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DOJ files first Title VII lawsuit of Trump administration

Today, the U.S. Department of Justice (DOJ) announced the first lawsuit filed by the Trump administration under Title VII of the Civil Rights Act.  Title VII prohibits employment discrimination based on race, color, sex, national origin, and religion.  DOJ enforces Title VII against state and local government employers.

The lawsuit alleges that the Houston Fire Department violated Title VII of the Civil Rights Act when it subjected two female firefighters to sexual harassment.  The news of the lawsuit coincided with the announcement of a new DOJ initiative to combat sexual harassment in the workplace—the Sexual Harassment in the Workplace Initiative (SHWI).

This lawsuit against the City of Houston follows criticism from civil rights advocates over the fact that the current administration had not filed any Title VII lawsuits.  Now that the first one has been filed, it will be interesting to see whether DOJ will begin to file Title VII lawsuits at an increased frequency.

The lawsuit was filed by both the DOJ Civil Rights Division, Employment Litigation Section (ELS), and the U.S. Attorney’s Office for the Southern District of Texas.  ELS has a long history of pursuing sexual harassment cases, including ones in Arizona and Maine that one of our firm’s attorneys Allan Townsend led when he worked for ELS.  DOJ has jurisdiction over types of employers that have traditionally been dominated by men, such as fire departments, police departments, and corrections departments.  It will be interesting to see whether the formation of the SHWI results in an increase of sexual harassment lawsuits.

This first Title VII lawsuit does not allege a “pattern or practice” of discrimination.  ELS also has long history of pursuing pattern-or-practice cases, usually under the disparate impact provisions of Title VII.  Through these pattern-or-practice actions, ELS seeks to remedy systemic discrimination against groups protected by Title VII.  For example, ELS filed a successful lawsuit against the City of New York, which Mr. Townsend also worked on, that sought to remedy systemic discrimination in the City’s firefighter hiring process.  These pattern-or-practice cases often have a much higher impact than individual cases because, if successful, they can tear down discriminatory barriers that affect large groups of people.

It will be interesting to see whether DOJ files any of these Title VII pattern-or-practice cases during the Trump administration.  The U.S. Department of Education has issued guidance that de-emphasizes the importance of bringing systemic cases.  Whether DOJ will follow suit in the employment context remains to be seen but it has not filed any yet.  Many opponents to robust civil rights law enforcement have decried the use of disparate impact actions to combat discrimination and Title VII pattern-or-practice lawsuits often allege disparate impact violations.  So, if opponents to robust civil rights law enforcement have their way, DOJ will not file any disparate impact cases and that could mean no pattern-or-practice cases either.