[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
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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
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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
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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)