Trump Justice Dept. Workplace Bias Lawsuits Show Priorities

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By Jon Steingart

The Justice Department filed three employment discrimination lawsuits since President Donald Trump took office 14 months ago, a Bloomberg Law review of federal court records shows.

The DOJ’s filings are significant because of the administration priorities they communicate, according to two lawyers who counsel and represent private sector employers in discrimination matters. In the most recent case, the agency sued on behalf of a nursing care center employee who said she was forced to receive a flu shot despite her religious objections. After the vaccination, she feared going to hell, according to the March 6 complaint against the Wisconsin county that owns the center.

“To the extent it reflects the Trump administration’s focus in terms of civil rights and the kind of rights it wants to enforce, this sends a message to the world” on what to expect going forward, Scott Rabe, a New York-based attorney, told Bloomberg Law.

The Justice Department is required to enforce laws. That doesn’t change when there is a change in management at the agency or in the White House.

But the agency can choose how to allocate its resources in ways that nudge courts toward adopting interpretations in line with the administration’s view, said Sam Schwartz-Fenwick, a Chicago-based attorney.

“All the Department of Justice is doing is advocating its opinion and its position,” Schwartz-Fenwick told Bloomberg Law. “It’s up to the courts to decide what the law is,” he said. Rabe and Schwartz-Fenwick are partners with Seyfarth Shaw LLP.

“My biggest takeaway from this is that this is the kind of case the Department of Justice has chosen to get involved in,” Rabe said. “It will be interesting to see what types of novel arguments the Department of Justice will make in this case because part of the goal of this case is to help make law that’s consistent with the administration’s positions.”

The other lawsuits are a March 5 pregnancy discrimination complaint on behalf of a University of Baltimore employee and a Feb. 28 sexual harassment complaint on behalf of a female firefighter in Houston. The Justice Department is the only federal agency with authority under Title VII of the 1964 Civil Rights Act to file job discrimination lawsuits against state and local government employers.

Untapped Enforcement Opportunities

The cases that the Justice Department isn’t litigating are also important, David Lopez, a former Equal Employment Opportunity Commission general counsel appointed by President Barack Obama, said. The department can decide not to prosecute a case and issue a right-to-sue letter to the individual claiming discrimination. Claimants can request one before the department finishes investigating a discrimination charge, effectively ending the agency’s involvement.

“If they’re going to sit on the case a long time and not return phone calls, it’s better to pull the case out and do it yourself,” Lopez said. Private sector lawyers have an ethical obligation to do what’s best for their clients, which isn’t necessarily a move that will advance the public interest, he said. Lopez left the EEOC to become a partner and attorney-in-charge of the Washington office of worker-side employment law firm Outten & Golden LLP. He also worked as a senior trial attorney with the Civil Rights Division’s Employment Litigation Section.

It would be problematic if the Civil Rights Division leaves enforcement opportunities on the table, Lopez said. “Then you’re really not doing your job,” he said.

It could be difficult for the public to learn about enforcement opportunities the Justice Department didn’t deliberate and didn’t pursue because of “all the assertions of privilege and government veils of secrecy,” Lopez said. “It really restricts the ability of the public to understand what’s going on in the public sector with the extent of discrimination,” he said.

“I think ideally the Civil Rights Division, Employment Litigation Section would continue to be active. I think they’ve always been a leader in terms of addressing systemic discrimination,” Lopez said. “For me it’s just really important to really emphasize that the career staff at DOJ—they’re really smart and really committed and it would be nice if they were allowed to do their jobs.”

The Justice Department didn’t respond to Bloomberg Law’s request for comment about how it chooses cases to litigate.

Referrals Different From Other Cases

Employment discrimination cases that are referred to the division by the EEOC may not reflect the administration’s agenda, said Bradley Schlozman, an acting assistant attorney general in charge of the Civil Rights Division during the George W. Bush administration. The EEOC refers discrimination cases involving state and local government employers to the Justice Department.

Rather than conveying a broader motive, the department’s choice of cases to litigate could simply reflect that a particular set of facts presents “a legitimate case” that can be won with the resources available, Schlozman told Bloomberg Law. In every administration, “you have finite resources so you end up deciding what your enforcement priorities are going to be,” he said.

“When a case comes on a referral like this, I wouldn’t necessarily tether it to the broader agenda that Department of Justice may have in terms of religious accommodation,” Schlozman said, referring to the flu shot religious accommodation case.

Attorney General Jeff Sessions wrote a religious liberty memorandum and implementation guidance for executive branch agencies in October, under instructions from President Donald Trump. The Justice Department added language to its U.S. Attorneys’ Manual in January that requires the country’s 93 U.S. attorneys’ offices to coordinate cases involving religious liberty with Washington. Religious liberty cases typically involve housing or zoning issues, such as where to locate a church or mosque, Schlozman said.

“Is it connected? If it is, I would say it’s a very loose connection just because of the nature of the 706 referral program,” Schlozman said. Section 706 is the provision in Title VII that grants the government authority to file a lawsuit based on a person’s charge of discrimination.

“In my experience on the 706 cases, we just took them as they came,” he said. “There typically was not a broader agenda.”

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