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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 

(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

BETTY SUTTON, Ohio 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

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 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

STEVE COHEN, Tennessee 

TRENT FRANKS, Arizona 

MIKE PENCE, Indiana 

DARRELL ISSA, California 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(III) 

C O N T E N T S 

SEPTEMBER 25, 2007 

Page 

OPENING STATEMENT 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Chairman, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 1 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Ranking Member, Subcommittee on the Constitution, Civil 

Rights, and Civil Liberties .................................................................................. 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, Chairman, Committee on the Judiciary, and Member, 

Subcommittee on the Constitution, Civil Rights, and Civil Liberties ............. 4 

The Honorable Darrell Issa, a Representative in Congress from the State 

of California, and Member, Subcommittee on the Constitution, Civil Rights, 

and Civil Liberties ............................................................................................... 5 

WITNESSES 

Mr. Asheesh Agarwal, Deputy Assistant Attorney General, U.S. Department 

of Justice, Civil RIghts Division 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 9 

Mr. Richard Ugelow, Practitioner in Residence, Washington College of Law, 

American University 

Oral Testimony ..................................................................................................... 28 

Prepared Statement ............................................................................................. 30 

Ms. Janet Caldero, Beechhurst, NY 

Oral Testimony ..................................................................................................... 37 

Prepared Statement ............................................................................................. 39 

Mr. Eric S. Dreiband, Partner, Akin Gump Strauss Hauer & Feld 

Oral Testimony ..................................................................................................... 40 

Prepared Statement ............................................................................................. 42 

Ms. Jocelyn Frye, General Counsel, Workplace Fairness Program, National 

Partnership for Women and Families 

Oral Testimony ..................................................................................................... 43 

Prepared Statement ............................................................................................. 46 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 

Congress from the State of New York, and Chairman, Subcommittee on 

the Constitution, Civil Rights, and Civil Liberties ............................................ 61 

Prepared Statement of the American Civil Liberties Union (ACLU) .................. 62 

(1) 

EMPLOYMENT SECTION OF THE CIVIL 

RIGHTS DIVISION OF THE U.S. DEPARTMENT OF JUSTICE 

TUESDAY, SEPTEMBER 25, 2007 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS, AND CIVIL LIBERTIES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:05 a.m., in 

Room 2141, Rayburn House Office Building, the Honorable Jerrold 

Nadler (Chairman of the Subcommittee) presiding. 

Present: Representatives Conyers, Nadler, Davis, Ellison, Scott, 

Watt, Franks, Issa, and Jordan. 

Staff present: David Lachmann, Subcommittee Chief of Staff; 

LaShawn Warren, Majority Counsel; Keenan Keller, Majority 

Counsel; Susana Gutierrez, Professional Staff Member; Crystal 

Jezierski, Minority Counsel; and Paul B. Taylor, Minority Counsel. 

Mr. NADLER. Good morning. This hearing of the Subcommittee 

on the Constitution, Civil Rights, and Civil Liberties will come to 

order. 

Today’s hearing will continue the Subcommittee’s oversight of 

the Civil Rights Division of the Department of Justice. Today, the 

Subcommittee will focus on the work of the Employment Section of 

the Civil Rights Division. 

The Chair now recognizes himself for 5 minutes for an opening 

statement. 

Before we begin, I would like to take note of the fact that today 

is the 50th anniversary of the integration of Central High School 

in Little Rock, Arkansas. When those nine brave students walked 

into that school, they made a mark on American education and 

paid tribute to our civil rights. Fifty years later, while discrimination has been erased from most of our laws, it has yet to be fully 

achieved in our actions. 

It is partly through the work of this Subcommittee, the full Committee and Congress that I hope we can soon see the day where 

equality is found both in our hearts and deeds. Deny an otherwise 

qualified person a job and you deny that person’s dignity, the ability to feed his or her family, possible health insurance and all the 

necessities that go along with gainful employment. Deny someone 

a job this person has trained for or has worked at for many years 

and you are destroying what might be a lifetime of work. 

2 

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 evenhanded 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. 

3 

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 

4 

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. 

5 

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 

6 

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? 

7 

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 passfail 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. 

8 

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:] 

9 

PREPARED STATEMENT OF ASHEESH AGARWAL


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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 

14 

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. 

15 

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. 

16 

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. 

17 

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 parttime work, and poverty gives way to a lot of social maladjustment 

in our society. Poverty is the source of lots of problems. 

18 

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 

19 

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 

20 

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. 

21 

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 firstever 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? 

22 

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 

23 

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—— 

24 

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? 

25 

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. 

26 

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. 

27 

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 

28 

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 reVerDate Aug 31 2005 15:16 Jul 24, 2008 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6601 H:\WORK\CONST\092507\37976.000 HJUD1 PsN: 37976
29 

verse 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:] 

30 

PREPARED STATEMENT OF RICHARD S. UGELOW


RSU-2.eps
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RSU-4.eps
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RSU-5.eps
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37 

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. 

38 

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, 

39 

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. 

40 

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. 

41 

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. 

42 

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 governVerDate Aug 31 2005 15:16 Jul 24, 2008 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6621 H:\WORK\CONST\092507\37976.000 HJUD1 PsN: 37976
43 

ment’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 AdministraVerDate Aug 31 2005 15:16 Jul 24, 2008 Jkt 000000 PO 00000 Frm 00047 Fmt 6633 Sfmt 6601 H:\WORK\CONST\092507\37976.000 HJUD1 PsN: 37976
44 

tion. 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. 

45 

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:] 

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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. 

56 

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. 

57 

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 

58 

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. 

59 

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.] 

61 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JERROLD NADLER, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NEW YORK, AND CHAIRMAN, SUBCOMMITTEE ON

THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES

Before we begin today, I would like to take note of the fact that today is the 50th 

anniversary of the integration of Central High School in Little Rock, AR. When 

those nine brave students walked into that school, they made a mark on American 

education and paid tribute to our civil rights. Fifty years later, while discrimination 

has been erased from most of our laws, it has yet to be fully achieved in our actions. 

It is through the work of this Subcommittee, the full Committee and Congress that 

I hope we can soon see the day where ‘‘equality’’ is found in both our hearts and 

deeds. 

Deny an otherwise qualified person a job, and you deny that person dignity, the 

ability to feed his or her family, possibly health insurance and all the necessities 

that go along with gainful employment. Deny someone a job that person has trained 

for, or has worked at, for many years, and you are destroying what might be a lifetime of work. 

One of the most important missions of the Department of Justice is to protect all 

Americans against employment discrimination on the basis of race, religion, gender, 

disability or national origin. Hopefully, in the not too distant future, that list will 

include sexual orientation and gender identity, but that is a battle for another day. 

Today we are concerned with how well the Department of Justice is enforcing the 

law. 

In many other areas, this Committee has brought to light decisions made at the 

Department of Justice that have been guided more by political considerations than 

by the merits of an issue. Sometimes, it is not so much politics as it is ideology. 

Today we will examine a number of cases in which the Department seems to have 

gone against established civil rights policy, or even turned its back on consent decrees to which it had committed itself. As in other parts of the Department, we have 

received reports of poor morale, departures of career staff, and political interference 

with the Section’s important work. I am concerned that this pattern may also be 

present in the Employment Section. 

The Justice Department’s Employment Litigation Section is mandated to enforce 

Title VII of the Civil Rights Act of 1964 and various other civil rights laws that prohibit employment discrimination. As challenges to discriminatory employment practices are usually factually and legally complex, and often take several years to litigate, the Justice Department is uniquely positioned to lead the charge in those 

cases. 

The Bush Administration, however, has filed only 47 Title VII cases since 2001. 

By comparison, the Clinton Administration filed 34 cases in its first two years and 

a total of 92 by the end of its term. Also, in many cases, the Bush Administration 

has reversed the position taken by about all pervious administrations in the middle 

of a case, or has opposed settlements to which it had previously been a party. One 

of the witnesses has been a victim of discrimination in such a case and will describe 

her experiences. 

Also at issue is the exit of a significant numbers of career lawyers in the Section 

and the hiring of lawyers who have little experience in civil rights. 

There is nothing more Un-American than bigotry. When those charged with fighting discrimination fail to do so, the government provides tacit support for discrimination. Discrimination destroys families and tears at the fabric of our nation. We 

are at our strongest as a people when we use the talents and abilities of all our 

citizens to their fullest extent. To that end, the enforcement of our discrimination 

laws must be above partisan and political influence. The promise of our nation’s 

civil rights laws is only met when the Justice Department applies them aggressively 

and in an even-handed fashion. We will examine today whether that promise is 

being honored by the current Justice Department. 

I look forward to our witnesses’ testimony and I thank you for being here to testify. 

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