Justice News

Acting Assistant Attorney General Vanita Gupta Delivers Remarks at the Annual Conference of the Metropolitan Washington Employment Lawyers Association
Washington, DC
United States
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Friday, February 20, 2015

Remarks as Prepared for Delivery

First, I’d like to thank Jenn for her very kind introduction. Thank you for inviting me to speak at your annual conference today and for all the work you do every day to ensure equal opportunity.

It is a historic time for civil rights laws.  In the year that’s just ended, and the year that’s just begun, our nation is celebrating four anniversaries of our commitment to landmark civil rights laws: the 50th anniversary of the Civil Rights Act of 1964 and the Voting Rights Act of 1965; the 25th anniversary of the Americans With Disabilities Act; and the fifth anniversary of the Shepard-Byrd Hate Crimes Prevention Act. 

While we celebrate these anniversaries, events around the country, the docket of the Civil Rights Division and, I know, the dockets of the people here today are a sobering reminder of how much work we have left to do. 

The good news is we are all here to do it.  I have been at the Department for just about four months, and each day I am deeply impressed by the breadth and depth of the Civil Rights Division’s work.  For more than five decades, the Division has been at the forefront of enforcing the laws that prohibit discrimination and uphold the civil and constitutional rights of all who live in America. 

The work of the Division advances individuals’ opportunity to learn, earn a living, live where they choose, and worship freely. It ensures the right to vote and access to justice.  It ensures that communities have effective and democratically accountable policing.  Our work helps to ensure that people can live free from exploitation, discrimination, and violence regardless of the color of their skin, who they love, or their faith.  And, through this work, we give voice to the marginalized, vulnerable, and forgotten. 

I know that we are joined in those efforts by everyone sitting in this room and I thank you for your commitment.  In the short time that I have been in the Division, I have come to appreciate the importance of partnerships to the Division’s ability to do the greatest amount of good with limited resources.  I know that some of you have worked with our Employment Litigation Section and I encourage you to continue to do so. 

In addition to working with the private bar, the Employment Litigation Section has created effective partnerships with the EEOC and the Department of Labor to address a wide range of employment discrimination issues.  The Employment Litigation Section and the EEOC have an ongoing pilot project involving several EEOC districts -- Chicago, Los Angeles, Philadelphia and San Francisco.  Charges are selected for the pilot and Section lawyers work with EEOC investigators during investigation of the charges.  Collaboration during the pilot can limit or even eliminate the need for the division to conduct its own investigation of a charge after it is referred by EEOC. 

We have had several recent successes in the pilot project, including settling two religious discrimination cases.  The first involved a teacher seeking time off for religious observance and the second involved a police officer seeking a religious exemption to an appearance policy.  In addition, the Section has also started a pilot project with the Department of Labor to refer violations of Executive Order 11246 involving allegations of discrimination by Federal contractors and subcontractors. 

I want to highlight two welcome and important announcements by the Department regarding employment law. 

On December 18, Attorney General Holder forged new and historic ground when announcing that the Department of Justice will take the position in litigation that Title VII’s prohibition of sex discrimination encompasses discrimination  based on gender identity, including transgender status.  A few weeks later, in January 2015, the Division was able to put this policy change into action when we filed a statement of interest in Jamal v. SAKS & Company, a case currently pending in federal district court in Texas. 

Ms. Jamal is a transgender woman who alleges that during her employment at a Houston SAKS store she was instructed not to wear makeup or feminine-style clothing and was told to change her appearance to a more masculine one.  She claims that she was physically threatened, referred to as a prostitute in front of a customer, and repeatedly referred to by male pronouns. 

SAKS filed a brief seeking to dismiss the case on the grounds that Title VII’s prohibition on sex discrimination does not protect transgender individuals.  Our statement of interest argued that discrimination on the basis of transgender status is per se based on sex and is prohibited by federal law.  The day we filed our brief, the company withdrew its brief.

And on December 3rd, the Solicitor General argued for the United States in Young v. United Parcel Service that the Pregnancy Discrimination Act means what it says. 

Although the Act requires employers to treat pregnant workers the same way they treat other employees, court after court has approved of employer policies, like UPS’s, that that allow accommodations or light duty to injured employees but deny them to pregnant women with the same working restrictions.   

If the Department’s position becomes law, life will be better for pregnant women, especially those in physically demanding jobs.  Access to light duty or an accommodation can mean a woman can continue working and supporting her family.  In a time when women are the major or co-breadwinner in two-thirds of families, this can mean that food gets on the table and rent gets paid.   The Court has not ruled on this case yet, but, interestingly, UPS has changed its policy. 

These recent developments are important not just as noteworthy legal events but because they impact real people’s lives in very concrete ways. While there is no question about how far we have come in this country on civil rights, there is also no denying that we have more work to do. And the challenge of embedding civil rights values of equality, fairness, and justice into our policies and practices remains an ever important one.

Today, I would like to focus especially on a topic that is top of mind for many communities in this country, and that is policing. The Civil Rights Division and indeed the Department of Justice has long been focused on advancing constitutional and smart police practices that keep communities and police officers safe. One aspect of our work is aimed at ensuring that employment in law enforcement agencies is open to people who live in the communities served by those agencies.  In the Division, much of that work is done by our Employment Litigation Section.

In recent months, with the tragic deaths of Michael Brown in Ferguson and Eric Garner in New York and Tamir Rice in Cleveland, and the assassinations of two NYPD officers, the country is engaged in an important national reflection and conversation about policing, public safety, racial justice, and mutual accountability.  These incidents have brought long-simmering divides to the surface and have prompted renewed interest in how we police and who becomes a police officer. And they have focused a spotlight on the rifts that can develop between police officials and the citizens they are entrusted to serve and protect.

Achieving diversity in law enforcement agencies can increase mutual trust between those agencies and the communities they serve.  That basic trust can be an essential part of defusing tension, investigating and solving crimes, creating a system where citizens feel that they can rely on their police departments and where police can rely on communities to be co-partners in creating public safety.

Police jobs are the backbone of a community:  they offer long-term and rewarding careers; bring families into the middle class; and create investment in the community, all of which have a positive impact on that community’s schools and housing and, indeed, in all other aspects of the American dream.  While policing can open the doors to a better life, we should also acknowledge that policing is a difficult and sometimes dangerous job that the vast majority of officers carry out with honor, pride, and distinction.  We owe a debt of gratitude to the brave law enforcement officers who dedicate their lives to protecting us.

We know that the vast majority of police officers want to be, and want to be perceived as, part of the communities that they serve. And I know that law enforcement and community leaders alike feel a sense of urgency at the moment to rebuild mutual trust and respect. A commitment to diversity in hiring and promotion opens these noble jobs to all qualified Americans and can help make communities and officers safer. 

Of course, it is important to state up front that a diverse police department will not ensure constitutional policing.  As we have been saying: it is necessary, but not sufficient.  Where there exists a dichotomy between police and the communities they serve, components of the community cease to trust the police, and, just as importantly, police cease to trust components of the community.  Restoring mutual trust requires concrete measures to ensure that individual officers employ community policing strategies; that departments commit to community engagement; and also that there are potent mechanisms for civilian oversight and transparency.  The events over the last several months have also brought new attention to the question of who becomes a police officer.

For employment lawyers and for the Civil Rights Division, the need to diversify public employment is not a new issue.  For decades, the Division and the private bar have fought to integrate the hiring and promotion practices of police and fire departments and other public employers both through individual and pattern or practice cases.  And recently, I have heard from many law enforcement leaders about the importance they place on diversity in their ranks.

Many of our employment pattern or practice cases focus on the examinations used to select employees for promotion or hire.  For example, the Division successfully sued New Jersey regarding its written examination for police sergeants; as a result, one of the small communities that had been using the challenged examination promoted its first ever African American sergeant this year.   The Division sued the City of Corpus Christi regarding its entry-level physical fitness test and the impact that examination had on women.  The police department had no women in the academy class prior to the lawsuit.  The first class after the lawsuit was 50% women and the one after that was 33% women.

I mentioned that one of the reasons we care about diversity in public employment is that it ensures that public sector jobs are open to every qualified individual.  In 2009, in our case against the Fire Department of New York, the court found that approximately 293 qualified African-American and Hispanic job applicants were not selected for entry-level firefighter jobs because of their race or national original.

New York Times article from last year offers a concrete example of how these efforts give opportunities to qualified applicants and benefit the citizens those departments serve.  The article tells the story of Jordan Sullivan, an African-American New Yorker who applied to the Fire Department in New York City after living through the attacks on September 11th.  He took the written test but his score precluded him from being considered.  As a result of the Title VII lawsuit against the department that found that the exam he had taken discriminated against black and Hispanic applicants, Sullivan took a new, fairer, test and was hired by the FDNY. 

On March 16, 2014, Jordan Sullivan was hired by FDNY and passed his training period. On March 16, 2014, Firefighter Sullivan was called to his first fire.  He found and helped rescue a five month old baby. 

The list goes on.  For example, the Division recently settled a case against the Austin Fire Department regarding its use of an entry-level examination which had a disparate impact against African Americans and Hispanics.  We are litigating a case against the Pennsylvania State Police regarding its entry-level physical test which has an adverse impact against women and the Rhode Island Department of Corrections regarding its entry level hiring examination which has a disparate impact against African Americans and Hispanics. 

We’ve also had success tackling this problem outside of litigation.  For example, in 2011 the State of Illinois passed a statute requiring all fire departments other than Chicago to set the pass point on their entry-level examinations based on the mean and later the median of the score of those who sat for the individual administration of the test.  But, the 7th Circuit had already found in Evans v. City of Evanston that setting a pass point in this manner violates Title VII.   This was a state-wide problem that required a state-wide solution.  So rather than go our normal litigation route, we worked with the cities and the Illinois Attorney General’s Office, and the state legislature repealed the discriminatory practice. 

Currently, our efforts on police diversity are running on two tracks.  First, we are working closely with the EEOC to identify patterns or practices that warrant investigation.  Second, DOJ and the EEOC along with the Office of Justice Programs and the Department of Labor have been brainstorming about how to best identify barriers that undermine diversity in police departments, as well as best practices that departments can employ to ensure that their employees reflect the communities they serve.

We want to hold up police departments that have been particularly successful in this area and find ways to share and spread the steps they took to ensure that their officers reflect the communities they serve. As part of that process, we have served as a resource for the President’s Task Force on 21st Century Policing, and have provided background information and research on diversity issues to the Task Force. 

We are particularly interested in developing a resource that can be useful for smaller police departments struggling with increasing diversity in its ranks.  The fact is that police departments of 50 officers do very little hiring–maybe 1 or 2 officers every 4 years.  This makes it difficult or impossible to base a case on statistical analysis, which means we are dependent on an individual bringing a hiring charge to the EEOC.  While this is a new venture for the Division, we are very excited about it, and are optimistic that it will lead to results that litigation, by itself, won’t get us.

In addition to our police diversity work, the Division has been actively involved in ensuring that communities have effective and democratically accountable police departments.  Over the last six years, the Civil Rights Division has fanned out across the Nation and undertaken investigations of law enforcement around the country.  During that time, we have initiated over 20 investigations into police departments – over twice as many as were opened in the previous five fiscal years. 

We are currently enforcing 15 agreements with law enforcement agencies – including eight consent decrees – to correct unconstitutional policing practices.  Reform is underway in New Orleans; Seattle; Albuquerque; Portland, Oregon; East Haven, Connecticut; Puerto Rico; and Warren, Ohio.  This is the largest number of law enforcement agencies being reviewed at any one time in the history of the Department.

The Civil Rights Division is usually invited into jurisdictions by local officials and law enforcement leaders to investigate concerns about unconstitutional policing.  Our investigations entail exhaustive engagement with the community through individual interviews and town hall meetings.  We meet with local officials and civil rights leaders.  We learn from law enforcement leaders.  And we spend a lot of time speaking with line officers and with police unions.  From them we learn too often about how they lack adequate support, training, policy guidance, supervision, and even equipment to keep them safe and allow them to engage in constitutional policing that keeps them and the public safe.

Engagement by the Civil Rights Division is aimed at giving police officers the tools to be more effective, to partner with civilians to enhance officer and public safety, to make their jobs safer and to ensure that the criminal justice system is equitable and seen by all as legitimate.

Even after we announce our findings, we continue intensive engagement with all of the various stakeholders, including important community leaders and line officers and police unions to help shape the remedies that we negotiate at arms length with city officials. These stakeholders must feel some investment in the remedies laid out in our agreements for them to be successful and sustainable.

Civil rights work does not come without struggle. The fight to end all forms of discrimination requires sustained effort and commitment.

In closing, I want to thank you for the work that you do and for your commitment to justice and civil rights. It is tireless work, requiring long hours, excellence, and persistence. And when we are faced with big challenges, it also requires a deep, deep well of hope. So, thank you for your work to make equal justice and equal opportunity a reality for everyone in this country. Let us know about cases and issues you see and how the Civil Rights Division can be helpful.  We have so much more to do, and it will only get done together. Thank you.

Updated August 19, 2016