony today addresses the Civil Rights Division's 
enforcement of title VII of the 1964 Civil Rights Act, an act 
that prohibits discrimination in employment based on race, sex, 
religion and national origin.
    I am deeply saddened to say that this Administration has 
been severely lax in its enforcement of title VII. With a 
little more than one remaining in office, this Bush 
administration has filed only 47 title VII lawsuits.
    By contrast, the Clinton Administration filed 92 lawsuits 
in its 8 years. The Bush I administration filed 81 lawsuits in 
its 4 years. And the Reagan administration filed 99 cases in 
its 8 years in office.
    In particular, this Administration has been derelict in 
using title VII to ensure that African-Americans and Latinos 
are free from employment discrimination. In the first 2 years 
of the George W. Bush administration, a total of seven title 
VII cases were filed, which I submit is virtual non-
enforcement, and likely was interpreted as such by the employer 
community.
    It is also noteworthy that in almost 7 years, the 
employment litigation has filed only three pattern or practice 
or systemic cases that seek to vindicate the rights of African-
Americans. During the same time, the Administration has filed 
two pattern or practice cases alleging reverse discrimination.
    This Administration does not fare any better when looking 
at its use of title VII authority to file suits based upon 
individual charges of discrimination. The Administration has 
filed 10 cases that allege discrimination based upon race, and 
two of those cases were reverse discrimination, or 20 percent 
of the cases were reverse discrimination cases. Not one of 
these cases alleges discrimination against Latinos.
    My review of the section's case filings suggest that 
enforcement efforts have focused on cases raising claims of 
religious discrimination. I do not doubt that these are worthy 
and important cases, and I do not wish to minimize their 
significance.
    However, one must ask if those cases are more or less 
important than acts of discrimination against African-Americans 
and Latinos, and what that says about the department's 
priorities and its use of available resources.
    Try as I might, I cannot find a rational reason for this 
Administration's lack of enforcement. Surely, it cannot be that 
there suddenly has been a reduction in employment 
discrimination in the workplace.
    I can only conclude that this Administration has made a 
conscious decision to reduce enforcement. I leave it to this 
Committee, and others, to determine the rationale for that 
decision.
    I urge Congress to maintain vigorous oversight of the 
Employment Litigation Section and the entire Civil Rights 
Division, in order to ensure that civil rights laws are fairly 
and vigorously enforced.
    Thank you for the opportunity to testify today, and I will 
be pleased to answer any questions you may have.
    [The prepared statement of Mr. Ugelow follows:]

                Prepared Statement of Richard S. Ugelow















    Mr. Nadler. I thank the witness.
    With that, the Subcommittee will stand in recess. All 
Members are asked to return promptly after the last vote, so we 
don't hold the witnesses too long.
    And the Committee is now in recess.
    [Recess.]
    Mr. Davis. [Presiding.] The oversight hearing on the 
Employment Section of the Civil Rights Division of the U.S. 
Department of Justice will come to order. I invite all 
witnesses to retake their seats as the hearing commences. I 
remind all witnesses that their written statements will be made 
part of the record in its entirety.
    And the Chair is informed that the next witness is Janet 
Caldero.
    Ms. Caldero, you may proceed.

           TESTIMONY OF JANET CALDERO, BEECHHURST, NY

    Ms. Caldero. Good afternoon. I would like to thank Chairman 
Conyers, Chairman Nadler, and Ranking Member Franks and 
Congressman Davis for giving me the opportunity to testify 
today.
    My name is Janet Caldero, and I work as a custodian in 
public schools in Queens. In New York City, custodians are 
building managers for public schools. We hire our own staff and 
manage our own budgets.
    These are good-paying, supervisory jobs with civil service 
protections, and I am proud to do the work I do. I am 
especially proud to be one of the very few women in the New 
York City system. I am here today on behalf of all of them, and 
one other fellow female custodian has taken the time to be here 
today with me.
    Before I became a custodian, I had worked in public schools 
for many years, as a secretary and then a handyman. At that 
time, I knew of exactly one woman custodian.
    In a workforce of close to 900, there were fewer than 10 
women holding these jobs. It was hard to break in and learn how 
to get the job if you were an outsider.
    In 1992, I was hired as a provisional custodian. Being 
provisional means that you have no job security. Many of the 
women and minorities who worked as custodians back then were 
hired provisionally.
    When I was hired, I was a single mom with two teenagers at 
home. I needed this job, and I worked hard to get it.
    It was about the time I was hired that the Justice 
Department began to investigate the New York City Board of 
Education's hiring practices for custodians.
    In 1996, after several years of investigation, the Justice 
Department sued the Board of Education. The lawsuit alleged the 
board's hiring practices discriminated against women and 
minorities.
    While the case was in court, I talked to the attorneys for 
the Justice Department many times, as did several of the other 
women and minorities who were working provisionally. I 
understood the Justice Department attorneys to be working on my 
behalf, and on behalf of other women like me, who were working 
hard to succeed in a place where a lot of our male colleagues 
thought we didn't belong. I thought of them as my attorneys.
    In about 2000, I learned that the Justice Department and 
the Board of Education settled the lawsuit, and the Board of 
Education had agreed to extend permanent employment and 
retroactive seniority to women and minorities who had been 
hired provisionally.
    As a result, those of us on the job were more visible, and 
I think this sent a message to other women and minorities that 
they could do this work, as well.
    After these benefits were awarded, a group of White male 
custodians objected and argued that the settlement 
discriminated against them as White men. Then, in 2002, long 
after the Justice Department had signed the settlement, I got a 
call from an American Civil Liberties Union lawyer.
    She told me that the Justice Department had changed its 
position and was no longer defending parts of the settlement in 
the face of the White male custodian attacks, including the 
awards to me and most of the other female beneficiaries.
    I didn't believe her. I had heard nothing from the Justice 
Department. I immediately called the attorney at the Justice 
Department whom I had been working with before. But, instead, I 
was transferred to someone I had never heard of.
    I asked him whether it was true that the Justice Department 
was no longer defending my interest. He said the Justice 
Department was continuing to defend the settlement.
    The attorney from the ACLU sent me a brief the Justice 
Department filed in court that listed the names of the 
beneficiaries it was still defending. Fewer than half of us 
were on that list. I wasn't on it.
    When I called the new Justice Department lawyer, he refused 
to answer any of my questions. The ACLU then entered the case 
representing me and more than 20 other beneficiaries whom the 
Justice Department had abandoned.
    Since 2002, the Justice Department has argued that the 
awards it won for us discriminated against White men, who still 
make up the vast majority of New York school custodians. We 
have had to live with the possibility that we might lose our 
seniority and have our salaries reduced.
    If this happens to me, for instance, I would have to sell 
my home. Those who receive permanent employment have to worry 
about losing their jobs.
    Last year, the trial court ruled against the Justice in a 
large part, but the fight isn't over. The Justice Department 
and the White male custodians will almost certainly appeal, and 
so our uncertainty on the job continues.
    I don't fully understand the legal issues in this case, but 
I do know that it is hard to be a woman custodian because too 
many people feel women can't do the job. The Justice Department 
came to me saying that the United States government wanted to 
change this.
    I trusted the Justice Department and then it betrayed and 
abandoned me and many others. This was unjust and unfair, and I 
hope that no one else ever has to go through this experience. 
The Justice Department needs to honor its commitments. I also 
believe that it should spend its energies fighting on behalf of 
people like me, women and minorities trying to succeed in jobs 
they have long been denied.
    Thank you.
    [The prepared statement of Ms. Caldero follows:]

                  Prepared Statement of Janet Caldero

    Good morning. I'd like to thank Chairman Conyers, Chairman Nadler, 
and Ranking Member Franks for giving me an opportunity to testify 
today.
    My name is Janet Caldero, and I work as a custodian in a public 
school in Queens. In New York City, Custodians are the building 
managers for public schools. We hire our own staff and manage our own 
budgets. These are good-paying supervisory jobs with civil service 
protections, and I am proud to do the work I do. I am especially proud 
to be one of the very few women in New York City doing this work. I am 
here today on their behalf, and one of the other female custodians has 
taken the time to be here with me today.
    Before I became a Custodian, I had worked in public schools for 
many years as a secretary and then a handyman. At that time I knew of 
exactly one woman custodian. In a workforce of close to 900, there were 
fewer than ten women holding these jobs. It was hard to break in and 
learn how to get the job if you were an outsider.
    In 1992, I was hired as a provisional Custodian. Being provisional 
means that you have no job security. Many of the women and minorities 
who worked as Custodians back then were hired provisionally. When I was 
hired, I was a single mom with two teenagers at home. This was a job I 
needed and a job that I worked hard at.
    It was about the time I was hired that the Justice Department began 
to investigate the New York City Board of Education's hiring practices 
for Custodians. In 1996, after several years of investigation, the 
Justice Department sued the Board of Education. The lawsuit alleged the 
Board's hiring practices discriminated against women and minorities.
    While the case was in court, I talked to attorneys for the Justice 
Department many times, as did several of the other women and minorities 
who were working provisionally. I understood the Justice Department 
attorneys to be working on my behalf and on behalf of other women like 
me who were working hard to succeed in a place where a lot of our male 
colleagues thought we didn't belong. I thought of them as my attorneys.
    In about 2000, I learned that the Justice Department and the Board 
of Ed had settled the lawsuit, and the Board of Ed had agreed to extend 
permanent employment and retroactive seniority to women and minorities 
who had been hired provisionally. As a result, those of us on the job 
were more visible, and I think this sent a message to other women and 
minorities that they could do this work too.
    After these benefits were awarded, a group of white male custodians 
objected and argued that the settlement discriminated against them as 
white men.
    Then, in 2002, long after the Justice Department had signed the 
settlement, I got a call from an American Civil Liberties Union lawyer. 
She told me that the Justice Department had changed its position and 
was no longer defending parts of the settlement in the face of the 
white male custodians' attacks, including the awards to me and most of 
the other female beneficiaries. I didn't believe her. I had heard 
nothing from the Justice Department.
    I immediately called the attorney at the Justice Department whom I 
had worked with before. But instead I was transferred to someone I had 
never heard of. I asked him whether it was true that the Justice 
Department was no longer defending my interests. He said the Justice 
Department was continuing to defend the settlement.
    The attorney from the ACLU sent me a brief the Justice Department 
had filed in court that listed the names of the beneficiaries it was 
still defending. Fewer than half of us were on that list. I wasn't on 
it. When I again called the new Justice Department lawyer, he refused 
to answer any of my questions.
    The ACLU then entered the case, representing me and more than 20 
other beneficiaries whom the Justice Department had abandoned. Since 
2002, the Justice Department has argued that the awards it won for us 
discriminate against white men, who still make up the vast majority of 
New York City school custodians. We have had to live with the 
possibility that we might lose our seniority and have our salaries 
reduced. If this happened to me, for instance, I would have to sell my 
home. Those who received permanent employment have worried about losing 
their jobs.
    Last year, the trial court ruled against the Justice Department in 
large part. But this fight isn't over. The Justice Department and the 
white male custodians will almost certainly appeal and so our 
uncertainty on the job continues.
    I don't fully understand the legal issues in this case. But I do 
know that it's hard to be a woman Custodian because too many people 
feel women can't do the job. The Justice Department came to me saying 
that the United States government wanted to change this. I trusted the 
Justice Department, and then it betrayed and abandoned me and many 
others. This was unjust and unfair and I hope that no one else ever has 
to go through this experience. The Justice Department needs to honor 
its commitments. I also believe that it should spend its energy 
fighting on behalf of people like me--women and minorities trying to 
succeed in jobs they have long been denied.

    Mr. Davis. Mrs. Caldero, thank you.
    We proceed to Eric Dreiband.
    You have 5 minutes, Mr. Dreiband.

            TESTIMONY OF ERIC S. DREIBAND, PARTNER, 
                 AKIN GUMP STRAUSS HAUER & FELD

    Mr. Dreiband. Thank you, Representative Davis, Ranking 
Member Franks and Members of the Subcommittee. I thank you and 
the entire Subcommittee for affording me the privilege of 
testifying today.
    My name is Eric Dreiband, and I am a partner at the law 
firm of Akin Gump Strauss Hauer and Feld. Prior to joining Akin 
Gump, in September of 2005, I served as the general counsel of 
the United States Equal Employment Opportunity Commission. As 
general counsel of the EEOC, I directed the Federal 
Government's litigation of the Federal employment 
discrimination laws.
    I also managed approximately 300 attorneys and a national 
litigation docket of about 500 cases a year. The EEOC 
enforcement authority over title VII is plenary, with the 
exception of litigation against public employers.
    Title VII vests the EEOC with independent litigation 
authority against private employers. The employment protections 
of the Americans with Disabilities Act incorporate title VII's 
enforcement scheme and so the EEOC also litigates disability 
discrimination claims. EEOC enforces two other statutes, the 
Equal Pay Act, which prohibits sex-based wage discrimination 
and the Age Discrimination in Employment Act.
    Collectively, then, the Congress has vested the EEOC with 
authority for enforcing a broad array of employment 
discrimination laws, including laws that protect American 
workers against discrimination on the basis of race, color, 
religion, sex, national origin, age and disability.
    I was honored to contribute to the enforcement of the 
Federal civil rights laws when I served at the EEOC. Every 
member of the Administration with whom I worked unambiguously 
and enthusiastically supported the EEOC's efforts to continue 
and improve upon its enforcement programs
    This included officials at the Department of Justice, 
including especially the Civil Rights Division and the Office 
of the Solicitor General. During my tenure at the EEOC, the 
commission continued its tradition of aggressive litigation. We 
obtained relief for thousands of victims of discrimination and 
the EEOC's litigation program recovered more money for victims 
of discrimination than at any other time in the commission's 
history.
    The commission filed hundreds of cases every year and 
recovered literally hundreds of millions of dollars for victims 
of discrimination. Here are some examples.
    In EEOC v. Morgan Stanley, I personally intervened and 
negotiated, with the help of others at the EEOC, a historic $54 
million settlement of a sex discrimination case brought by the 
EEOC on behalf of a class of women who worked for a major Wall 
Street Investment firm.
    We also obtained one of the largest EEOC settlements ever 
in the agribusiness industry. In EEOC versus Rivera Vineyards, 
the commission sued and recovered substantial relief for a 
group of employees, mostly Hispanic women, who were allegedly 
sexually harassed, retaliated against for complaining and 
segregated into certain jobs, based on gender.
    Likewise, in EEOC v. Abercrombie and Fitch, the EEOC 
resolved a nationwide race and sex discrimination case against 
one of the Nation's largest retailers. In that case, the EEOC 
alleged the defendant maintained recruiting and hiring 
practices that excluded minorities and women and adopted a 
restrictive marketing image and other policies that limited 
minority and female employment.
    In EEOC v. Seafarers International Union, I appeared on 
behalf of the commission before the United States Court of 
Appeals for the 4th Circuit and successfully defended the 
EEOC's position that the Federal age discrimination protections 
extend to apprenticeship programs. And as a result of that 
case, workers who are over age 40 and may need training are 
protected against age discrimination.
    And in Supreme Court litigation, the EEOC worked with the 
Civil Rights Division and the solicitor general of the United 
States. In General Dynamics v. Cline, for example, we filed a 
brief on behalf of alleged age discrimination victims.
    Likewise, in Pennsylvania State Police v. Suders, we 
successfully defended the rights of Nancy Drew Suders after she 
claimed that she was the victim of shocking and despicable sex 
discrimination by her employer.
    The commission also worked successfully with the Civil 
Rights Division and the solicitor general in Maldonado v. City 
of Altus, Oklahoma. In the United States Court of Appeals for 
the 10th Circuit, we defended the rights of several individuals 
who asserted claims of race and national origin discrimination 
and the 10th Circuit agreed with us.
    Finally, it is important to remember that the folly and 
disgrace of unlawful discrimination continues to plague our 
Nation. Enforcement of the civil rights laws vest the EEOC and 
the Civil Rights Division with sacred responsibilities that 
speak to the very essence of who we are as a people and who we 
aspire to be.
    It was my professional and personal privilege to serve with 
all of those women and men of the EEOC and the Civil Rights 
Division. These are individuals who have dedicated their lives 
to our continuing struggle to live up to the legacy of Anthony 
Burns, William Lloyd Garrison, Frederick Douglass, Abraham 
Lincoln, Charles Sumner, Susan B. Anthony, Martin Luther King, 
Jr., Everett Dirksen, Roy Wilkins, Evan Kemp, Jr., and 
countless others.
    Mr. Davis. Mr. Dreiband, let me ask you to close. We have a 
very tight time constraint today as we literally have to vacate 
the room, so if you could quickly wrap up.
    Mr. Dreiband. I am finished. Thank you, and I look forward 
to your questions.
    [The prepared statement of Mr. Dreiband follows:]

                 Prepared Statement of Eric S. Dreiband

    Good morning Chairman Conyers, Subcommittee Chairman Nadler, 
Ranking Member Franks, and Members of the Subcommittee. I thank you and 
the entire Subcommittee for affording me the privilege of testifying 
today. I am Eric Dreiband, and I am a partner at the law firm of Akin 
Gump Strauss Hauer & Feld LLP here in Washington, D.C.
    Prior to joining Akin Gump in September 2005, I served as the 
General Counsel of the United States Equal Employment Opportunity 
Commission (``EEOC''). As EEOC General Counsel, I directed the federal 
government's litigation of the federal employment discrimination laws. 
I also managed approximately 300 attorneys and a national litigation 
docket of approximately 500 cases.
    EEOC enforcement authority over Title VII is plenary, with the 
exception of litigation against public employers. Title VII vests the 
EEOC with independent litigation authority against private employers. 
The employment protections of the Americans with Disabilities Act 
incorporate Title VII's enforcement scheme, and so the EEOC also 
litigates disability discrimination claims. EEOC enforces two other 
statutes: the Equal Pay Act, which prohibits sex-based wage 
discrimination, and the Age Discrimination in Employment Act. 
Collectively, then, Congress has vested the EEOC with authority for 
enforcing a broad array of employment discrimination laws, including 
laws that protect American workers against discrimination on the basis 
of race, color, religion, sex, national origin, age, and disability.
    I was honored to contribute to the enforcement of the federal civil 
rights laws when I served at the EEOC. Every member of the 
Administration with whom I worked unambiguously and enthusiastically 
supported the EEOC's efforts to continue and improve upon its 
enforcement programs. This included officials at the Department of 
Justice, including especially the Civil Rights Division and the Office 
of the Solicitor General.
    During my tenure at the EEOC, the Commission continued its 
tradition of aggressive litigation. We obtained relief for thousands of 
victims of discrimination, and the EEOC's litigation program recovered 
more money for victims of discrimination than at any other time in the 
Commission's history. The Commission filed hundreds of cases every year 
and recovered, literally, hundreds of millions of dollars for victims 
of discrimination. Here are some examples:
    In EEOC v. Morgan Stanley, we negotiated a historic $54 million 
settlement of a sex discrimination case brought by the EEOC on behalf 
of a class of women who worked for a major Wall Street investment firm.
    We also obtained one of the largest EEOC settlements ever in the 
agribusiness industry. In EEOC v. Rivera Vineyards, the Commission sued 
and recovered substantial relief for a group of employees, mostly 
Hispanic women, who were allegedly sexually harassed, retaliated 
against for complaining, and segregated into certain jobs based on 
gender.
    Likewise, in EEOC v. Abercrombie & Fitch, the EEOC resolved a 
nationwide race and sex discrimination case against one of the nation's 
largest retailers. In that case, the EEOC alleged that the defendant 
maintained recruiting and hiring practices that excluded minorities and 
women and adopted a restrictive marketing image, and other policies, 
that limited minority and female employment.
    In EEOC v. Seafarers International Union, I personally appeared 
before the United States Court of Appeals for the Fourth Circuit and 
successfully defended the EEOC's position that the federal age 
discrimination protections extend to apprenticeship programs. As a 
result of that case, workers who are over age 40 and may need training 
are protected against age discrimination.
    And, in Supreme Court litigation, the EEOC worked with the Civil 
Rights Division and the Solicitor General of the United States. In 
General Dynamics v. Cline, for example, we filed a brief on behalf of a 
class of alleged age discrimination victims. Likewise, in Pennsylvania 
State Police v. Suders, we successfully defended the rights of Nancy 
Drew Suders after she claimed that she was the victim of shocking and 
despicable sex discrimination by her employer.
    The Commission also worked successfully with the Civil Rights 
Division and the Solicitor General in Maldonado v. City of Altus, 
Oklahoma. We filed the government's brief in the United States Court of 
Appeals for the Tenth Circuit and, in so doing, defended the rights of 
several individuals who asserted claims of race and national origin 
discrimination. The Tenth Circuit agreed with us.
    We also issued the EEOC Regional Attorney's Manual. The Regional 
Attorney's Manual established national standards for the EEOC's 
litigation program.
    Finally, it is important to remember that the folly and disgrace of 
unlawful discrimination continues to plague our nation. Enforcement of 
the civil rights laws vests the EEOC and the Civil Rights Division with 
sacred responsibilities that speak to the very essence of who we are as 
a people, and who we aspire to be. It was my personal and professional 
privilege to serve with all of those women and men of the EEOC and the 
Civil Rights Division who have dedicated their lives to our continuing 
struggle to live up to the legacy of Anthony Burns, William Lloyd 
Garrison, Frederick Douglass, Abraham Lincoln, Charles Sumner, Susan B. 
Anthony, Martin Luther King, Jr., Everett Dirksen, Roy Wilkins, Evan 
Kemp, Jr., and countless others.
    Thank you, and I look forward to your questions.

    Mr. Davis. Thank you, Mr. Dreiband.
    My next witness is Jocelyn Frye. Before you go, Ms. Frye, 
may the Chair inquire if there is any representative of the 
Department of Justice who is here in the hearing room today, 
signaled by a show of a hand?
    May the record reflect that there is no representative of 
the Department of Justice who remains in the hearing room.
    Ms. Frye, you have 5 minutes.

TESTIMONY OF JOCELYN FRYE, GENERAL COUNSEL, WORKPLACE FAIRNESS 
      PROGRAM, NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES

    Ms. Frye. Thank you, Congressman Davis, and in his absence, 
to the Chair and the Ranking Member and the other Members of 
the Committee.
    My name is Jocelyn Frye. I am general counsel at the 
National Partnership for Women and Families. I appreciate the 
opportunity to testify today.
    I know that given the time constraints that we have, I want 
to focus on a series of concerns that we have raised and the 
testimony that I submitted and also some recommendations.
    I first want to start by saying that we are strongly 
committed to the mission of not only the Department of Justice, 
but particularly the work of the Employment Section. From the 
perspective of many advocates, we care deeply about the broad 
mission of ensuring equal employment opportunity and 
eliminating discrimination in the workplace.
    Our view is that the Employment Section should do a number 
of things, but, at a minimum, it should be fully committed to 
vigorous enforcement of employment discrimination laws. It 
should be a strong leader in investigating allegations of job 
discrimination and advance legal arguments in the courts that 
extend maximum protections to victims of discrimination, 
particularly under title VII of the 1964 act.
    Unfortunately, over the last 6.5 years, there are a number 
of concerns that we have had about the direction of the 
Employment Section, and I will lay them out for you. The first 
is a decline in the Employment Section's overall enforcement 
numbers and their litigation numbers.
    As others have mentioned, they are on track to file roughly 
about half of the title VII cases that were filed in the prior 
Administration. Second, there is a concern about perceptions of 
decreased emphasis on cases that have traditionally been 
pursued and have been a high priority. And one example was race 
discrimination cases involving African-Americans.
    I would also add a concern about gender discrimination 
cases, as well. Thirdly, there has been a concern about a fewer 
number of pattern and practice cases, disparate impact cases 
and cases that, as a general matter, are used to uncover 
systemic practices in the workplace that can have larger 
effects on a larger number of employees.
    There are, again, a fewer number of those cases under this 
Administration than the prior Administration. Reversals of 
longtime legal positions in cases and the end result is less 
protection for discrimination victims. And it makes it much 
harder for people to vindicate their rights.
    Allegations of improper political influence in terms of 
attorney hiring and also the decisions, ultimately, that are 
made in the direction of different cases. Lastly is just a 
concern about the lack of leadership and visibility to draw 
attention to the persistence of employment discrimination, the 
legal protections that are available and the obligation of 
public employers to comply with the law.
    There are many components of each one of those concerns, 
but that is the broad summary of the concerns that we have 
raised. In terms of recommendations, I want to offer several 
for the Subcommittee to consider.
    The first is that we believe that this section ought to 
have consistent support for legal interpretations that provide 
maximum protections to discrimination victims. It is essential 
that the Employment Section and the Civil Rights Division, more 
broadly, advance legal arguments that preserve and do not roll 
back the ability of victims of employment discrimination to 
vindicate their rights.
    Increased transparency and accountability--as many of you, 
I am sure, are even more aware than we are, it is very hard 
sometimes just to figure out how many cases this section is 
bringing on a regular basis. And we believe that it is crucial 
to have regular reporting. How many complaints are they filing? 
How many resolutions are there? That type of thing would go a 
long way to ensuring that we have regular accountability of the 
work of the section.
    Thirdly, establishing high goals and priorities--there 
ought to be something that we can measure the success of the 
section by rather than sort of rhetoric. We would love for them 
to have some clear goals and priorities in terms of their 
direction.
    Eliminating improper political influence and the hiring 
process and also case decisionmaking. Allegations of political 
preferences and affiliations that trump solid experience in 
civil rights enforcement when making attorney hiring decisions 
has harmed the stature, morale and ultimately the effectiveness 
of the section.
    Regular oversight hearings like this are crucial. And, 
lastly, leadership and visibility, it is essential that the 
leaders of the Employment Section are viewed as leaders on 
employment discrimination. The Employment Section has a 
critical role to play in preserving, defending and upholding 
rights and protections of critical importance to ensure fair 
treatment in the workplace.
    We believe the section's records over the past 6.5 years 
has fallen short of what is needed to make the promise of equal 
employment opportunity a reality for all workers.
    Thank you for the opportunity this morning.
    [The prepared statement of Ms. Frye follows:]

                 Prepared Statement of Jocelyn C. Frye



















    Mr. Davis. Thank you, Ms. Frye. Let me thank all the 
witnesses for your conciseness, given our time constraints.
    I will begin the questions by recognizing myself for 5 
minutes.
    And, Ms. Frye, if I can again with you, the first witness 
and the first panel today, Mr. Agarwal, from the Justice 
Department made a number of assertions to the effect that this 
Administration's civil rights enforcement record, at least with 
respect to employment cases, was comparable, if not identical, 
to that of the Clinton administration.
    Would you care to comment on that representation?
    Ms. Frye. Well, it is certainly not our understanding of 
their record, just based on a review of the complaints that we 
have access to on their Web site. And I first want to concur 
with the comment that I believe the Chair of the Committee 
made, Mr. Conyers, which is this also has to be understood in a 
broader context.
    The Clinton administration wasn't necessarily the high 
water mark when it comes to employment discrimination cases 
generally, but it is certainly a measure that we want to use. 
But when you look at the numbers overall in this 
Administration, they have fallen well short of the Clinton 
administration.
    When you look at title VII complaints overall, again, they 
are roughly about half of where the Clinton administration was 
on track to do, maybe 45, maybe close to 50, but that is 
roughly half of where the Clinton administration was.
    If you look at pattern and practice cases, again, they are 
on track to do about half. They have done 13 thus far. What is 
of most concern is that when you look at some of the areas 
where they have traditionally focused, discrimination against 
African-Americans, they have four.
    The first case that was initiated by the Employment Section 
actually wasn't brought until last year. They have two that are 
pattern and practice cases involving women. They have the same 
number involving discrimination against women as they have 
against men.
    Those numbers, again, are quite low. We are looking at the 
big picture, and over 6.5 years, the record just doesn't 
reflect the level that we would think that they ought to be at.
    Mr. Davis. Ms. Frye, let me pick up on that. As someone who 
is knowledgeable in the area of civil rights employment law, do 
you have any empirical reason to believe that there has somehow 
been dramatically less discrimination in the last 6 years than 
there was under the Clinton administration?
    Ms. Frye. No. I certainly don't have any evidence like 
that. And if you look at the Equal Employment Opportunity 
Commission, where they receive charges of discrimination, they 
receive thousands of charges a year. And while not all of those 
are meritorious, certainly a good percentage are.
    Mr. Davis. The private filings with EEOC I take it are 
roughly consistent during the last 6-year period with the 
decade before that, which would suggest there has not been drop 
off of as a systemic matter in discrimination claims in this 
country.
    You would agree?
    Ms. Frye. I would agree.
    Mr. Davis. Let me turn to you, Mr. Dreiband. You talked 
very eloquently about the historic mission of the Department of 
Justice. Give me some perspective on that.
    What conclusion do you make when you hear Ms. Frye talk 
about a pattern of less enforcement than before, when you hear 
Ms. Frye talk about a pattern of changing position, changing 
the size of the Justice Department tends to back in these 
cases. What does that say to you about this Administration's 
commitment to the historic mission of the Department of 
Justice, if you could be very brief?
    Mr. Dreiband. Well, what Ms. Frye described is not what I 
experienced as a member of the Administration. I mean, I was 
appointed by the President to serve as the EEOC general 
counsel, and I found an unwavering commitment to fair and 
effective and aggressive enforcement of the civil rights laws.
    Mr. Davis. Do the numbers mean anything to you? What do the 
numbers suggest?
    Mr. Dreiband. Well, I mean, I am familiar with the numbers 
at the EEOC, and all of those numbers were much higher during 
my tenure as general counsel than they were during the previous 
Administration, including number of title VII lawsuits filed, a 
lot more money recovered under our tenure, than under our 
predecessors.
    We set records for recovery. Through the EEOC's litigation 
program, recovered literally hundreds of millions of dollars. 
And in the Civil Rights Division, my dealings with people there 
were always professional, cordial and reflected a commitment to 
effective law enforcement.
    So with regard to the particular numbers, I am not as 
familiar as Ms. Frye is with the number of cases, for example, 
Civil Rights Division has filed. I do know that in my dealings 
with them they always expressed to me----
    Mr. Davis. Are the numbers relevant to you, Mr. Dreiband? 
Ms. Frye put a lot of stock I the numbers, the fact that she 
ticked off three or four categories where there is a 
significant numerical decline in the cases brought by this 
Justice Department and those brought by the previous ones. And 
what I am trying to press you on is what do those numbers mean 
to you? How do you explain that drop in numbers?
    Would it be your position that there has been a drop in the 
amount of acts of discrimination somehow that have occurred in 
the last 6 years? Any empirical basis to believe that?
    Mr. Dreiband. Well, I didn't see any kind of drop off in 
terms of the charge filing data that we had at the EEOC, nor 
did I see at EEOC any kind of reduction in number of lawsuits, 
in fact, the opposite. We brought more cases at the EEOC.
    Now, at the Justice Department, I didn't review their 
files.
    Mr. Davis. Let me cut you off simply because of time 
constraints.
    Ms. Caldero, I will ask you just one quick question before 
I turn to the Ranking Member. As a private litigant, what did 
it say to you, if you can be extremely brief, what did it say 
to you as a litigant when the Justice Department changed sides 
in your case?
    Ms. Caldero. I felt that they acted very unprofessional, 
and I felt betrayed by them, that they didn't stand up for the 
settlement agreement like they had told us that they would.
    Mr. Davis. Did it cause you to question the department's 
commitment to equal justice.
    Ms. Caldero. Absolutely. The other female custodians and 
myself, we look at them now as the injustice department, not 
the Justice Department.
    Mr. Davis. I turn now to the Ranking Member for 5 minutes.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Mr. Chairman, I think if it is all right, I am going to 
address Mr. Dreiband and ask him kind of along some of the same 
line of questions that you were asking.
    We have heard some conflicting testimony today, and I quite 
honestly and sincerely don't know which is correct, so let me 
give this to you in a two-part question.
    Some of the testimony here has indicated that there has 
been a drop in racial discrimination and an increase in cases 
intervened on based on religious discrimination. And my first 
question is, do you think that is true?
    And, number two, along the lines that the Chairman 
mentioned, do you think that there is any difference or any 
trend in society where there is any trend, downtrend, toward 
the racial discrimination and uptick in religious 
discrimination?
    Mr. Dreiband. Well, with regard to religious 
discrimination, certainly the EEOC has seen an increase in the 
number of religious discrimination charges filed with the EEOC. 
And so as a result one could envision more religious 
discrimination lawsuits being filed both by private litigants 
and by the EEOC and the Justice Department.
    That could explain what apparently is the different numbers 
that people have talked about. I am not personally familiar 
with the Justice Department's statistical record with regard to 
religious versus race discrimination claims. But I do know, as 
I say, that there has certainly been an increase in the number 
of religious discrimination charges.
    I know at EEOC, for example, we filed, when I was general 
counsel, hundreds of title VII cases a year alleging race 
discrimination, as well as religious discrimination. And we 
brought lawsuits without fear or favor to any defendant or 
without regard to the type of discrimination we encountered.
    Our goal and the efforts we undertook was to eradicate 
unlawful discrimination where we found it, of whatever kind.
    Mr. Franks. So is it your testimony, Mr. Dreiband, that the 
trends, whatever they may be, are more reflective of the cases 
filed with the EEOC? And, secondarily, in overall numbers, it 
is also your testimony that in terms of the previous 
Administration that your enforcement numbers have been up, 
rather than down. Is that correct?
    Mr. Dreiband. Well, that is certainly true with regard to 
the EEOC's litigation program, yes. The EEOC has filed more 
title VII cases under this Administration, recovered more money 
for victims of discrimination under this Administration than 
the EEOC did under the previous Administration.
    With regard to charges, it is important I think to note 
that the EEOC receives charges from individuals all over the 
United States and, as those numbers change, we do see a trend 
at times with the outcome being more types of lawsuits 
reflecting the types of charges that the commission receives.
    Mr. Franks. Thank you, sir.
    Professor Ugelow, in your testimony, I was curious, do you 
assert that the section is disregarding the laws it is mandated 
to enforce or really simply pursuing what might be reasonable 
interpretations that you disagree with?
    Mr. Ugelow. Oh, I think they are ignoring litigation 
against African-Americans----
    Mr. Franks. You think they are disregarding the laws. Is 
that correct?
    Mr. Ugelow. I don't think they are enforcing the laws 
fairly and vigorously.
    Mr. Franks. Okay, let me go ahead and follow up. The 
division and the section have been criticized, as you know, in 
some quarters, certainly even here today, for initiating 
actions where the alleged victims were either White or 
Christian or men. And do you agree that the division deserves 
the criticism and, if so, help me understand why you think they 
understand the criticism in that regard.
    Mr. Ugelow. Well, implicit in your question is if we do one 
type of case, we can't do another type of case. And I don't 
think that that is correct. You can do religious discrimination 
cases without ignoring cases involving Latinos and African-
Americans.
    And my contention to you, Congressman, is that the section 
has deliberately reduced its enforcement of the civil rights 
laws as they affect African-Americans and Latinos. It is not 
either-or. Religious discrimination cases are important. We can 
all agree on that.
    But there ought to be vigorous enforcement across the 
board. And if you look at the numbers, where the section has 
filed 47 cases in almost 7 years in office, that is below what 
the 3 prior Administrations filed. So something is going on. 
They are not doing something.
    It is the same staff, the same number of attorneys, same 
number of support staff, but they are not doing their job.
    Mr. Franks. And, Ms. Frye, let me turn that question to 
you.
    Do you think that the division has been fairly criticized 
for bringing these cases where the victims were either White or 
Christian or men? Do you think that there is a fair criticism 
there for them bringing and initiating those actions, and, if 
so, why?
    Mr. Davis. And, Ms. Frye, the gentleman's time has expired 
with that question. You can answer the question, given our time 
constraints.
    Mr. Franks. Thank you, Mr. Chairman.
    Ms. Frye. I want to be clear. I don't think that anybody 
criticizes the department, I certainly don't mean to, for 
bringing legitimate cases of discrimination, regardless of who 
it involves, whether it is a White male or a person because of 
their religious belief.
    That is not really the concern. It is a broader concern 
about what the docket looks like overall. And the reality is 
that since the inception of the division, and I think it is 
also the case that since the beginning of the EEOC, the largest 
number of complaints that they see are race discrimination 
cases, followed by sex discrimination.
    And when you look at their record now, the reality is that 
there have been a significant drop off in the number of cases 
involving African-Americans and Latinos and women. And that is 
a concern.
    Mr. Davis. Ms. Frye, thank you.
    On behalf of the Subcommittee, the Chair notes that no 
other Members on either side are present, and we thank on 
behalf of the Subcommittee the Ranking Member. And I thank all 
of our witnesses for appearing here today and for your 
testimony. I apologize to you that we had unexpected time 
constraints in the form of votes, and expected time constraints 
in the nature of the fact that we have to vacate the room to 
prepare for another hearing. But we thank you for your 
patience.
    Without objection, all Members have 5 legislative days to 
submit to the Chair additional written questions for the 
witnesses, which we will forward and ask the witnesses to 
respond as promptly as you can so that your answers are made 
part of the record.
    Without objection, all Members will have 5 legislative days 
to revise and extend their remarks and submit any additional 
materials for inclusion in the record.
    And, with that, the hearing into oversight of the 
Employment Section of the Civil Rights Division of the U.S. 
Department of Justice is adjourned.
    [Whereupon, at 12:47 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 
Congress from the State of New York, and Chairman, Subcommittee on the 
            Constitution, Civil Rights, and Civil Liberties
    Before we begin today, I would like to take note of the fact that 
today is the 50th anniversary of the integration of Central High School 
in Little Rock, AR. When those nine brave students walked into that 
school, they made a mark on American education and paid tribute to our 
civil rights. Fifty years later, while discrimination has been erased 
from most of our laws, it has yet to be fully achieved in our actions. 
It is through the work of this Subcommittee, the full Committee and 
Congress that I hope we can soon see the day where ``equality'' is 
found in both our hearts and deeds.
    Deny an otherwise qualified person a job, and you deny that person 
dignity, the ability to feed his or her family, possibly health 
insurance and all the necessities that go along with gainful 
employment. Deny someone a job that person has trained for, or has 
worked at, for many years, and you are destroying what might be a 
lifetime of work.
    One of the most important missions of the Department of Justice is 
to protect all Americans against employment discrimination on the basis 
of race, religion, gender, disability or national origin. Hopefully, in 
the not too distant future, that list will include sexual orientation 
and gender identity, but that is a battle for another day.
    Today we are concerned with how well the Department of Justice is 
enforcing the law.
    In many other areas, this Committee has brought to light decisions 
made at the Department of Justice that have been guided more by 
political considerations than by the merits of an issue. Sometimes, it 
is not so much politics as it is ideology.
    Today we will examine a number of cases in which the Department 
seems to have gone against established civil rights policy, or even 
turned its back on consent decrees to which it had committed itself. As 
in other parts of the Department, we have received reports of poor 
morale, departures of career staff, and political interference with the 
Section's important work. I am concerned that this pattern may also be 
present in the Employment Section.
    The Justice Department's Employment Litigation Section is mandated 
to enforce Title VII of the Civil Rights Act of 1964 and various other 
civil rights laws that prohibit employment discrimination. As 
challenges to discriminatory employment practices are usually factually 
and legally complex, and often take several years to litigate, the 
Justice Department is uniquely positioned to lead the charge in those 
cases.
    The Bush Administration, however, has filed only 47 Title VII cases 
since 2001. By comparison, the Clinton Administration filed 34 cases in 
its first two years and a total of 92 by the end of its term. Also, in 
many cases, the Bush Administration has reversed the position taken by 
about all pervious administrations in the middle of a case, or has 
opposed settlements to which it had previously been a party. One of the 
witnesses has been a victim of discrimination in such a case and will 
describe her experiences.
    Also at issue is the exit of a significant numbers of career 
lawyers in the Section and the hiring of lawyers who have little 
experience in civil rights.
    There is nothing more Un-American than bigotry. When those charged 
with fighting discrimination fail to do so, the government provides 
tacit support for discrimination. Discrimination destroys families and 
tears at the fabric of our nation. We are at our strongest as a people 
when we use the talents and abilities of all our citizens to their 
fullest extent. To that end, the enforcement of our discrimination laws 
must be above partisan and political influence. The promise of our 
nation's civil rights laws is only met when the Justice Department 
applies them aggressively and in an even-handed fashion. We will 
examine today whether that promise is being honored by the current 
Justice Department.
    I look forward to our witnesses' testimony and I thank you for 
being here to testify.

                                

    Prepared Statement of the American Civil Liberties Union (ACLU)



















                                 
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