U.S. Department of Justice
Opportunities Exist to Strengthen the Civil Rights Division's Ability to Manage and Report on Its Enforcement Efforts Gao ID: GAO-10-256T December 3, 2009The Civil Rights Division (Division) of the Department of Justice (DOJ) is the primary federal entity charged with enforcing federal statutes prohibiting discrimination on the basis of race, sex, disability, religion, and national origin (i.e., protected classes). The Government Accountability Office (GAO) was asked to review the Division's enforcement efforts and its Interactive Case Management System (ICM). This testimony addresses (1) the activities the Division undertook from fiscal years 2001 through 2007 to implement its enforcement responsibilities through its Employment Litigation, Housing and Civil Enforcement, Voting, and Special Litigation sections, and (2) additional data that could be collected using ICM to assist in reporting on the four sections' enforcement efforts. This statement is based on GAO products issued in September and October 2009.
From fiscal years 2001 through 2007, the Civil Rights Division initiated matters and filed cases to implement its enforcement responsibilities through the four sections. The Employment Litigation Section initiated 3,212 matters and filed 60 cases as plaintiff under federal statutes prohibiting employment discrimination. Most matters (3,087) were referred by other agencies. Of the 11 pattern or practices cases--cases that attempt to show that the defendant systematically engaged in discriminatory activities--9 involved claims of discrimination in hiring and the most common protected class was race (7). The Housing and Civil Enforcement Section initiated 947 matters and participated in 277 cases under federal statutes prohibiting discrimination in housing, credit transactions, and certain places of public accommodation. Most (456 of 517) Fair Housing Act (FHA) matters were initiated under its pattern or practice authority, primarily alleging discrimination on the basis of race or disability and involving land use/zoning/local government or rental issues. Most (250 of 269) cases filed as plaintiff included an FHA claim. The FHA cases primarily involved rental issues (146) and alleged discrimination on the basis of disability (115) or race (70). The Voting Section initiated 442 matters and filed 56 cases to enforce federal statutes that protect the voting rights of racial and language minorities, and disabled and illiterate persons, among others. The Section initiated most matters (367) and filed a majority of cases (39) as plaintiff under the Voting Rights Act, primarily on behalf of language minority groups (246 and 30). The Special Litigation Section initiated 693 matters and filed 31 cases as plaintiff to enforce federal civil rights statutes on institutional conditions (e.g., protecting people in nursing homes), the conduct of law enforcement agencies, access to reproductive health facilities and places of worship, and the exercise of religious freedom of institutionalized persons. The largest number of matters initiated and closed (544 of 693) involved institutional conditions (373), as did the cases filed (27). Information on the specific protected classes and subjects related to matters and cases and the reasons for closing matters were not systematically maintained in ICM because the Division did not require sections to capture these data. As a result, the availability and accuracy of these data varied among the sections. For example, the Employment Litigation Section did not capture protected class and subject data for more than 80 percent of its matters. In contrast, these data were consistently recorded in ICM for the Housing and Civil Enforcement Section, which requires that protected class and subject data be recorded in ICM. In addition, congressional committees have requested information on reasons the Division did not pursue matters, including instances in which Division managers did not approve a section's recommendation to proceed with a case. However, ICM does not include a discrete field for capturing the reasons that matters are closed and Division officials we interviewed could not identify instances in which Division managers did not approve a section's recommendation to proceed with a case. By requiring sections to record such information, the Division could strengthen its ability to account for its enforcement efforts.
GAO-10-256T, U.S. Department of Justice: Opportunities Exist to Strengthen the Civil Rights Division's Ability to Manage and Report on Its Enforcement Efforts
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Testimony:
Before the Subcommittee on the Constitution, Civil Rights, and Civil
Liberties, Committee on the Judiciary, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 10:00 a.m. EST:
Thursday, December 3, 2009:
U.S. Department of Justice:
Opportunities Exist to Strengthen the Civil Rights Division's Ability
to Manage and Report on Its Enforcement Efforts:
Statement of Eileen R. Larence, Director:
Homeland Security and Justice:
GAO-10-256T:
GAO Highlights:
Highlights of GAO-10-256T, a testimony before the Subcommittee on the
Constitution, Civil Rights, and Civil Liberties, Committee on the
Judiciary, House of Representatives.
Why GAO Did This Study:
The Civil Rights Division (Division) of the Department of Justice (DOJ)
is the primary federal entity charged with enforcing federal statutes
prohibiting discrimination on the basis of race, sex, disability,
religion, and national origin (i.e., protected classes). GAO was asked
to review the Division‘s enforcement efforts and its Interactive Case
Management System (ICM). This testimony addresses (1) the activities
the Division undertook from fiscal years 2001 through 2007 to implement
its enforcement responsibilities through its Employment Litigation,
Housing and Civil Enforcement, Voting, and Special Litigation sections,
and (2) additional data that could be collected using ICM to assist in
reporting on the four sections‘ enforcement efforts. This statement is
based on GAO products issued in September and October 2009.
What GAO Found:
From fiscal years 2001 through 2007, the Civil Rights Division
initiated matters and filed cases to implement its enforcement
responsibilities through the four sections. The Employment Litigation
Section initiated 3,212 matters and filed 60 cases as plaintiff under
federal statutes prohibiting employment discrimination. Most matters
(3,087) were referred by other agencies. Of the 11 pattern or practices
cases––cases that attempt to show that the defendant systematically
engaged in discriminatory activities––9 involved claims of
discrimination in hiring and the most common protected class was race
(7). The Housing and Civil Enforcement Section initiated 947 matters
and participated in 277 cases under federal statutes prohibiting
discrimination in housing, credit transactions, and certain places of
public accommodation. Most (456 of 517) Fair Housing Act (FHA) matters
were initiated under its pattern or practice authority, primarily
alleging discrimination on the basis of race or disability and
involving land use/zoning/local government or rental issues. Most (250
of 269) cases filed as plaintiff included an FHA claim. The FHA cases
primarily involved rental issues (146) and alleged discrimination on
the basis of disability (115) or race (70). The Voting Section
initiated 442 matters and filed 56 cases to enforce federal statutes
that protect the voting rights of racial and language minorities, and
disabled and illiterate persons, among others. The Section initiated
most matters (367) and filed a majority of cases (39) as plaintiff
under the Voting Rights Act, primarily on behalf of language minority
groups (246 and 30). The Special Litigation Section initiated 693
matters and filed 31 cases as plaintiff to enforce federal civil rights
statutes on institutional conditions (e.g., protecting people in
nursing homes), the conduct of law enforcement agencies, access to
reproductive health facilities and places of worship, and the exercise
of religious freedom of institutionalized persons. The largest number
of matters initiated and closed (544 of 693) involved institutional
conditions (373), as did the cases filed (27).
Information on the specific protected classes and subjects related to
matters and cases and the reasons for closing matters were not
systematically maintained in ICM because the Division did not require
sections to capture these data. As a result, the availability and
accuracy of these data varied among the sections. For example, the
Employment Litigation Section did not capture protected class and
subject data for more than 80 percent of its matters. In contrast,
these data were consistently recorded in ICM for the Housing and Civil
Enforcement Section, which requires that protected class and subject
data be recorded in ICM. In addition, congressional committees have
requested information on reasons the Division did not pursue matters,
including instances in which Division managers did not approve a
section‘s recommendation to proceed with a case. However, ICM does not
include a discrete field for capturing the reasons that matters are
closed and Division officials we interviewed could not identify
instances in which Division managers did not approve a section‘s
recommendation to proceed with a case. By requiring sections to record
such information, the Division could strengthen its ability to account
for its enforcement efforts.
What GAO Recommends:
GAO previously recommended that the Division, among other things,
require sections to record data on protected class and subject in the
Division‘s case management system, and determine how sections should be
required to record data in the system on the reasons for closing
matters. DOJ concurred. The Division plans to require all Division
sections to record data on protected class and subject in its case
management system as well as upgrade the system to include a field on
reasons for closing matters and require all sections to record data in
this field.
View [hyperlink, http://www.gao.gov/products/GAO-10-256T] or key
components. For more information, contact Eileen R. Larence (202) 512-
8777 or larencee@gao.gov.
[End of section]
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss the enforcement efforts of the
Civil Rights Division's (Division) Employment Litigation, Housing and
Civil Enforcement, Voting, and Special Litigation[Footnote 1] sections
from fiscal years 2001 through 2007, as well as the case management
system the Division uses to track and manage these efforts.[Footnote 2]
Established after the passage of the Civil Rights Act of 1957,[Footnote
3] the Division of the Department of Justice (DOJ) is the primary
federal entity charged with enforcing federal statutes prohibiting
discrimination on the basis of race, sex, disability, religion, and
national origin. The Division's mission has expanded to include the
enforcement of laws prohibiting discrimination in employment, housing,
voting, public accommodations, education, and the rights of
institutionalized persons. To carry out these broad enforcement
responsibilities, the Division initiates thousands of matters (e.g., an
investigation of a complaint or an allegation of discrimination
referred by another federal agency) and hundreds of cases each year. In
October 2000, the Division implemented the Interactive Case Management
System (ICM) as its official system to track, count, and capture
performance measurement information for all matters and cases from
their inception to their conclusion and to assist staff in their
casework. According to Division documentation, ICM was also designed to
serve as a tool for senior management to oversee the Division's work
and to assist senior managers in, among other things, reporting
accurate matter and case data at all levels of the organization,
improving accountability, and responding to congressional inquiries
about the work of the Division.
In September 2000, we reported on the reasons that the Division's
Employment Litigation, Housing and Civil Enforcement, and Voting
sections pursued a selection of cases and closed a selection of
matters.[Footnote 4] We stated that legal merit (i.e., the strength of
evidence in a case) was the predominant reason in the Sections'
decisions to pursue allegations of discrimination as cases. We also
reported that the reasons generally given for closing a matter were,
among others, insufficient evidence to support allegations and
corrective action was taken by the jurisdiction investigated. In
addition, in February and September 2000, we reported on how the
Division tracked and managed matters and cases using its Case
Management System and described the new system--ICM--that the Division
was implementing at the time of our review.[Footnote 5] In March 2006,
DOJ began the Litigation Case Management System (LCMS) project,
intended to replace litigating components' individual case management
systems, including ICM, with a single, integrated case management
system for DOJ. However, as of September 2009, DOJ was uncertain if
LCMS would be implemented in six of the seven litigating components,
including the Division, raising questions as to whether the Division
will need to continue to rely on ICM.[Footnote 6]
My comments are based on our October and September 2009 reports on the
enforcement efforts of the four sections within the Division[Footnote
7] and the case management system the Division uses to track and manage
these efforts.[Footnote 8] My testimony will discuss the following key
issues in our reports: (1) the activities that the Division undertook
from fiscal years 2001 through 2007 to implement its enforcement
responsibilities through each of the four sections and (2) additional
data that could be collected using ICM to assist in reporting on the
sections' enforcement efforts. Our September 2009 report also includes
a discussion on the extent to which the Division has conducted and
documented assessments of ICM's performance since its implementation.
[Footnote 9]
For our reports, we analyzed DOJ documents, such as annual reports,
hearing statements, speeches, and budget documents, that described the
Division's enforcement efforts (including special initiatives and areas
of focus) from fiscal years 2001 through 2007. We also analyzed data
from ICM on the matters initiated and cases pursued by each section for
the 7-year period. We assessed the accuracy, completeness, and
reliability of ICM data by analyzing data on matters initiated and
closed and cases pursued by the four sections from fiscal years 2001
through 2007. To supplement our analysis and further assess the
reliability of the data, we compared ICM data with information
contained in documentation, such as correspondence included in files,
for a nongeneralizable sample of closed matters from ICM data for each
of the four sections.[Footnote 10] Because our samples were not
representative, we were unable to generalize the results to all closed
matters the sections investigated during the period of our review.
Nevertheless, our file reviews provided examples of how the ICM matter
data compared to the same information in the matter files, how the
sections investigated matters, and why the sections closed them. We
interviewed senior officials in DOJ's Justice Management Division,
which is the management arm of DOJ; the Acting Assistant Attorney
General for the Division; and Division information technology
officials, who are the Division officials responsible for managing and
maintaining ICM. We also interviewed section chiefs, deputy chiefs, and
other section staff to obtain information on the four sections'
enforcement efforts during the 7-year period and how they used ICM to
manage and report on these efforts. We conducted this work in
accordance with generally accepted government auditing standards. More
detail about our scope and methodology is included in our September
2009 and October 2009 reports.[Footnote 11]
Information on Employment Litigation, Housing and Civil Enforcement,
Voting, and Special Litigation Sections' Enforcement Efforts from
Fiscal Years 2001 through 2007:
Employment Litigation Section:
From fiscal years 2001 through 2007, the Employment Litigation Section
initiated more than 3,200 matters and filed 60 cases as plaintiff under
federal statutes prohibiting employment discrimination.[Footnote 12]
About 90 percent of the matters initiated (2,846 of 3,212) and more
than half of the cases filed (33 of 60) alleged violations of section
706 of Title VII of the Civil Rights Act, which involves individual
claims of employment discrimination.[Footnote 13] Much of the Section's
matters are driven by what the Section receives from other agencies.
During the 7-year period, about 96 percent of the matters (3,087 of
3,212) initiated were as a result of referrals from the Equal
Employment Opportunity Commission and the Department of Labor. The
number of matters initiated under section 706 and the Uniformed
Services Employment and Reemployment Rights Act (USERRA) declined in
the latter fiscal years, which a Section Chief attributed to a decline
in referrals from these two agencies.[Footnote 14] In addition to
addressing discrimination against individuals, the Section also
initiated more than 100 pattern or practice matters at its own
discretion.[Footnote 15] Because the Section did not require staff to
maintain information in ICM on the subjects (e.g., harassment and
retaliation) of the matters or the protected class (e.g., race and
religion) of the individuals who were allegedly discriminated against,
we could not determine this information for more than 80 percent of the
matters the Section closed from fiscal years 2001 through 2007.
According to Section officials, staff are not required to do so because
the Section does not view this information as necessary for management
purposes. The Section also does not systematically collect information
in ICM on the reasons matters were closed; therefore, we were not able
to readily determine this information for the approximately 3,300
matters the Section closed over the time period of our review. Division
officials stated that when planning for ICM's implementation with
Section officials, the Division did not consider requiring sections to
provide protected class and subject data or the need to capture in ICM
the reasons that matters are closed.[Footnote 16] However, by
conducting interviews with agency officials and reviewing files for a
nongeneralizable sample of 49 closed matters, we were able to determine
that the reasons the Section closed these matters included, among
others, the facts in the file would not justify prosecution, the issue
was pursued through private litigation, and the employer provided or
offered appropriate relief on its own.
In addition to the matters initiated, the Employment Litigation Section
filed 60 cases in court as plaintiff from fiscal years 2001 through
2007, and filed more than half (33 of 60) under section 706 of Title
VII. According to a Section Chief and Deputy Section Chief, the primary
reason for pursuing a case was that the case had legal merit. Other
priorities, such as those of the Assistant Attorney General, may also
influence the Section's decision to pursue particular kinds of cases.
For example, according to Section officials, following the terrorist
attacks of September 11, 2001, the Assistant Attorney General asked the
various sections within the Division to make the development of cases
involving religious discrimination a priority. During the 7-year
period, the majority of the section 706 cases (18 of 33) involved sex
discrimination against women, and one-third (11 of 33) involved claims
of race discrimination, with six cases filed on behalf of African
Americans and five cases filed on behalf of whites.[Footnote 17] In
addition to these 33 cases, the Section filed 11 pattern or practice
cases. Most of the 11 pattern or practice cases involved claims of
discrimination in hiring (9 of 11) and the most common protected class
was race (7 of 11), with four cases filed on behalf of African
Americans, two on behalf of whites,[Footnote 18] and one on behalf of
American Indians or Alaska Natives.[Footnote 19] In July 2009, Section
officials told us that given that the Assistant Attorneys General who
authorized suits from fiscal years 2001 through 2007 and the Section
Chief who made suit recommendations to the Assistant Attorneys General
during that period are no longer employed by DOJ, it would be
inappropriate for them to speculate as to why the Section focused its
efforts in particular areas.
Housing and Civil Enforcement Section:
From fiscal years 2001 through 2007, the Housing and Civil Enforcement
Section initiated 947 matters and participated in 277 cases under
federal statutes prohibiting discrimination in housing, credit
transactions, and certain places of public accommodation (e.g.,
hotels). The Section has the discretion to investigate matters and
bring cases under all of the statutes it enforces, with the exception
of certain cases referred under the Fair Housing Act (FHA)[Footnote 20]
from the Department of Housing and Urban Development (HUD), which the
Section is statutorily required to file.[Footnote 21] The Section,
however, has discretion about whether to add a pattern or practice
allegation to these HUD-referred election cases, if supported by the
evidence. Furthermore, the Section has the authority and discretion to
independently file pattern or practice cases and to pursue referrals
from other sources. During the 7-year period, the Section initiated
more matters (517 of 947) and participated in more cases (257 of 277)
involving discrimination under the FHA than any other statute or type
of matter or case. The Section initiated nearly 90 percent of the FHA
matters (456 of 517) under its pattern or practice authority; these
primarily alleged discrimination on the basis of race or disability and
involved land use/zoning/local government or rental issues. According
to Section officials, the large number of land use/zoning/local
government matters it initiated was due to the Section regularly
receiving referrals from HUD and complaints from other entities on
these issues. Additionally, Division officials identified that a
Section priority during the 7-year period was to ensure that zoning and
other regulations concerning land use were not used to hinder the
residential choices of individuals with disabilities. During this time,
the Section experienced a general decline in HUD election matters, with
the Section initiating the fewest number of total matters, 106, in
fiscal year 2007. Section officials attributed the decrease, in part,
to a decline in HUD referrals because state and local fair housing
agencies were handling more complaints of housing discrimination
instead of HUD. The Section initiated the second largest number of
matters (252 of 947) under the Equal Credit Opportunity Act (ECOA).
[Footnote 22] About 70 percent (177 of 252) of these ECOA matters
included allegations of discrimination based on age, marital status, or
both.
The majority (250 of 269) of the cases that the Section filed as
plaintiff included a claim under the FHA. Similar to the Employment
Litigation Section, the Housing Section considers legal merit and
whether the plaintiff has the resources to proceed on his or her own
should the Section choose not to get involved, among other reasons,
when deciding whether to pursue a matter as a case. The number of cases
filed by the Section each year generally decreased from fiscal years
2001 through 2007--from 53 to 35--which, similar to matters, Section
officials generally attributed to fewer HUD referrals.[Footnote 23] The
FHA cases primarily involved rental issues (146). According to Section
officials, the number of rental-related issues is reflective of larger
national trends in that discrimination in rental housing may be more
frequently reported or easier to detect than in home sales. Most of the
FHA cases alleged discrimination on the basis of disability (115) or
race (70)--66 of which involved racial discrimination against African
Americans. The Section filed 9 cases under ECOA, of which 5 were in
combination with the FHA. All 9 complaints involved lending issues.
Seven of the 9 complaints included at least one allegation of racial
discrimination and 4 included at least one allegation of discrimination
on the basis of national origin/ethnicity.[Footnote 24]
Voting Section:
From fiscal years 2001 through 2007, the Voting Section initiated 442
matters and filed 56 cases to enforce federal statutes that protect the
voting rights of racial and language minorities,[Footnote 25] disabled
and illiterate persons, and overseas and military personnel, among
others. The Voting Section has the discretion to initiate a matter or
pursue a case under its statutes, with the exception of the review of
changes in voting practices or procedures, which it is statutorily
required to conduct under section 5 of the Voting Rights Act
(VRA).[Footnote 26] According to Section officials, the Section had as
its priority the enforcement of all the statutes for which it was
responsible throughout the period covered by our review.[Footnote 27]
However, Section and Division officials identified shifts in the
Section's priorities beginning in 2002. For example, the Assistant
Attorney General in place from November 2005 through August 2007 stated
that since 2002, the Section had increased its enforcement of the
minority language provisions of the VRA and instituted the most
vigorous outreach efforts to jurisdictions covered by the minority
language provisions of the act. During the 7-year period, the Section
initiated nearly 70 percent of VRA matters (246 of 367) on behalf of
language minority groups, primarily Spanish speakers (203 of 246). The
Section also initiated 162 matters under section 2 of the VRA.[Footnote
28] The Section initiated about half of these matters on behalf of
language minority groups (80), primarily Spanish speakers (71), and
about half on behalf of racial minorities (88 of 162), primarily
African American voters (71 of 88).[Footnote 29]
During the 7-year period, the Voting Section filed 56 cases, primarily
under the VRA (39).[Footnote 30] The majority of the cases the Section
filed in court under the VRA were on behalf of language minority groups
(30 of 39), primarily Spanish speakers (27). The Acting Assistant
Attorney General reported in September 2008 that the Division had
brought more cases under the VRA's minority language provisions during
the past 7 years--a stated priority--than in all other years combined
since 1975. While cases involving language minority groups were filed
under various VRA provisions, the largest number of cases (24 of 30)
involved claims under section 203[Footnote 31] alleging that the
covered jurisdiction had failed to provide voting-related materials or
information relating to the electoral process in the language of the
applicable minority group. The Section filed 13 cases involving a claim
under section 2 of the VRA--5 on behalf of language minority groups and
10 on behalf of racial minority groups (6 on behalf of Hispanics, 3 on
behalf of African Americans, and 1 on behalf of whites).[Footnote 32]
In October 2007, the Section Chief who served from 2005 through late
2007 told us that while at-large election systems that discriminated
against African Americans remained a priority of the Section, not many
of these systems continued to discriminate, and new tensions over
immigration had emerged; therefore, the Section had been pursuing cases
of voting discrimination against citizens of other minority
groups.[Footnote 33] However, in September 2009, Voting Section
officials stated that while many at-large election systems that diluted
minority voting strength have been successfully challenged, the Section
continued to identify such systems that discriminate against African
American, Hispanic, and Native American residents in jurisdictions
throughout the country and that taking action against at-large election
systems remained a high priority for the Section. The Section also
carried out its responsibilities under section 5 of VRA, which requires
certain jurisdictions covered under the act to "preclear" changes to
voting practices and procedures with DOJ or the United States District
Court for the District of Columbia to determine that the change has
neither the purpose nor the effect of discriminating against protected
minorities in exercising their voting rights. The Section reported that
over the 7-year period it made 42 objections to proposed changes,
[Footnote 34] of which almost 70 percent (29 of 42) involved changes to
redistricting plans. More than half (17) of the 29 objections were made
in fiscal year 2002, following the 2000 census, and two were made from
fiscal years 2005 through 2007.[Footnote 35]
Special Litigation Section:
From fiscal years 2001 through 2007, the Special Litigation Section
initiated 693 matters and filed 31 cases as plaintiff to enforce
federal civil rights statutes in four areas--institutional conditions
(e.g., protecting persons in nursing homes), conduct of law enforcement
agencies (e.g., police misconduct), access to reproductive health
facilities and places of worship, and the exercise of religious freedom
of institutionalized persons.[Footnote 36] Because the Section had
discretion to pursue an investigation or case under all of the statutes
it enforced, it considered all of its work to be self-initiated. Of the
matters initiated and closed (544 of 693), most involved institutional
conditions (373) and conduct of law enforcement agencies (129).
Of the 31 cases that the Section filed as plaintiff, 27 alleged a
pattern or practice of egregious and flagrant conditions that deprived
persons institutionalized in health and social welfare (13), juvenile
corrections (7), and adult corrections (7) facilities of their
constitutional or federal statutory rights, and 3 cases involved the
conduct of law enforcement agencies. According to Section officials, in
deciding whether or not to pursue a case, they considered the
conditions in a particular facility or misconduct of a particular
police department and whether the system (e.g., state correctional or
juvenile justice system) or department alleged to have violated the
statute had taken corrective action or instead had accepted the
behavior in question as its way of doing business. However, they said
that even if the system or department were taking corrective action,
the Section might pursue a case depending on the severity of the
situation (e.g., sexual abuse) or if Section officials believed that
the facility or local entity were incapable of addressing the problem.
Additionally, according to Section officials, the Section sought to
ensure its work reflected geographic diversity. Our analysis of the 31
plaintiff cases showed that the Section had filed cases in 21 states
and the District of Columbia. During the 7-year period, the Section did
not file any cases involving violations of the exercise of religious
freedom of institutionalized persons under the Religious Land Use and
Institutionalized Persons Act (RLUIPA).[Footnote 37] Section officials
stated that there was a time when the Section's enforcement of RLUIPA
was directed to be a lower priority than its enforcement of other
statutes.[Footnote 38] However, in April 2009, these officials told us
that the Section was reviewing a number of preliminary inquires under
RLUIPA, but had not yet filed any complaints because it was still
investigating these matters.
By Requiring Sections to Collect Data on Protected Class, Subject, and
Reasons for Closing Matters in Its Case Management System, the Division
Could Provide Better Accountability to Congress on Its Enforcement
Efforts:
As previously discussed, information regarding the specific protected
classes and subjects related to matters and cases and the reasons for
closing matters were not systematically maintained in ICM because the
Division did not require Sections to capture these data.[Footnote 39]
As a result, the availability and accuracy of protected class and
subject data--information that is key to ensuring that the Division
executes its charge to enforce statutes prohibiting discrimination on
the basis of protected class--varied among the sections. Additionally,
neither we nor the Sections could systematically identify the Sections'
reasons for closing matters, including the number of instances in which
the Section recommended to proceed with a case and Division management
did not approve the Section's recommendation.
By collecting additional data on protected class and subject in ICM,
the Division could strengthen its ability to account for the four
sections' enforcement efforts. In October 2006, the Principal Deputy
Assistant Attorney General issued a memorandum to section chiefs
stating that Division leadership relies heavily on ICM data to, among
other things, report to Congress and the public about its enforcement
efforts, and should be able to independently extract the data from ICM
needed for this purpose. However, over the years, congressional
committees have consistently requested information for oversight
purposes related to data that the Division does not require Sections to
collect in ICM, including information on the specific protected classes
and subjects related to matters and cases. While ICM includes fields
for collecting these data, the Division has not required sections to
capture these data. Some section officials said that they did not
believe it was necessary to maintain this information in ICM for
internal management purposes. As a result, we found that the
availability and accuracy of these data varied among the sections. For
example, when comparing data obtained from the 60 complaints the
Employment Litigation Section filed in court with data maintained in
ICM, we identified that the protected class and subject data in ICM
were incomplete or inaccurate for 12 and 29 cases, or about 20 and 48
percent, respectively. Additionally, we found that the Section's
protected class and subject data were not captured in ICM for 2,808 and
2,855 matters, or about 83 and 85 percent, respectively. In contrast,
according to the Housing and Civil Enforcement Section, it requires
that protected class and subject data be recorded in ICM for all
matters and cases, and we found that these data were consistently
recorded in ICM.
To help respond to information inquiries, all four sections maintain
data in ancillary data systems, although some of the data are also
recorded in ICM. For example, the Employment Litigation Section
maintains broad information on protected class and uses this
information in conjunction with data in ICM to report on its
enforcement efforts. Section officials reported using ancillary data
systems in part because it was easier to generate customized reports
than using ICM. We previously reported that agencies with separate,
disconnected data systems may be unable to aggregate data consistently
across systems, and are more likely to devote time and resources to
collecting and reporting information than those with integrated
systems.[Footnote 40] Requiring sections to record these data in ICM
would assist the Division in, among other things, responding to
inquiries from Congress by ensuring access to readily available
information and by reducing reliance on ancillary data systems.
Additionally, congressional committees have requested information
regarding reasons the Division did not pursue matters, including
instances in which Division managers did not approve a section's
recommendation to proceed with a case. However, ICM does not include a
discrete field for capturing the reasons that matters are closed and
Division officials we interviewed could not identify instances in which
Division managers did not approve a section's recommendation to proceed
with a case. Moreover, sections do not maintain this information in
other section-level information systems. ICM does have a comment field
that sections can use to identify the reasons matters are closed,
although these data are not required or systematically maintained in
ICM and the Division could not easily aggregate these data using the
comment field.[Footnote 41] According to Division officials, when
Division and section officials were determining which data were to be
captured in ICM, they did not consider the need to include a discrete
field to capture the reasons that matters were closed. As a result, we
had to review Division matter files to determine the reasons that
matters were closed, and in some instances this information was not
contained in the files. For example, for 7 of the 19 section 706 closed
matter files we reviewed for the Employment Litigation Section, the
reason the matter was closed was not contained in the file
documentation we received, and Section officials attributed this to a
filing error. Moreover, Division officials stated that because the
Division did not track the reasons for closing matters in ICM, they
have had to review files and talk with section attorneys and managers
to obtain this information. They said that it was difficult to compile
this information because of turnover among key section officials.
Capturing information on the reasons matters were closed in the
Division's case management system would facilitate the reporting of
this information to Congress and enable the Division to conduct a
systematic analysis of the reasons that matters were closed. This would
also help the Division to determine whether there were issues that may
need to be addressed through actions, such as additional guidance from
the Division on factors it considers in deciding whether to approve a
section's recommendation to pursue a case.
In our September 2009 report, we recommended that to strengthen the
Division's ability to manage and report on the four sections'
enforcement efforts, the Acting Assistant Attorney General of the
Division, among other things, (1) require sections to record data on
protected class and subject in the Division's case management system in
order to facilitate reporting of this information to Congress, and (2)
as the Division considers options to address its case management system
needs, determine how sections should be required to record data on the
reasons for closing matters in the system in order to be able to
systematically assess and take actions to address issues identified.
DOJ concurred with our recommendations and, according to Division
officials, the Division plans to (1) require sections divisionwide to
record data on protected class and subject/issue in its case management
system by the end of calendar year 2009 and (2) upgrade the system to
include a field on reasons for closing matters and require sections
divisionwide to record data in this field.
Mr. Chairman, this concludes my statement. I would be pleased to
respond to any questions that you or other members of the subcommittee
may have.
Contacts and Acknowledgements:
For questions about this statement, please contact Eileen R. Larence at
(202) 512-8777 or larencee@gao.gov. Contact points for our Offices of
Congressional Relations and Public Affairs may be found on the last
page of this statement. Individuals making key contributions to this
testimony are Maria Strudwick, Assistant Director, David Alexander; R.
Rochelle Burns; Lara Kaskie; Barbara Stolz; and Janet Temko.
[End of section]
Footnotes:
[1] The Special Litigation Section is responsible for the enforcement
of federal civil rights statutes in four primary areas: conditions of
institutional confinement, conduct of law enforcement agencies, access
to reproductive health facilities and places of religious worship, and
the exercise of religious freedom of institutionalized persons.
[2] The Division has 11 sections--10 program-related sections and an
Administrative Management section.
[3] Pub. L. No. 85-315, 71 Stat. 634.
[4] GAO, Civil Rights Division: Selection of Cases and Reasons Matters
Were Closed, [hyperlink, http://www.gao.gov/products/GAO/GGD-00-192]
(Washington, D.C.: Sept. 2000).
[5] GAO, Civil Rights Division: Policies and Procedures for
Establishing Litigation Priorities, Tracking and Managing Casework, and
Disseminating Litigation Results, [hyperlink,
http://www.gao.gov/products/GGD-00-58R] (Washington, D.C.: Feb. 2000)
and [hyperlink, http://www.gao.gov/products/GAO/GGD-00-192].
[6] DOJ's seven litigating components in place at the time LCMS was
planned were the Antitrust, Civil, Civil Rights, Criminal, Environment
and Natural Resources, and Tax Divisions and the Executive Office for
United States Attorneys, which is the administrative office for the 94
U.S. Attorneys Offices.
[7] GAO, U.S. Department of Justice: Information on Employment
Litigation, Housing and Civil Enforcement, Voting, and Special
Litigation Sections' Enforcement Efforts from Fiscal Years 2001 through
2007, [hyperlink, http://www.gao.gov/products/GAO-10-75] (Washington,
D.C.: Oct. 23, 2009).
[8] GAO, DOJ's Civil Rights Division: Opportunities Exist to Improve
Its Case Management System and Better Meet Its Reporting Needs,
[hyperlink, http://www.gao.gov/products/GAO-09-938R] (Washington, D.C.:
Sept. 30, 2009).
[9] [hyperlink, http://www.gao.gov/products/GAO-09-938R]. We
recommended that the Acting Assistant Attorney General of the Division
conduct annual assessments of the performance of the Division's case
management system and ensure that these assessments are documented and
maintained so they can be used to improve the performance of the
system. DOJ agreed.
[10] A nongeneralizable sample may be either a nonprobability sample
where observations are selected in a manner that is not completely
random or a probability sample where random sampling is used, but the
sample size is too small to allow the results to be generalized to the
broader population.
[11] [hyperlink, http://www.gao.gov/products/GAO-10-75] and [hyperlink,
http://www.gao.gov/products/GAO-09-938R.
[12] [hyperlink, http://www.gao.gov/products/GAO-10-75] includes
information on the process the Sections follow for handling matters and
cases.
[13] Section 706 provides the Attorney General with the authority to
file suit based upon an individual charge of discrimination against a
state or local government employer that the Equal Employment
Opportunity Commission has referred to DOJ. 42 U.S.C. § 2000e-5.
[14] USERRA prohibits discrimination in employment and related
practices based on military service as well as protects individuals who
have not been timely and properly reemployed following their return
from military service. 38 U.S.C. §§ 4301-35. The Attorney General
transferred responsibility for USERRA enforcement to the Civil Rights
Division in September 2004.
[15] Section 707 of Title VII of the Civil Rights Act, 42 U.S.C. §
2000e-6, provides the Attorney General with authority to bring lawsuits
against state and local governments where there is reason to believe
that there has been a pattern or practice of employment discrimination.
Pattern or practice cases attempt to show that the defendant
systematically engaged in discriminatory activities.
[16] Similar to the Employment Litigation Section, because the other
three sections did not systemically collect information in ICM on the
reasons for closing matters, we could not systematically identify their
reasons for closing matters.
[17] Individual cases can involve multiple protected classes and
subjects.
[18] In July 2005, the Section filed its first case involving an
allegation of a pattern or practice of discrimination against white
males.
[19] The Section also filed 16 cases under USERRA from fiscal year 2005
through 2007.
[20] The FHA allows individuals who believe they have been injured by a
discriminatory housing practice to file complaints with the Department
of Housing and Urban Development and DOJ to bring suit where there is
reason to believe that a person or entity has engaged in a pattern or
practice of discrimination. 42 U.S.C. § 3601 et seq.
[21] DOJ is required to file HUD-referred election cases in federal
district court. These nondiscretionary referrals are called "election
cases" because either the complaining party or the respondent has
elected to have the case heard in federal court rather than through a
HUD administrative hearing.
[22] 15 U.S.C. § 1691 et seq. The 252 matters include those initiated
either solely under ECOA or in combination with other statutes. During
the 7-year period, the Section also had responsibility for enforcing
provisions of Title II of the Civil Rights Act, 42 U.S.C. §§ 2000a to a-
6. Additionally, in the spring of 2001, the Section received
responsibility for enforcing the land use provisions of the Religious
Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq.;
and, in July 2006, received responsibility for enforcing the
Servicemembers Civil Relief Act, 50 U.S.C. App. §§ 501-96. The Section
is also responsible for enforcing several statutes that prohibit
discrimination in, among other things, programs where the operator of
the program receives federal funds.
[23] Among HUD-referred cases are election cases, which the Section is
statutorily required to file.
[24] Four of the 9 complaints included allegations of discrimination
both on the basis of race and national origin.
[25] The term "language minorities" or "language minority group" means
persons who are American Indian, Asian American, Alaskan Natives, or of
Spanish heritage. 42 U.S.C § 1973aa-1a(e).
[26] Under section 5 of the Voting Rights Act, state and local
jurisdictions in certain parts of the country may not change their
voting practices or procedures, which include moving a polling place or
changing district lines in the county, until they obtain federal
"preclearance" that the change has neither the purpose nor the effect
of discriminating against protected minorities in exercising their
voting rights. Preclearance may be obtained either from the United
States District Court for the District of Columbia or the Attorney
General. 42 U.S.C. § 1973c.
[27] In addition to the VRA, the Section enforced the National Voter
Registration Act, 42 U.S.C. §§ 1973gg-1973gg-10; the Uniformed and
Overseas Citizens Absentee Voting Act, 42 U.S.C. §§ 1973ff-1973ff-6;
and beginning in fiscal year 2002, the Help America Vote Act of 2002,
42 U.S.C. §§ 15301-54. GAO-10-75 includes a discussion of the Section's
enforcements efforts related to these acts.
[28] Section 2 prohibits discriminatory practices or procedures that
result in a denial or abridgment of the right to vote on account of
race, color, or membership in a language minority group. 42 U.S.C. §
1973.
[29] Seven matters involved both a language minority and a racial
minority group and in one matter the specific protected class was not
identified.
[30] The Section also filed 10 cases involving the provisions of Help
America Vote Act, subsequent to its enactment in 2002; 10 cases
involving allegations under provisions of the National Voter
Registration Act; and seven cases involving allegations under the
Uniformed and Overseas Citizens Absentee Voting Act on behalf of
overseas voters.
[31] 42 U.S.C. § 1973aa-1a.
[32] Two cases involved both racial and language minority groups.
[33] An at-large election system is one in which a public official is
selected from the whole of a political unit or election district rather
than from a subdivision of the larger unit.
[34] Some objections addressed more than one proposed change.
[35] The Section reported that it made one objection in fiscal year
2001, five in fiscal year 2003, and four in fiscal year 2004. Section
officials explained that the number of redistricting plans submitted
for review had increased early in the decade (2001 through 2003),
following the release of the 2000 Census, as has occurred after each
census.
[36] According to Special Litigation Section officials, the Section did
not experience significant changes in its statutory responsibilities
during the 7-year period.
[37] 42 U.S.C. § 2000cc et seq.
[38] These provisions differ from the land use provisions enforced by
the Housing and Civil Enforcement Section.
[39] Because of the nature of the statutes enforced by the section, the
data for protected class are not relevant for most of the work done by
the Special Litigation Section. Given the statutory responsibilities of
the section, it requires staff to capture data in ICM on the type of
facility involved in a matter or case and, where appropriate, protected
class information.
[40] GAO, Telecommunications: FCC Has Made Some Progress in the
Management of Its Enforcement Program but Faces Limitations, and
Additional Actions Are Needed, [hyperlink,
http://www.gao.gov/products/GAO-08-125] (Washington, D.C.: Feb. 15,
2008).
[41] In contrast, another component within DOJ, the Executive Office
for United States Attorneys (EOUSA), requires the litigating sections
it supervises to capture information on the reasons for declining
matters in its case management system, the Legal Information Office
Network System. According to EOUSA, it uses the information internally
to understand why matters are declined and make management decisions.
For example, according to EOUSA officials, if matters are declined
because of weak evidence, U.S. Attorney's offices could work with law
enforcement to make improvements in practices used to collect evidence.
[End of section]
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