(50) In a bureaucratic bind
(HUD lawsuit) by Roger Clegg (08/22/02)
Adversity.Net, Inc. for Victims of Reverse Discrimination
In a bureaucratic bind (08/22/02)

Excerpt: Washington Times Commentary
(Aug. 22, 2002)
by Roger Clegg

           "On Aug. 8, the Department of Housing and Urban Development (HUD) and the Equal Employment Opportunity Commission (EEOC) were sued [in a class action by a white employee of HUD, Dennis Worth, and all others similarly situated].  The [Worth] lawsuit claims that the agencies violated the civil rights laws that prohibit employment discrimination based on race, ethnicity and sex.  This lawsuit, which is likely to create a significant legal precedent, puts the Department of Justice in an awkward position.

          "When the federal government is sued for discrimination in its capacity as an employer, the Justice Department has an obligation to represent the government in court.  But the Justice Department also has an obligation to enforce the civil rights laws ... There is no way that the department can be 100 percent effective in both jobs at once.

           "The best way for the Justice Department to strike the appropriate balance is by asking itself what the right answer is as a matter of law — that is, what the applicable statutes and other laws actually mean.

          "For instance, HUD is accused of hiring and promoting in a way that uses preferences based on race, ethnicity and sex.   The Justice Department's civil rights enforcement ability is not undermined if it simply argues, as a matter of fact, that no such preferences were used.  So far, so good.

          "But it's not good if the Justice Department argues as a matter of law that a "goal" is not a racial classification, or that remedial preferences are justified whenever there is an imbalance in any job subcategory, or that there is a "diversity" (as well as a remedial) exception to Title VII of the Civil Rights Act of 1964.  [If DOJ argues in this vein,] [t]hen it is making arguments and encouraging the development of case law that will be used by future discriminators ...

          "... [T]he leadership at the Justice Department needs to focus now on delineating acceptable and unacceptable legal arguments to make in employment discrimination cases involving affirmative discrimination [often referred to as "reverse discrimination" or as "preferential treatment discrimination"].

          "The bureaucracies at HUD and the EEOC may complain that they are the "clients" and that "their" lawyers at the Justice Department must stick by them.  Sorry, but when the Justice Department is forced to choose between enforcing the civil rights laws and helping out bureaucrats caught breaking those laws, it's not a close question."

(Roger Clegg is general counsel of the Center for Equal Opportunity in Virginia. He served at the Justice Department from 1982 to 1993.)

Excerpted from Roger Clegg's commentary as it appeared in the Washington Times on 8/22/02:
"In a bureaucratic bind".

Last known link to the original Clegg commentary:

Recommended Additional Reading:

Details of HUD Reverse Discrimination Lawsuit (web posted 8/11/02)

New OPM Report: Federal Agencies Vastly Over Hire Minorities! (web posted 7/23/02)

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