The Employment Litigation Section enforces Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), against state and local government employers. Title VII prohibits employment practices that discriminate because of race, color, national origin, sex (including pregnancy) and religion. The Section also enforces the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) against state and local government and private employers. USERRA prohibits employment practices that discriminate because of an individual’s past, current or future military status, service or obligation. In addition, the Section has jurisdiction to enforce Executive Order 11246, which prohibits discrimination by federal contractors and subcontractors because of race, color, national origin, sex, sexual orientation, gender identity, and religion.
The Section brings suits utilizing the full panoply of theories of discrimination available under both Title VII and USERRA. The most common type of suit brought by the Section is one that alleges disparate treatment, or intentional discrimination, where an employer purposefully takes an adverse action against an applicant or employee because of a protected characteristic, such as race or sex. These suits may involve, for example, an employer’s unlawful failure to hire or promote an applicant because of his race or termination of an employee because of her sex. Many of the Section’s suits allege disparate impact, which typically arises when an employer uses a facially neutral criterion, such as a written or physical examination, which has a disproportionate impact on a protected group, such as Latinos or women. While the employer may not intentionally discriminate against applicants or employees, its actions may have the effect of depriving, or otherwise adversely affecting, individuals with respect to employment opportunities.
In addition, the Section brings suits alleging harassment based on a protected characteristic such as sex (including pregnancy), where the evidence demonstrates unwanted sexual advances, requests for sexual favors, or conduct that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive or hostile work environment. The Section also brings suits against employers who fail or refuse to provide reasonable accommodations to the religious observances and practices of applicants and employees, as required by Title VII. Finally, the Section brings suits against employers who retaliate against individuals for opposing any employment practice that would violate Title VII or USERRA, for filing a charge or complaint under these statutes, for assisting in the investigation of such a charge or complaint, or for participating in a suit or other proceeding relating to a charge or complaint of employment discrimination. The litigation handled by the Section is national in scope. Attorneys and staff assigned to the Section concern themselves with all aspects of civil litigation, including investigations, suit recommendations, discovery, motions practice, settlement negotiations, trials, and the monitoring and enforcement of court orders for remedial and injunctive relief. Frequently, the Section’s litigation involves complex issues and the testimony of expert witnesses, such as industrial psychologists, exercise physiologists, economists and statisticians.
Title VII of the Civil Rights Act of 1964
The Section initiates Title VII litigation in two ways. Pursuant to Section 707 of Title VII, the Attorney General has authority to bring suit against a state or local government employer where there is reason to believe that a “pattern or practice” of discrimination exists. Generally, these are factually and legally complex cases that seek injunctive relief to alter unlawful employment policies and practices – such as recruitment, hiring, assignment and promotion – which have the purpose or the effect of denying employment or promotional opportunities to a class of individuals. Under its “pattern or practice” authority, the Section also obtains relief, generally in the form of offers of employment, retroactive seniority and back pay, for individuals who have been the victims of unlawful employment policies and practices.
The Section’s second Title VII enforcement mechanism is the filing of suit, pursuant to Section 706 of Title VII, against a state or local government employer based upon an individual charge of discrimination referred to the Section by the Equal Employment Opportunity Commission (“EEOC”). The EEOC refers such a charge to the Section only after the EEOC has investigated the charge and determined that the charge has merit and the EEOC’s efforts to obtain voluntary compliance are unsuccessful. The Section has authority to determine whether to initiate litigation based upon an individual charge referred to it by the EEOC. While usually small in scope when compared to pattern or practice suits, these are suits that might not be pursued without the Section’s participation, and they often address types of discrimination that may not be remediable through pattern or practice suits.
Uniformed Services Employment Reemployment Rights Act of 1994
The Section has had enforcement authority under USERRA since September 2004. Under USERRA, servicemembers may file administrative complaints with the Department of Labor, which investigates such complaints, makes determinations as to whether they have merit, and attempts to voluntarily resolve those complaints it determines have merit. The Department of Labor forwards to the Section all unresolved USERRA complaints of those servicemembers who request to be represented by the Department of Justice. Upon receipt of an unresolved USERRA complaint from the Department of Labor, the Section reviews the investigative file and makes a determination as to whether to extend representation to the servicemember. Under USERRA, the Department of Justice has authority to represent a servicemember if the Department is satisfied that the servicemember is entitled to the rights or benefits being sought.
Employment Discrimination by Federal Government Contractors
The Section has authority to prosecute enforcement actions upon referral by the Department of Labor of complaints arising under Executive Order 11246, which prohibits discrimination in employment by federal government contractors on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin. The Section also represents the Departments of Labor and Transportation and other federal agencies in suits challenging the application or enforcement of federal laws that prohibit discrimination by government contractors or recipients of federal financial assistance and/or pertain to federal minority and disadvantaged small business programs.