SUBCOMMITTEE ON THE CONSTITUTION

Committee on the Judiciary

U.S. House of Representatives

"Oversight of the Civil Rights Division of the U.S. Department of Justice"

Wednesday, February 25, 1998

2141 Rayburn House Office Building

9:30 a.m.

Testimony of Martha Davis, Legal Director,

NOW Legal Defense and Education Fund

EXECUTIVE SUMMARY

The Civil Rights Division of the U.S. Department of Justice has a significant role to play in protecting citizens from illegal discrimination and enforcing a broad range of civil rights laws. Under its current leadership, the Division is performing that role admirably.

Within the Justice Department, the Division serves as a catalyst for ensuring that civil rights enforcement is given a high priority, commensurate with the high priority put on civil rights by this Administration and the American people. In courts across the country, the Division has enforced a full spectrum of civil rights laws. In the area of women's rights, for example, these range from the Freedom of Access to Clinic Entrances Act, which bans violence at reproductive health clinics, to Title IX of the Education Amendments of 1972, which ensures gender equity in education. In each instance, the Division articulates the particular interest of the United States in protecting the civil rights of its citizens.

On some occasions, the Division takes a more conservative view of civil rights enforcement than the activist approach that advocates such as the NOW Legal Defense and Education Fund would urge. However, the importance of the Division's work to the ongoing enforcement of the nation's civil rights laws and protection of citizens from violations of their civil rights is unassailable. The Senate's speedy confirmation of Bill Lann Lee as Assistant Attorney General for Civil Rights and Congressional appropriation of increased funding for the operation of the Division are two additional steps that would immediately enhance the Division's already impressive record.

STATEMENT OF NOW LEGAL DEFENSE AND EDUCATION FUND⁽¹⁾

Mr. Chairman and members of the Committee,

Thank you for the opportunity to testify today regarding the Civil Rights Division of the U.S. Department of Justice. It is a pleasure to offer this testimony, since under its current leadership, the Division deserves high marks for its involvement in a broad range of civil rights enforcement efforts. Further, I am privileged to follow the testimony of the Acting Assistant Attorney General for Civil Rights, Bill Lann Lee, whose personal story of overcoming adversity and whose life-long record of protecting the civil rights of U.S. citizens are both well known.

The Division's Broad Range of Civil Rights Enforcement Efforts Recent debates concerning the Division's work have focused almost exclusively on the single issue of affirmative action. While promoting inclusion of women and minorities in all levels of the workplace is an important aspect of the Division's work, this singular focus has to tended provide a distorted picture of the Division's activities and responsibilities. In fact, the Division's work is much broader than that singular focus would suggest, and encompasses protection of a wide range of civil rights of all citizens.

In the area of women's rights alone, the Division is active in areas ranging from prosecuting arsonists at reproductive health clinics, to promoting equal educational opportunity for women and girls, to protecting women from gender-based hate crimes. For example:

• Prosecuting Violence Against Reproductive Health Clinics: The Division is the lead prosecuting agency involved in enforcement of the Freedom of Access to Clinic Entrances Act (FACE), 18 U.S.C. § 248, which bars violence at reproductive health clinics. The fatal bombing in Birmingham last month makes clear how critical FACE is to ensuring the safety of clinic workers, doctors and patients. As recently as February 11, the Division secured a guilty plea from Richard Thomas Andrews, who firebombed seven clinics in the western United States over a period of three years from 1992 to 1995. The dogged prosecution of this case sends a clear message to those who feel that their personal beliefs justify violent destruction of property and even murder.
• Providing Redress for Hate Crimes: The Division has also played an active role in defining new areas of civil rights which require redress through the criminal justice system. For example, the Civil Rights Division is a leader in efforts to work with Congress on bipartisan bills pending in both the House and Senate that would address hate crimes at the federal level by amending the existing statute to include crimes motivated by gender, disability, and sexual orientation. The bipartisan House bill is sponsored by Representatives McCollum, Conyers and Schumer. Significantly, the Division's approach to hate crimes has been appropriately sensitive to states' concurrent jurisdiction; federal criminal prosecution would be available only when local state authorities are unable or unwilling to prosecute. Further, the Division has taken a lead in providing training and assistance to local U.S. Attorneys handling hate crimes covered by existing law.
• Enforcing the Fair Housing Act: The Division's record of enforcement of the Fair Housing Act is similarly impressive. While few members of the public, or even lawyers, are aware of the protections that the Fair Housing Act provides to individuals discriminated against in housing on the basis of sex, the Division has repeatedly provided redress to those experiencing such discrimination. For example, between 1990 and 1996, the Division participated in approximately twenty cases involving sexual harassment in housing -- an issue that is particularly salient for low income women who have little possibility of moving if their landlord or superintendent embarks on a campaign of such threats and harassment.
• Ensuring Equal Access to Educational Opportunities: The Division has long monitored enforcement of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681(a), ensuring that women and girls have equal access to public educational opportunities. Title IX's impact on opportunities for girls is significant and measurable; we need only look to the Gold Medal for the U.S. Women's Hockey Team in the Olympics to see how far Title IX has brought us since 1972. However, Title IX reaches all aspects of education -- not just sports -- and we have far to go before we can claim to have achieved full equality. In particular, sexual harassment in schools continues to operate as a barrier to equal education for girls and boys. Recognizing this, the Division has participated in a number of cases addressing this issue. For example, in Murrell v. School District No. 1, currently pending in the Tenth Circuit Court of Appeals, the Division has argued that a school's failure to take action following a boy's sexual assault and ongoing harassment of one of his female classmates, violates both the U.S. Department of Education's guidelines regarding school responsibility to address sexual harassment and the school's obligations under Title IX.

Of course, the Division's achievements beyond the women's rights sphere -- in combating race discrimination, enforcing disability rights, protecting voting rights, and its other areas of responsibility -- are equally significant, reflecting the breadth and depth of the Division's dedication to enforcing the civil rights laws.

In sum, the Division is involved in a wide range of civil rights issues of critical importance to Americans. Its approach to civil rights is measured, and builds on this nation's longstanding commitment to ensuring equal opportunity for all. In some instances, the Division serves as a catalyst within the government, promoting attention and care to these issues. In others, the Division acts as a leader in its own right in enforcing and protecting civil rights.

The Division's Work on Affirmative Action

The Division's work on affirmative action, while only a small component of its overall efforts, is an important aspect of its work. In particular, affirmative action measures that enhance diversity in the workplace are critically important to women seeking equal opportunity in the job market.

The Division has taken what NOW LDEF would characterize as a cautious, measured view of the current law. The Division's position in prior cases -- that non-remedial, diversity-based affirmative action is permissible under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. -- enjoys considerable support in the law.⁽²⁾ The Division has gone no farther in articulating the basis for affirmative action programs than the Supreme Court precedent squarely permits.

Given the civil rights at stake when employers ignore the imperative of moving beyond stereotypes in hiring and promoting, the Division's attention to the role of affirmative action in advancing diversity is well-justified.

Specifically, in the absence of diversity policies to combat gender stereotyping, such stereotyping frequently affects the perception of women's role in the workforce.⁽³⁾ Research shows, for example, that managers more frequently rank women below men when evaluating the performance of identical subjects in controlled experiments.⁽⁴⁾ Such stereotyping creates and sustains glass ceilings that keep women from senior, policy-making posts.⁽⁵⁾

Gender stereotypes also confine many women to separate and unequal "women's work."⁽⁶⁾ Further, when work is performed mostly by women, employees earn lower salaries than when work is performed mostly by men.⁽⁷⁾ Thus, stereotyping also helps ensure that equal pay for equal work remains a distant goal.⁽⁸⁾

By hiring only "token" numbers of women, many employers perpetuate gender stereotyping. For example, research shows that when women are a small minority in the workforce, their performance ratings are consistently lower than those of their male counterparts, even after controlling for education, experience, and ability.⁽⁹⁾

Diversity in the workforce helps reduce stereotyping and promotes understanding of individual talents and abilities. Stereotyping decreases in diverse work environments as people learn to appreciate their co-workers' similarities and differences.⁽¹⁰⁾ Symphony orchestras, for example, were long made up exclusively of men.⁽¹¹⁾ When orchestras eliminated discrimination in hiring by holding auditions behind a screen, representation of women increased dramatically. As the percentage of women rose above token levels and neared half of the orchestra, musicians of both genders reported better interpersonal relations, job security, orchestra structure, and organizational stability. At the end of the study, researchers noted a "now-familiar pattern: an initial decline [in attitudes] followed by an upturn."⁽¹²⁾

Unless employers take active measures to advance women, however, men continue to hold the vast majority of management roles and rank-and-file positions in male-dominated jobs.⁽¹³⁾ A comprehensive diversity plan helps break down such stereotyping and ensures more equity in the workplace. The Division's work to promote such affirmative action plans is thus a critical component of promoting women's civil rights.

CONCLUSION

It would be unrealistic to suggest that the Civil Rights Division's work has not been hindered by the recent debates concerning its leadership. This is unfortunate, given the importance of the Division's mission. However, under Bill Lann Lee's leadership as Acting Director, the Division has pursued a measured and sound approach to civil rights enforcement, ensuring that citizens' civil rights are protected and defended in a broad range of areas. The Senate's speedy confirmation of Bill Lann Lee as Assistant Attorney General for Civil Rights and Congressional appropriation of increased funding for the operation of the Division are two additional steps that would immediately enhance the Division's already impressive record.

1. NOW Legal Defense and Education Fund is the oldest, national legal advocacy organization committed to protecting women's rights, founded in 1970.

2. See, e.g., Johnson v. Transportation Agency, 480 U.S. 616 (1986); United Steelworkers v. Weber, 443 U.S. 193 (1979).

3. See, e.g., Madeline E. Heilmann et al., Sex Stereotypes: Do They Influence Perceptions of Managers?, 10 J. SOC. BEHAV. & PERSONALITY 237, 247 (1995) (finding that women managers are characterized more negatively than men managers); Katherine A. Dodge et al., Requisite Management Characteristics Revisited: Two Decades Later, 10 J. SOC. BEHAV. & PERSONALITY 253, 259 (1995) (replicating and expanding on twenty-five years of research into employees' perceptions of middle managers to find continuing pro-male bias among male subjects).

4. See Asya Pazy, Persistence of Pro-Male Bias Despite Identical Information Regarding Causes of Success, 38 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 366, 373 (1986).

5. See GLASS CEILING COMMISSION, GOOD FOR BUSINESS: MAKING FULL USE OF THE NATION'S HUMAN CAPITAL 143 (1995) (in Fortune 200 companies, only 5% of senior managers are women). In 1996, women made up only 10% of corporate officers in Fortune 500 companies and held only 10.2% of seats on corporate boards. See 1996 Catalyst Census of Women Corporate Officers and Top Earners, FACT SHEET (Catalyst, New York, N.Y.), Oct. 23, 1996; Women Board of Directors of the Fortune 500, CATALYST CENSUS (Catalyst, New York, N.Y.), March 31, 1996, at 6. The glass ceiling also affects promotions to lower-level supervisory positions. See Marina A. Adler, Male-Female Power Differences at Work: A Comparison of Supervisors and Policymakers, 64 SOC. INQUIRY 37, 45 (1994).

6. See, e.g., Joan E. Manley, Sex-Segregated Work in the System of Professions: The Development and Stratification of Nursing, 36 SOC. Q. 297 (1995) (nursing's low status in the 19th century allowed women to enter the field, but resulting gender segregation prevents nurses from negotiating higher professional status).

7. See Matt L. Huffman & Steven C. Valasco, When More is Less: Sex Composition, Organizations, and Earnings in U.S. Firms, 24 WORK & OCCUPATIONS 214, 238-39 (1997). This finding is unaffected by firm size, government regulation, public-sector status, written policies, or robust internal labor markets. See id. at 237.

8. Twenty-four years after Congress outlawed the income gap, women earn two-thirds as much as men. See Equal Pay Act of 1963, Pub. L. No. 88-38 § 3, 77 Stat. 56 (1963), codified as amended at 29 U.S.C. § 206(d) (1994 & Supp. 1997); BUREAU OF THE CENSUS, U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED STATES 471 (1996). Studies show that gender-neutral theories cannot account for pay and promotion disparities between men and women. See, e.g., Linda K. Stroh et al., All the Right Stuff: A Comparison of Female and Male Managers' Career Progression, 77 J. APPLIED PSYCHOL. 251, 257 (1992) (finding significant disparities in men's and women's salary progression even after controlling for education, ambition, family status, and geographic mobility).

9. See Paul R. Sackett et al., Tokenism in Performance Evaluation: The Effects of Work Group Representation on Male-Female and White-Black Differences in Performance Ratings, 76 J. APPLIED PSYCHOL. 263 (1991).

10. See, e.g., Anne Locksley et al., Sex Stereotypes and Social Judgment, 39 J. PERSONALITY & SOC. PSYCHOL. 821, 830 (1980); Anne Locksley et al., Social Stereotypes and Judgments of Individual:" An Instance of Base Rate Fallacy, 18 J. EXPER. SOC. PSYCHOL. 23, 38 (1982); Kenneth A. Rasinski et al., Another Look at Sex Stereotypes and Social Judgments: An Analysis of the Social Perceiver's Use of Subjective Probabilities, 49 J. PERSONALITY & SOC. PSYCHOL. 317, 321-23 (1985).

11. See Claudia Golin & Cecilia Rouse, Orchestrating Impartiality: The Impact of "Blind" Auditions on Female Musicians, Working Paper No. 376, Industrial Relations Section, Princeton University (1997).

12. Id.

13. See Susan Vernon-Gerstenfeld & Edmund Burke, Affirmative Action in Nine Large Companies: A Field Study, PERSONNEL J., Apr. 1985, at 54, 55-59.