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


Date: Sept. 25, 2007
Location: Washington, DC

Oversight Hearing on the Employment Section of the Civil Rights Division of the U.S. Department of Justice. (Panel 2)

REP. NADLER: I'd ask the second panel to step forward and take your seats. While they're taking their seats, I will introduce the second panel.

Professor Richard Ugelow (pronounces "Yugel-ow") -- Ugelow (pronounces "Yugel-o") 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 into 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 (pronounces "Dry-band")? Dreiband (pronounces "Dre-band")?

MR. DREIBAND: Dreiband. (Pronounces "Dry-band".)

REP. NADLER: 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 for three years as an associate independent counsel in the office of Independent Counsel Kenneth Starr. He's 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 work -- from welfare to work. Excuse me; from welfare to work. She is a graduate of Harvard Law School.

The written statements will be made part of the record in its entirety. I would ask that you now summarize your testimony -- or shortly summarize your testimony in five minutes or less. To help you stay within that time there's a timing light at your table. When one minute remains, the light will switch from green to yellow, then red when the time -- when the five minutes are up.

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

(The witnesses are sworn in.)

Let the record reflect that each of the witnesses 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 -- twelve minutes remaining on the first vote, and the three subsequent votes will be five-minute votes. We will recess for the votes. We will -- 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 can probably get in -- yeah, we'll get in the testimony of one witness at least before we have to go to the vote. (Off mike.) Yeah.

So I'll begin -- I'll first recognize, in this order, Professor Ugelow.

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 four 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 four days, on September 29th, 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 upon 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 year remaining in office, the Bush administration has filed only 47 Title VII lawsuits. By contrast, the Clinton administration filed 92 lawsuits in its eight years. Bush One administration filed 81 lawsuits in its four years, and the Reagan administration filed 99 cases in its eight 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 two 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 seven years, the Employment Litigation has filed only three pattern, 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's record does not fare any better when looking at its use of Title VII authority to file suits based upon individual charges of discrimination. The administration has filed 10 cases that allege discrimination based upon race, and two of those cases were reverse discrimination, or 20 percent of the cases were reverse discrimination cases. Not one of these cases alleges discrimination against Latinos.

My review of the Section's case filing suggests 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 to 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.

REP. 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. (Strikes gavel.)