On Sept. 23, I testified in Congress concerning the administration's policy on Justice Department enforcement of equal employment opportunity laws. On Sept. 24, The Post, citing my testimony, reported that the administration "will not go to court to win class action decisions in job bias cases," but rather would seek to enforce federal civil rights laws "on a case- by-case basis." The Post also reported subcommittee chairman Augustus F. Hawkins' remark: "If you're going to proceed this way, you're going to have to triple the staff (of the Justice Department's Civil Rights Division) because the caseload will increase." The article shows a fundamental misunderstanding of my testimony and, I fear, conveys to the public the erroneous impression that the Justice Department will henceforth bring a separate lawsuit on behalf of each individual employee victimized by employment discrimination based on race, sex, religion or national origin. The issue of equal employment opportunity is too important and too sensitive to permit public misperception of the administration's policies in this critical area to go uncorrected.
The confusion shown by Hawkins' quoted remarks in The Post's story apparently springs from a misunderstanding of the subtle legal distinction between a "class action" suit and a "pattern or practice" suit. Class action suits are brought by private litigants and seek to redress a common injury suffered by a "class" of persons. The Justice Department is not now and has never been authorized to bring class action suits. Instead, it is authorized under Title VII of the 1964 Civil Rights Act and other civil rights laws to bring suits against state and local authorities based on a claim of a "pattern or practice" of unlawful employment discrimination.
When the department prevails in such a lawsuit, each employee or job applicant unlawfully discriminated against by the employer is entitled to enter the litigation and prove that he or she is entitled to affirmative relief such as back pay, retroactive seniority, and hiring and promotion priority. For example, in a "pattern or practice" suit currently being litigated, more than 600 persons have already sought to enter the litigation and file individual claims of injury following the district court's finding of a pattern of racially and sexually discriminatory practices in several job categories. The department will examine each of those claims and pursue those that are valid.
As I made clear in my testimony, the Justice Department does not intend to retreat one step from its enforcement of "pattern or practice" lawsuits under the civil rights laws. Not only will there be no change of policy to an individualized case approach as suggested in The Post article but, in my view, such a change would be extremely unwise.
The policy change, as I stated in my testimony, concerns only the range of remedies the department will seek in court following a finding of employment discrimination. In the past, the department has routinely sought as an element of relief in this area, imposition of mandatory race and sex hiring goals designed to benefit a group of persons, without regard to whether those preferred are themselves victims of the employer's discriminatory practices. We no longer will insist on or in any respect support the use of numerical or statistical formulas providing to non-victims of discrimination preferential treatment based on race, sex, national origin or religion. Such race-conscious or sex-conscious preferences are, as history has shown, divisive techniques that go well beyond the remedy that is necessary to redress, in full measure, those injured by a particular employer's discriminatory practices.
Henceforth, the department will emphasize a three-pronged remedial formula consisting of 1) specific affirmative relief for individual victims of proven discriminatory practices; 2) increased recruitment efforts directed at the group or groups previously disadvantaged, including, where appropriate, recruitment goals so as to bring into the employer's pool of qualified applicants increased numbers of minorities and women; and 3) injunctive relief requiring color-blind and sex-neutral nondiscriminatory employment practices in the future. Non-discriminatory hiring and promotion from an appropriate pool of applicants will, we believe, fully correct the effects of past discriminatory practice.