Hearing of the House Judiciary Committee - Oversight Hearing on the Employment Section of the Civil Rights Division of the U.S. Department of Justice

Interview

Oversight Hearing on the Employment Section of the Civil Rights Division of the U.S. Department of Justice. (Panel 1)

REP. NADLER: (Strikes gavel.) 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 five 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 the Subcommittee, the full Committee and Congress that I hope we can soon see the day where quality is found both in 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, possible health insurance, and all the necessities that go along with gainful employment. Deny someone a job the 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, and -- or national origin. Hopefully, in the not-too-distant future, that list -- 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 law. 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 takes 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 current Justice Department has reversed the position taken by all previous administrations, in the middle of a case, or has opposed settlements 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 experiences. 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 that bigotry. When those charged -- or maybe we should say that there's 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 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 Department -- 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.

REP. 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 religious and racial discrimination.

Without objection, all members will have five 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 on the subcommittee, alternating between majority and minority, provided that the members 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've 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, 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 five minutes or less. To help you stay within that time limit, there's a timing light at your table -- and I'm sure you're aware of that, when one minute remains, the light will switch from green to yellow, and then red when the five minutes are up.

Before we begin, it's customary for the committee to swear in its witnesses.

(The witness is sworn in.)

REP. NADLER: Let the record reflect that the witness answered to the affirmative. You may be seated.

MR. AGARWAL: Thank you Mr. Chairman, ranking member Franks, members of the subcommittee. It is 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 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 file 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 two 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 21, 2007, we filed a Title VII lawsuit against the largest fire department in the country, in 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 complaint, FDNY employs 11,000 uniformed firefighters. However, only about three percent of those employees are black, and only about 4.5 percent are Hispanic. Our suit seeks to force the city to end this 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 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 city's use of the math test as a pass/fail screening device. The city will also provide priority job offers for African American 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 Uniformed 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 of McKeage versus Town of Stewartstown, New Hampshire, staff sergeant Brendan 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 serving his country abroad, they voted to censure the town for its, quote, "illegal and outrageous conduct."

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.

REP. NADLER: Thank you.

We'll start by the chair granting himself five minutes.

Mr. Agarwal, in the Burlington Northern and Santa Fe Railway Company versus White case, the department urged a very narrow interpretation of Title VII's anti-retaliation provision, contrary to the EEOC's long-standing interpretation. Ultimately, when the case went to the Supreme Court, eight justices, including Justice -- excuse me, with the exception only of Justice Alito -- rejected the department's reading as inconsistent with Title VII's plain language and its underlying purposes.

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 long-standing 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 caselaw under that 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. Jusice 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 different grounds.

REP. NADLER: But the interpretation stands differently now, back where the EEOC left it -- 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 --

REP. NADLER: And we're back with the EEOC interpretation as preceding?

MR. AGARWAL: That's correct.

REP. NADLER: 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 if you look -- I think you need to put those numbers into historical context to fully appreciate what they mean. During the last four years of this administration, we have filed suit on between one to two percent of EEOC referrals sent to us. That is the same percentage as were filed during the last four years of the Clinton administration.

REP. 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.

REP. NADLER: I haven't gotten to pattern and practice here; we're talking about individual cases for the moment.

MR. AGARWAL: And again, I think if you put those numbers into historical context, we're doing about as much in terms of filings as our -- as our predecessors.

And I would also note --

REP. NADLER: Wait a minute, wait a minute. You file 1 to 2 percent currently and historically, you're saying, of the referrals by the EEOC.

MR. AGARWAL: That's correct.

REP. NADLER: And yet the number of referrals, the number of filings has gone down considerably. Given the fact -- I mean 1 to 2 percent sounds like an awfully low number. If the number of referrals has gone down is essentially what you are saying, so it's only 3,200, maybe it was -- I don't know what it was before, 4,000 let's say -- shouldn't you then have the resources to up the percentage to go to 3 percent?

MR. AGARWAL: I'm not sure that it's a resource issue, Mr. Chairman.

Since joining the division last year I've 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 --

REP. NADLER: Let me ask you one question before going on to patterns and practices. Why is that under this administration and previous administrations only 1 or 2 percent of cases are filed of those referrals that the EEOC thinks are legitimate cases, if it's not a resource question?

MR. AGARWAL: That's a very good question, Mr. Chairman. I would note that the EEOC itself only brings suit on a small, on a relatively small percentage of charges that are filed with it.

REP. NADLER: Well, but that's not an answer.

MR. AGARWAL: Not all of the -- not all of the cases on which the EEOC finds reasonable cause end up being suit worthy after --

REP. NADLER: Yeah, but 1 or 2 percent?

MR. AGARWAL: Those are what the numbers have been historically. After further investigation has been done, sometimes we find that it's just simply not appropriate litigation.

REP. NADLER: All right. 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 in 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's the same average as happened during the last four 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 two fiscal years. During the last three years of the Clinton administration, they filed three pattern and practice cases total. So in the last two years we managed to double that amount.

REP. NADLER: We'll get back those statistics later, but my time has expired.

I recognize the ranking member of the subcommittee, Mr. Franks.

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