by Kyle Barry, LDF Policy Counsel
On June 29, President Donald Trump nominated Eric S. Dreiband to be the Assistant Attorney General for Civil Rights in the Department of Justice. Created by the Civil Rights Act of 1957, the Civil Rights Division is charged with upholding “the civil and constitutional rights of all Americans, particularly some of the most vulnerable members of our society.” The Division’s work includes, among other things, enforcing federal antidiscrimination laws, investigating civil rights violations by police departments, prosecuting and preventing hate crimes, protecting voting rights, and ensuring equal access to housing and education. The Civil Rights Division, in other words, is responsible for protecting and building upon our hard-fought progress to become a more inclusive and just society, and it requires a leader with a proven commitment to those ideals.
Dreiband’s nomination, however, continues the Trump administration’s disturbing trend of retreating from — if not outright undermining — fundamental civil rights priorities. Dreiband has devoted most of his career to defending corporations in employment discrimination cases and advocating for weaker antidiscrimination protections in the workplace. He also has a troubling lack of experience, having done no significant work in other issue areas central to the Division’s mission, including urgent priorities like voting rights and policing reform.
Background
· Dreiband is a partner in the Washington, D.C. office of Jones Day, and has previously worked for the law firms of Akin Gump and Mayer, Brown & Platt.
· Dreiband took a three-year hiatus (1997 to 2000) from his position at Mayer Brown to work for Independent Counsel Kenneth Starr on the Whitewater real estate prosecution.
· Under President George W. Bush, Dreiband served as general counsel of the Equal Employment Opportunity Commission (EEOC) from 2003 to 2005, and as the deputy administrator of the Department of Labor’s Wage and Hour Division from 2002 to 2003.
Testimony and Articles
· In 2008, Dreiband testified against the bipartisan Fair Pay Restoration Act. The bill, intended to reverse the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Company, was designed to ensure that the statute of limitations in the Civil Rights Act of 1964 does not unfairly bar claims of pay disparity based on gender discrimination. The bill later passed in 2009 and was the first legislation that President Obama signed into law.
· In 2010, Dreiband testified against the Protecting Older Workers Against Discrimination Act. This bill would have reversed the Supreme Court’s 2009 decision in Gross v. FBL Financial Services, which placed a greater burden on workers to prove age discrimination under the Age Discrimination in Employment Act.
· In 2014, Dreiband testified in support of three bills that would have restricted the EEOC’s ability to enforce Title VII. The bills imposed new requirements to file litigation, and narrowed EEOC guidance — known as the “ban-the-box” guidance — that ensures employers do not unlawfully discriminate against Black and Latino job applicants through the use of criminal history checks. Dreiband also attacked that guidance in an article he co-authored in Forbes. There, he mischaracterized the EEOC’s effort to fight race discrimination as taking the position that “prior convictions for murder, rape, and theft are not relevant considerations in assessing competing applicants,” when in fact, based on longstanding judicial precedent, the guidance provides that employers can consider criminal conduct in a way that is “job related and consistent with business necessity.”
· Dreiband has often criticized the EEOC for a strategy of “sue first, ask questions later,” including in congressional testimony, an op-ed, and a Supreme Court amicus brief filed on behalf of the Chamber of Commerce. In each instance, Dreiband used this claim to argue that the EEOC’s enforcement authority should be narrowed.
Key Cases
While lawyers do not always share the policy views of their clients, Dreiband’s litigation arguments often dovetail with those he has made in congressional testimony and articles written in his own name. His many years in private practice — in contrast to his two years at the EEOC — also show that his experience and perspective are largely that of a lawyer working to defeat civil rights claims and undermine enforcement — precisely the opposite of what the Civil Rights Division needs to work effectively. Representative examples include:
· United States v. North Carolina. Dreiband was part of the legal team that represented the University of North Carolina when the state was sued by the Justice Department after North Carolina passed a law (HB2) requiring transgender people to use public bathrooms matching the gender listed on their birth certificate.
· Villarreal v. R.J. Reynolds Tobacco Co. On October 5, 2016, a divided Eleventh Circuit sitting en banc affirmed the district court opinion in favor of Dreiband’s client R.J. Reynolds Tobacco Company, holding that disparate-impact hiring claims are unavailable under the Age Discrimination in Employment Act. This ruling, over dissent, was a significant narrowing of age discrimination protections.
· EEOC v. Abercrombie & Fitch. In 2015, Dreiband was part of the Jones Day team that represented Abercrombie & Fitch Co. in a Title VII case before the Supreme Court involving the standards for religious accommodation claims. The EEOC sued Abercrombie for declining to offer a religious accommodation to an applicant whose headscarf did not comply with Abercrombie’s dress and grooming policy. Abercrombie argued that because the applicant did not request an accommodation or mention religion during her interview, the company did not have actual knowledge of the religious nature of the headscarf or the applicant’s need for a religious accommodation. The Supreme Court ruled in favor of the plaintiff in an 8–1 decision.
· EEOC v. Bloomberg LP. In 2013, Jones Day successfully defended Bloomberg, L.P. in a company-wide discrimination and retaliation class action case brought by the EEOC alleging that Bloomberg engaged in a pattern or practice of pregnancy discrimination by reducing the pay of pregnant women and women who took maternity leave. This was one of the EEOC’s first major pattern-or-practice class actions for pregnancy discrimination. Dreiband was the lead attorney.
· EEOC v. CVS Pharmacy. In December 2015, the Seventh Circuit affirmed the dismissal of a suit in which the EEOC alleged that a standard severance agreement used by CVS Pharmacy, Inc. constituted a “pattern or practice” of resistance to rights secured by Title VII. Dreiband served as lead counsel for CVS, and his law firm website notes that “the court expressly rejected the EEOC’s ‘expansive interpretation of its powers’ under Title VII’s pattern-or-practice provision, ruling that this authority ‘simply allows the EEOC to purse multiple violations of Title VII’ but ‘does not create a broad enforcement power for the EEOC to pursue non-discriminatory employment practices that it dislikes.’”
· Mach Mining, LLC v. EEOC. In this 2015 Supreme Court case, Dreiband’s arguments on behalf of the Chamber of Commerce match those he made in 2014 congressional testimony. Under Title VII, the EEOC has a duty to “conciliate” and try to resolve charges of employment discrimination before filing a lawsuit. Both before Congress and as amicus in the Supreme Court, Dreiband argued that the EEOC’s compliance with this requirement should be subject to judicial review, thus providing another potential defense when an employer is sued for discrimination. In a unanimous opinion, the Supreme Court reached middle ground, holding that while courts may review the EEOC’s efforts to conciliate, that review is “narrow,” and the EEOC retains broad discretion to enforce civil rights laws in the workplace.
