DOJ 2022 Article Re Civil Rights Enforcement

DEPARTMENT OF JUSTICE
JOURNAL OF FEDERAL LAW AND PRACTICE
Volume 70 January 2022 Number 1
Director
Monty Wilkinson
Editor-in-Chief
Christian A. Fisanick
Managing Editor
E. Addison Gantt
Associate Editor
Philip Schneider
Law Clerks
Rachel Buzhardt Lillian Lawrence
Rebekah Griggs
Kyanna Dawson William Pacwa
United States Department The Department of Justice Journal of

of Justice Federal Law and Practice is published
by the Executive Office for United States
Executive Office for United
Attorneys
States Attorneys
Office of Legal Education
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1620 Pendleton Street
The Department of Justice Journal
Columbia, SC 29201
of Federal Law and Practice is
published pursuant to Cite as:
28 C.F.R. § 0.22(b).
70 DOJ J. FED. L. & PRAC., no. 1, 2022.
Internet Address:
https://www.justice.gov/usao/resources/
journal-of-federal-law-and-practice
The opinions and views contained herein are those of the authors and do not necessarily reflect
the views of the Department of Justice. Further, they should not be considered as an
endorsement by EOUSA of any policy, program, or service.
Page Intentionally Left Blank
Civil Rights Part I: Civil Issues
In This Issue
Introduction ........................................................................................ 1
Kristen Clarke
The Attorney General’s Pattern-or-Practice Authority:
A Critical Tool for Civil Rights Enforcement ............................... 5
Barbara Schwabauer
Applying Bostock v. Clayton County to Civil Rights
Statutes Beyond Title VII ............................................................... 21
Alyssa Connell Lareau & Dylan Nicole de Kervor
A Case Study for Using Social Media in Civil Rights
Investigations .................................................................................... 39
Elise Sandra Shore & Jimmy Anthony Rodriguez
Civil Rights in the Digital Age: The Intersection of
Artificial Intelligence, Employment Decisions, and
Protecting Civil Rights.................................................................... 57
Natasha Babazadeh, Angela Washington, & Tiffany Brown
Building a Civil Rights Practice for Civil Enforcement in a
United States Attorney’s Office ..................................................... 69
Michael Goldberger, Jennifer A. Serafyn, & Michael J. Butler
Friends of the Court: Amicus Briefs and Statements of
Interest in Civil Rights Cases ........................................................ 85
Susan K. DeClercq & Elizabeth Parr Hecker
Polling Place Accessibility ........................................................... 103
Michael J. Butler & Elizabeth Johnson
Using the Americans with Disabilities Act to Reduce
Overdose Deaths ............................................................................. 113
David Howard Sinkman & Gregory Dorchak
HIV Discrimination Under the ADA—A Case Study ............... 129
Lara K. Eshkenazi
Civil Rights Part I: Civil Issues
In This Issue
Protecting Those Who Protect Us: An Introduction to
The Servicemembers Civil Relief Act and Uniformed
Services Employment and Reemployment Rights Act for
AUSAs Interested in Starting a Servicemembers and
Veterans Practice ............................................................................ 143
Nicole Siegel, Andrew Braniff, Deirdre Brou, Tanya
Kirwan, Torey Cummings, Amy Romero, & Zeyen Wu
Section 12601 and Title VI: Two Powerful Department
Tools to Address Systemic Police Misconduct .......................... 161
Nicole Porter, Christina Fogg, & Bharathi Venkatraman
The Civil Rights of Institutionalized Persons Act—
A Guide for Assistant United States Attorneys......................... 183
Michael E. Campion & Christopher N. Cheng
The Employment Litigation Section’s Sexual Harassment
in the Workplace Initiative and How to Get Involved............. 199
Shayna Bloom, Jen Swedish, & Julia Quinn
Protecting Students with Disabilities from Sexual
Harassment in Education: Title IX and More............................ 217
Tiffany Cummins Nick
Sexual Harassment in Housing: Working with Local
Prosecutors in Sexual Harassment Matters .............................. 237
Erin Meehan Richmond & Michael E. Campion
Enforcement of the Fair Housing Act and Equal Credit
Opportunity Act to Combat Redlining ....................................... 247
Samantha Ondrade
Testing Can Uncover Discrimination in Lending .................... 261
Noah Sacks
Addressing Discrimination Under the Immigration and
Nationality Act: IER’s Investigation and Outreach ................. 275
Lisa Sandoval & Tamara Hoflejzer
Note From the Editor-in-Chief ..................................................... 291
Christian A. Fisanick
Introduction
Kristen Clarke
Assistant Attorney General
Civil Rights Division
In 2022, the Civil Rights Division (Division) celebrates its 65th
anniversary. Since the Division’s creation in 1957, the landscape of
federal civil rights laws and protections has evolved considerably, and
so too has the Division. But through these many years, our focus has
remained steady on upholding the civil rights of all people in the
United States. Our work helps to safeguard the civil and
constitutional rights of our nation’s most vulnerable communities. For
decades, U.S. Attorney’s Offices (USAOs) nationwide have been
exceptional and essential partners in this work.
This is the first issue of a two-part series covering civil rights—this
issue discussing civil enforcement work and the next focusing on
criminal topics. In these two issues, we have gathered an array of
subject areas, legal perspectives, and practice tips that we hope will
give readers a deeper understanding of the statutes that the Division
enforces, the individuals and communities we seek to help through
our work, and how USAOs can join this effort in their own districts.
These articles reflect the Division’s commitment to fight longstanding,
systemic discrimination and inequality and to respond to new and
emerging civil rights concerns.
Below is a roadmap to orient you to this issue and the wealth of
information it contains.
Enforcement Authority. The articles in this issue provide an
overview of the Division’s statutory authority and approach to
enforcement that stretches across the statutes we enforce. One article
outlines the Attorney General’s authority to file pattern or practice
lawsuits. Another discusses how the Division uses statements of
interest and amicus briefs in cases in which it is not a party to
advance its mission.
Other articles focus more closely on specific areas of the Division’s
work, such as addressing discrimination under the Immigration and
Nationality Act, systemic police misconduct under Section 12601 and
Title VI, and violations of the Civil Rights of Institutionalized Persons
Act.
Racial Equity and Racial Justice. Many articles reflect the
Division’s deep commitment to combatting discrimination on the basis
January 2022 DOJ Journal of Federal Law and Practice 1

of race and national origin. One article describes the history of
redlining, the practice of lenders avoiding or excluding communities of
color from equal access to credit, and discusses some of the Division’s
successful enforcement work in this area. Another article probes the
intersection of artificial intelligence and civil rights in the context of
employment decisions, where using algorithms may result in
discrimination on the basis of race or other protected characteristics.
Two additional articles highlight Division cases involving race
discrimination. The first of these uses a public accommodation case to
highlight the role that social media evidence can play in our cases.
The second examines fair lending testing—where individuals pose as
potential borrowers to collect information about potential violations of
law—as a tool to further our enforcement of the Equal Credit
Opportunity Act. This article also highlights a case involving race
discrimination in the financing of used cars.
Sex Discrimination. An article on the Supreme Court’s 2020 decision
in Bostock v. Clayton County considers how the Court’s holding, that
discrimination “because of sex” includes discrimination because of
sexual orientation or gender identity applies, to civil rights statutes
beyond Title VII. And three articles discuss the Division’s work to
combat sexual harassment in employment, education, and housing.
These articles describe our Sexual Harassment in the Workplace
Initiative, provide a legal overview of our work to protect students
with disabilities from sexual harassment, and offer best practices on
how to work with local law enforcement when evaluating potential
sexual harassment in the housing context.
Americans with Disabilities Act. Three articles show the breadth of
the Americans with Disability Act—from increasing the accessibility
of polling places to treating opioid use disorder to combatting
discrimination based on HIV status. All three of these articles
highlight the leadership role of USAOs in investigating and litigating
cases and creating systemic change.
Civil Rights at USAOs. We hope that reading these articles sparks
new opportunities between the Civil Rights Division and USAOs to
work together to protect civil rights. Two articles—one on building a
civil rights practice and one on setting up a servicemembers and
veterans practice—provide an excellent framework for USAOs to get
started.
These articles reflect the meaningful, mission-centered work that
the Division carries out every day. We hope that you benefit from the
2 DOJ Journal of Federal Law and Practice January 2022

strategies and insights these articles offer. And we look forward to
building on the great work the Division and USAOs have
accomplished together to further civil rights enforcement and
compliance in the years to come.


The Attorney General’s Pattern-
or-Practice Authority: A Critical
Tool for Civil Rights Enforcement
Barbara Schwabauer
Attorney
Appellate Section
I. Introduction
A number of federal civil rights statutes authorize the Attorney
General to seek relief against persons or entities engaging in a
“pattern or practice” of discrimination or other unlawful conduct that
interferes with the enjoyment of protected civil rights. 1 This pattern-
or-practice authority allows the Attorney General to address
discrimination or unlawful conduct that is systemic or widespread,
rather than isolated or sporadic. 2 The Attorney General has delegated
this authority to the Civil Rights Division (Division) of the
Department of Justice (Department), which enforces most federal civil
rights statutes. 3 Pattern-or-practice cases are one of the most critical
1 E.g., Titles II & VII of the Civil Rights Act of 1964 §§ 206, 707, 42 U.S.C.
§§ 2000a-5(a), 2000e-6(a); Fair Housing Act § 814, 42 U.S.C. § 3614(a); Titles
I & III of The Americans with Disabilities Act §§ 107, 308, 42 U.S.C.
§§ 12117(a), 12188(b)(1)(B)(i); Equal Credit Opportunity Act § 706, 15 U.S.C.
§ 1691e(h); Civil Rights of Institutionalized Persons Act § 3, 42 U.S.C.
§ 1997a(a); Violent Crime Control and Law Enforcement Act of 1994
§ 210401, 34 U.S.C. § 12601.
2 This article uses the term “pattern-or-practice” authority to refer to the
Attorney General’s discretionary authority to address widespread or systemic

discrimination. The pattern-or-practice authority is not the only
discretionary authority available to the Attorney General to address civil
rights violations. Several statutes also authorize the Attorney General to sue
under other circumstances. See, e.g., 42 U.S.C. §§ 3614(a), 12188(b)(1)(B)(II).
The scope of this article is limited to pattern-or-practice authority. For a
complete list of statutes enforced by the Civil Rights Division and the
standards for bringing enforcement action under those statutes, see Justice
Manual 8-2000.
3 28 C.F.R. § 0.50; JUSTICE MANUAL 8.2000.

tools the Division uses to protect civil and constitutional rights, often
working in partnership with the U.S. Attorney’s Offices.
Because of the broad array of civil rights statutes granting pattern-
or-practice authority, the Department can play a leading role in
addressing systemic discrimination in numerous areas of public life.
This authority also uniquely situates the Department to eradicate
systemic discrimination in circumstances that may otherwise prove
difficult to address through lawsuits by individual victims of
discrimination.
II. The broad scope of the Attorney

General’s pattern-or-practice authority
The Attorney General’s pattern-or-practice authority originated
during the 1960s with the passage of major civil rights legislation, and
Congress has expanded this authority through subsequent civil rights
laws. Through this authority, the Department can investigate,
litigate, and remedy systemic civil rights violations in a variety of
contexts, including employment, housing, lending, places of public
accommodation, institutional settings, and law enforcement.
A. Employment
1. Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 prohibits discrimination in
employment because of an “individual’s race, color, religion, sex, or
national origin.” 4 Title VII prohibits an employer from discriminating
on a prohibited basis with respect to hiring, discharge, promotion,
transfers, assignments, discipline, compensation, benefits, and any
other “terms, conditions, or privileges of employment.” 5 Under Title
VII, the Attorney General may bring a civil action against a state or
local government employer “engaged in a pattern or practice of
resistance to the full enjoyment of any of the rights” provided by the
statute. 6 In such actions, the government may seek relief, including
4 42 U.S.C. § 2000e-2.
5 42 U.S.C. § 2000e-2(a)(1).
6 42 U.S.C. § 2000e-6(a). The Civil Rights Division enforces Title VII with
respect to state and local government employers, while the Equal

Employment Opportunity Commission (EEOC) enforces Title VII against
private employers. See 42 U.S.C. § 2000e-4(g)(6).

“reinstatement or hiring of employees,” “back pay,” and “any other
equitable relief as the court deems appropriate.” 7
Relying on Title VII’s pattern-or-practice authority, the Division has
brought numerous lawsuits to eliminate discriminatory employment
practices, including entry-level and promotional tests that
discriminate on the basis of race, national origin, or sex; 8 assignment
policies based on sex in correctional facilities that are not justified by
a bona fide occupational qualification; 9 and the failure to
accommodate religious beliefs in response to a grooming policy
prohibiting beards of a certain length. 10 For example, in
United States v. City of New York, the Division successfully challenged
the New York City Fire Department’s entry-level test for firefighters
that had a disparate impact on Black and Hispanic applicants. 11 The
Division was able to obtain extensive relief, including the development
of a lawful entry-level test and make-whole relief for victims of the
City’s discrimination, including priority hiring, retroactive seniority,
and $98 million in back pay. 12
2. Title I of the Americans with Disabilities Act
Under Title I of the Americans with Disabilities Act (ADA), a state
or local government employer is prohibited from discriminating
against a “qualified individual on the basis of disability” with respect
to “application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 13 The statute also requires
an employer to make reasonable accommodations to persons with
disabilities unless such accommodation would impose undue
7 42 U.S.C. § 2000e-5(g)(1).
8 E.g., Complaint, United States v. Baltimore Cnty., No. 19-cv-02465
(D. Md. Aug. 27, 2019), ECF No. 1.
9 E.g., Complaint, United States v. Mich. Dep’t of Corr., No. 16-cv-12146
(E.D. Mich. June 13, 2016), ECF No. 1.

10 E.g., Complaint, United States v. Sch. Dist. of Phila., No. 14-cv-1334
(E.D. Pa. 2014), ECF No.1.

11 United States v. City of New York, 637 F. Supp. 2d 77, 131–32
(E.D.N.Y. 2009).
12 Press Release, Dep’t of Justice, Justice Dep’t Reaches Agreement in
Principle with the New York City Fire Department Over Discriminatory
Hiring Practices Resulting in $98 Million in Relief (Mar. 18, 2014).
13 42 U.S.C. § 12112(a)–(b).

hardship. 14 Title I of the ADA imports the enforcement mechanisms
provided by Title VII, including the Attorney General’s pattern-or-
practice authority against state and local government employers and
the ability to seek the same types of relief available in a Title VII
action. 15
For example, in United States v. City of Baltimore, the Division
obtained a consent decree pursuant to its pattern-or-practice
authority under Title I of the ADA. 16 The Division alleged that the
City engaged in a pattern or practice of discrimination by requiring
job applicants to its fire department to disclose disabilities and other
medical information in their applications before the City made
conditional employment offers. 17 Under the decree, the City agreed to
stop the unlawful practice and to submit to compliance monitoring
and reporting to prevent any further violations of the ADA. 18
3. The anti-discrimination provision of the
Immigration and Nationality Act
Separate from the authority provided directly to the Attorney
General, the Division’s Immigration and Employee Rights Section 19
also has independent authority to pursue a pattern or practice of
discrimination in the workplace through the anti-discrimination
provision of the Immigration and Nationality Act. 20 This law
prohibits, among other things, discrimination on the basis of
citizenship status and national origin with respect to hiring, firing,
recruitment, or referral for a fee, 21 as well as unfair documentary
practices for purposes of establishing a person’s eligibility to work. 22
To remedy a pattern or practice of discrimination under section 1324b,
14 42 U.S.C. § 12112(b)(5)(A).
15 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. §§ 2000e-5, 2000e-6). The
Division enforces Title I of the ADA with respect to state and local
government employers, while the EEOC enforces Title I against private
employers. See 42 U.S.C. § 2000e-4(g)(6).
16 Consent Decree at 1, United States v. City of Baltimore, No. 14-cv-2684
(D. Md. Aug. 21, 2014), ECF No. 4.

17 Id.
18 Id. at 2, 4.
19 See 28 C.F.R. § 0.53(a).
20 See 8 U.S.C. §§ 1324b(c)(2), 1324b(d)(1).
21 8 U.S.C. § 1324b(a)(1).
22 8 U.S.C. § 1324b(a)(6).

the Division may—in addition to seeking relief for adversely affected
individuals like hiring, back pay, and front pay—pursue injunctive
relief to prevent future discrimination and pursue civil penalties that
accrue for each victim in amounts that vary depending on the type of
violation. 23
B. Housing and lending
1. The Fair Housing Act
The Fair Housing Act (FHA) prohibits discrimination in housing on
the basis of race, color, religion, sex, familial status, national origin, or
against persons with disabilities. 24 The FHA reaches conduct in
numerous areas connected to housing, including the rental or sale of
housing, the provision of services connected to housing, and
residential real estate-related transactions. Because of the broad
scope of the conduct covered by the FHA, defendants may include
governmental entities, housing providers, real estate agents, banks,
and mortgage brokers to name a few. 25
The FHA grants the Attorney General the authority to sue in
federal district court “[w]henever the Attorney General has reasonable
cause to believe that any person or group of persons is engaged in a
pattern or practice of resistance to the full enjoyment of any of the
rights granted” under the FHA. 26 The Department has used this
authority to reach a variety of discriminatory conduct, including
denying housing or offering housing on less favorable terms based on
a protected category, 27 sexual harassment by housing providers, 28 and
redlining, which is when lenders avoid or exclude communities of color
from equal access to credit based on demographic characteristics of
their neighborhoods. 29 In these cases, the Department may seek
23 8 U.S.C. §§ 1324b(g)(2)(A)–(B).
24 42 U.S.C. §§ 3604–3605.
25 Id.
26 42 U.S.C. 3614(a).
27 E.g., Consent Order at 1, United States v. Hous. Auth. of Bossier City,
No. 16-cv-1376 (W.D. La. Oct. 6, 2016), ECF No. 4.

28 E.g., Complaint at 3, United States v. Dos Santos, No. 20-cv-30191
(D. Mass Dec. 7, 2020), ECF No. 1 [hereinafter Dos Santos Complaint];
Complaint at 3, United States v. Centanni, No. 20-cv-10053 (D.N.J. Aug. 5,
2020), ECF No. 1 [hereinafter Centanni Complaint].
29 E.g., Consent Order, United States v. Eagle Bank and Trust Co. of Mo., No.
15-cv-01492 (E.D. Mo. Oct. 1, 2015), ECF No. 2-1.

injunctive relief and “other relief as the court deems appropriate,
including monetary damages to persons aggrieved.” 30 Those monetary
damages include actual damages (like restitution, out-of-pocket costs,
economic damages, and compensatory damages for emotional distress
and other intangible harms) and punitive damages. 31 The Department
may also seek a civil penalty. 32
2. The Equal Credit Opportunity Act
The Attorney General also has pattern-or-practice authority to reach
discriminatory lending practices beyond those connected to residential
real-estate transactions, including auto loans, personal loans, credit
cards, and other loans. The Equal Credit Opportunity Act (ECOA)
makes it unlawful for a “creditor to discriminate against any
applicant, with respect to any aspect of a credit transaction on the
basis of race, color, religion, national origin, sex or marital status, or
age,” or because of income derived from public assistance. 33 Under
ECOA, the Attorney General has authority to file a complaint in
federal district court “whenever he has reason to believe that one or
more creditors are engaged in a pattern or practice in violation of
[ECOA].” 34 In such actions, the Department can seek relief, “including
actual and punitive damages and injunctive relief.” 35
The Division often brings pattern-or-practice cases involving
redlining in the mortgage industry under both the FHA and ECOA. 36
However, the Division has also used ECOA’s pattern-or-practice
authority to reach discriminatory lending practices in car sales. For
example, in United States v. Guaranteed Auto Sales, the government
alleged that a used car dealership engaged in a pattern or practice of
discrimination by offering financing for car purchases to Black
applicants on less favorable terms than those offered to white
applicants. 37 To remedy this discrimination, the Division obtained a
30 42 U.S.C. §§ 3614(d)(1)(A)–(B).
31 See, e.g., United States v. Balistrieri, 981 F.2d 916, 928 (7th Cir. 1992).
32 42 U.S.C. § 3614(d)(1)(C).
33 15 U.S.C. § 1691(a) (cleaned up).
34 15 U.S.C. § 1691e(h).
35 Id.
36 See Dos Santos Complaint, supra note 28, at 3; Centanni Complaint, supra
note 28, at 3.
37 Complaint at 3–5, United States v. Guaranteed Auto Sales, No. 19-cv-2855
(D. Md. Sept. 30, 2019), ECF No. 1.

settlement requiring the car dealership to develop and implement
lawful lending procedures to ensure there is no disparity between
customers on the basis of race or any other protected class. 38
C. Public accommodations
1. Title II of the Civil Rights Act of 1964
Title II of the Civil Rights Act of 1964 prohibits discrimination and
segregation on the basis of race, color, religion, or national origin in
accommodations open to the public. 39 The covered public
accommodations include hotels, restaurants, and other entertainment
venues, such as theaters, stadiums, and concert halls. 40 Like Title VII
and the FHA, Title II permits the Department to file a complaint in
federal court “[w]henever the Attorney General has reasonable cause
to believe that any person or group of persons is engaged in a pattern
or practice of resistance to the full enjoyment of any of the rights
secured by [Title II].” 41 However, the government can only seek
injunctive relief in Title II pattern-or-practice cases. 42
Under this authority, the Department has tackled discriminatory
practices in numerous places of public accommodation. These
challenged practices have included discriminatory dress codes
intended to prevent customers from patronizing night clubs and
restaurants on the basis of race and/or national origin, 43 higher
deposit fees for Hispanic customers seeking to rent a reception hall, 44
and segregated seating and inferior restaurant service for Black
customers. 45
38 Consent Order at 2–3, Guaranteed Auto Sales, No. 19-cv-2855, ECF No. 13.
39 42 U.S.C. § 2000a(a).
40 42 U.S.C. § 2000a(b) (also requiring such accommodations to affect
interstate commerce or to be “supported in their activities by State action”).

41 42 U.S.C. § 2000a-5(a).
42 See id. (providing for only “preventive” injunctive relief rather than
damages for past harms).

43 See Complaint at 4–5, United States v. Jarrah, No. 16-cv-2906 (S.D. Tex.
Sept. 28, 2016), ECF No. 1; Consent Decree at 1, United States v. Davis,
No. 07-cv-430 (E.D. Va. Mar. 10, 2008), ECF No. 14.
44 See Consent Decree at 2, 16, United States v. Pasco Cnty. Fair Ass’n,
No. 10-cv-1554 (M.D. Fla. July 15, 2010), ECF No. 2.

45 See Agreed Order at 5–6, United States v. Cracker Barrel Old Country
Store, Inc., No. 04-cv-109 (N.D. Ga. May 18, 2009), ECF No. 24.

2. Title III of the Americans with Disabilities Act
Title III of the ADA makes it unlawful for a place of public
accommodation to discriminate against an individual on the basis of
disability in the full and equal enjoyment of its goods, services,
facilities, privileges, advantages, or accommodations. This provision
reaches a much broader range of places of public accommodation than
those covered by Title II of the Civil Rights Act of 1964, including
schools and daycare centers, hospitals and medical offices, service
establishments like dry cleaners and barber shops, professional
offices, and parks and recreational facilities, among many others. 46
Title III also gives the Attorney General authority to sue whenever
there is “reasonable cause to believe that any person or group of
persons is engaged in a pattern or practice of discrimination” against
persons with disabilities in places of public accommodation. 47 In cases
brought under this pattern-or-practice authority, the Attorney
General may seek equitable relief as well as monetary relief for
aggrieved persons. 48 The Attorney General can also seek a civil
penalty. 49
For example, in United States v. Greyhound Lines Inc., the
Department alleged that Greyhound, the nation’s largest provider of
intercity bus transportation, engaged in a pattern or practice of
discrimination against individuals with disabilities. 50 The Department
alleged, among other things, that Greyhound failed to maintain its
accessibility features, including wheelchair lifts, and failed to provide
passengers with disabilities assistance boarding and exiting buses at
rest stops. 51 The Department negotiated a settlement with Greyhound
requiring systemic reforms to improve Greyhound’s provision of
services to passengers with disabilities, awarding over $3 million to
aggrieved persons, and assessing a civil penalty totaling $75,000. 52
46 42 U.S.C. § 12181(7).
47 42 U.S.C. § 12188(b)(1)(B) (cleaned up).
48 42 U.S.C. §§ 12188(b)(2)(A)–(B).
49 42 U.S.C. § 12188(b)(2)(C).
50 Complaint at 4–5, United States v. Greyhound Lines, Inc., No. 16-cv-67
(D. Del. Feb. 8, 2016), ECF No. 1.

51 Id. at 1–2.
52 Press Release, Dep’t of Justice, Over $3 Million Paid to Individuals in
Disability Settlement with Greyhound (May 2, 2019).

D. Institutional settings
The Civil Rights of Institutionalized Persons Act (CRIPA) authorizes
the Attorney General to bring pattern-or-practice claims against state
and local government entities with respect to unconstitutional and
unlawful conditions in institutional settings, including juvenile53 and
adult correctional facilities as well as mental health facilities, nursing
homes, and other facilities for people with intellectual or
developmental disabilities. 54 Under CRIPA, the Attorney General can
sue when he has reason to believe persons are being subjected to
institutional conditions so “egregious or flagrant” as to deprive them
of their constitutional or federal statutory rights 55 and such
deprivation “is pursuant to a pattern or practice of resistance” to those
rights. 56
The Department has used CRIPA to address unlawful conditions in
a wide variety of correctional and other facilities. In correctional
facilities, the Department has sued to address systemic “fail[ures] to
prevent prisoner-on-prisoner violence and sexual abuse,” to “protect
prisoners from the use of excessive force by security staff,” to provide
adequate and mental health care, and to ensure safe conditions of
confinement. 57 Also, the Department has addressed the use of
restrictive housing for prisoners with mental health disabilities solely
on the basis of their mental health status. 58
Under CRIPA, the Attorney General can only seek “equitable relief
as may be appropriate to insure the minimum corrective measures
necessary” to prevent the deprivation of the constitutional and federal
53 The Attorney General also has authority to reach juvenile detention

facilities under the Violent Crime Control and Law Enforcement Act of 1994
§ 210401, 34 U.S.C. § 12601.
54 42 U.S.C. §§ 1997a, 1997(1). CRIPA also supplies the Attorney General
with civil subpoena power to facilitate investigations into potential pattern-

or-practice violations. 42 U.S.C. 1997a-1.
55 42 U.S.C. § 1997a(a). CRIPA protects only constitutional rights in the
correctional context.
56 Id.
57 Amended Complaint at 1, United States v. Alabama, No. 20-cv-1971
(N.D. Ala. May 19, 2021), ECF No. 37; see Settlement Agreement at 1, 19,
United States v. State of New Jersey, No. 21-cv-15031 (D.N.J. Aug. 24, 2021),
ECF No. 12.
58 See Complaint at 2–3, United States v. Hampton Rds. Reg’l Jail Auth.,
No. 20-cv-410 (E.D. Va. Aug. 5, 2020), ECF No. 1.

statutory rights of institutionalized persons. 59 Using this remedial
authority, the Department has obtained relief including revised
policies and procedures as well as monitoring to provide oversight and
ensure that the rights of institutionalized persons are adequately
protected. 60
E. Law enforcement
The Violent Crime Control and Law Enforcement Act of 1994
prohibits governmental entities from engaging “in a pattern or
practice of conduct by law enforcement officers” that deprives persons
of their constitutional and other federal rights. 61 The statute
authorizes the Attorney General to bring a civil action whenever he
has “reasonable cause to believe” that such a violation has occurred. 62
Under this authority in section 12601, the Department can seek
“equitable and declaratory relief to eliminate the pattern or practice”
of unlawful conduct. 63
Much of the Department’s work under section 12601 has focused on
addressing “patterns of unlawful use of force; unlawful stops, searches
and arrests; and racial discrimination” by law enforcement agencies. 64
These cases often result in extensive injunctive relief, including the
appointment of independent monitors to oversee the implementation
of injunctive relief, the development and revision of policies governing
police practices, trainings, community engagement, accountability
59 42 U.S.C. § 1997a(a). In the corrections context, any such relief must also
comply with the Prison Litigation Reform Act. See 18 U.S.C. § 3626.
60 See, e.g., Agreement to Resolve the Department of Justice’s Investigation of
Hampton Raods Regional Jail at 3, 22, 26, Hampton Rds. Reg’l Jail Auth.,
No. 20-cv-410 (E.D. Va. Aug. 5, 2020), ECF No. 2-1.
61 34 U.S.C. § 12601(a). The statute also reaches conduct in the juvenile
justice and carceral system. Id. If a law enforcement agency receives federal
funding, the Attorney General also has authority to address a “pattern or
practice of discriminatory conduct on the basis of race, color, religion,
national origin, or sex” under the Omnibus Crime Control and Safe Streets
Act of 1968, 34 U.S.C. §§ 10228(c)(2)(E), 10228(c)(3) (Safe Streets Act). In
addition to providing for injunctive relief, the Attorney General may also
seek the suspension or termination of federal funds for a violation of the Safe
Streets Act. Id.
62 34 U.S.C. § 12601(b).
63 Id.
64 DEP’T OF JUST., THE CIVIL RIGHTS DIVISION’S PATTERN AND PRACTICE
POLICE REFORM WORK: 1994-PRESENT 6 (2017).

systems for officer misconduct, and officer wellness and support
programs. 65 The remedies thus go beyond what any individual
plaintiff who is subject to unconstitutional or illegal police practices
could obtain given the limits the Supreme Court has set on injunctive
relief for individuals in cases like City of Los Angeles v. Lyons. 66
III. Pattern-or-practice cases under

International Brotherhood of
Teamsters v. United States
The Supreme Court first articulated the standards governing the
Attorney General’s pattern-or-practice authority in International
Brotherhood of Teamsters v. United States. 67 Though that case dealt
with the Attorney General’s authority under Title VII, courts have
applied Teamsters to the pattern-or-practice authority in other civil
rights statutes. 68
In Teamsters, the Court clarified that the phrase “pattern or
practice” is not a term of art but carries its “usual meaning.” 69 The
Court thus held that the government bears the burden to show that
unlawful discrimination (or conduct) is the defendant’s “standard
operating procedure” or “regular practice.” 70 The government may
make this showing through evidence of an expressly discriminatory
policy, the use of statistical evidence, or a number of similar instances
of discrimination or unlawful conduct. 71
65 See id. at 20–21, 25–34.

66 461 U.S. 95 (1983).
67 Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977).
68 See, e.g., United States v. Lansdowne Swim Club, 894 F.2d 83, 88 (3d Cir.
1990) (applying Teamsters to Title II pattern-or-practice claim);

United States v. Big D Enters., Inc., 184 F.3d 924, 930 (8th Cir. 1999) (FHA);
Davoll v. Webb, 194 F.3d 1116, 1147–48 (10th Cir. 1999) (ADA);
United States v. Cnty. of Maricopa, 151 F. Supp. 3d 998, 1030 (D. Ariz. 2015)
(section 12601).
69 Teamsters, 431 U.S. at 336 n.16.
70 Id. at 336, 336 n.16.

71 See, e.g., Equal Emp. Opportunity Comm’n v. Am. Nat. Bank, 652 F.2d
1176, 1188 (4th Cir. 1981) (concluding “pattern or practice” may be shown “by
statistics alone” or “by a cumulation of evidence, including statistics,
patterns, practices, general polices, or specific instances of discrimination”).

The precise showing required to prove that unlawful conduct or
discrimination is an entity’s “standard operating procedure” or
“regular practice” varies based on the civil rights statute at issue. In
pattern-or-practice cases brought under statutes that reference a
pattern-or-practice “of resistance to the enjoyment of rights” provided
by that statute, such as Title VII or the FHA, the government’s
burden will require showing a violation of the statute’s substantive
provision(s) prohibiting discrimination. For example, in an FHA
pattern-or-practice case, the government may be required to show
that an entity’s standard operating procedure is to “refuse to sell or
rent” to persons on the basis of race in violation of section 3604(a), one
of the FHA’s substantive prohibitions. 72 Similarly, under CRIPA and
section 12601, the precise showing necessary depends on the
constitutional or statutory rights the government alleges are being
deprived as a matter of regular practice by the jurisdiction, such as
the deprivation of the constitutional right to equal protection or to be
free from unreasonable searches and seizures. 73
IV. The benefits of pattern-or-practice

authority
As an enforcement tool, the Attorney General’s pattern-or-practice
authority also offers unique benefits that enable the Department to
eradicate and remedy systemic discrimination.
A. Independent, self-starting authority
One of the primary benefits of pattern-or-practice authority is that it
is independent and self-starting, providing the Department with
discretion to initiate its own investigations and litigation of civil
rights violations.
Although some additional forms of discretionary authority are
available, many of the other enforcement mechanisms available
require or otherwise depend on referrals of private complaints filed
with, or findings of discrimination by, another government agency.
For example, the Department may bring an enforcement action based
on a referral of a complaint from the EEOC under Title VII 74 or Title I
72 42 U.S.C. § 3604(a).
73 See 34 U.S.C. § 12601(a).
74 42 U.S.C. § 2000e-5(f)(1).

of the ADA, 75 from the Department of Housing and Urban
Development under the FHA, 76 and from financial regulators and the
Consumer Financial Protection Bureau for ECOA. 77 The Department’s
ability to exercise this referral authority depends on factors outside
the control of the Department, including the ability of an individual to
make a complaint to the appropriate agency, the individual’s ability to
do so within any applicable statute of limitations, and the completion
of any required administrative process before referral.
With the flexibility provided by the Attorney General’s pattern-or-
practice authority, however, the Department can undertake its own
investigations and commence litigation of alleged civil rights
violations without having to rely on the initiation and administrative
management of an individual complaint or the finding of another
agency. Because it permits investigation and analysis of a covered
entity’s practices in the aggregate, the Department’s pattern-or-
practice authority can reach systemic discrimination that may go
unnoticed at the individual level and, thus, may have never prompted
an individual complaint in the first instance. Finally, pattern-or-
practice authority also provides the Department with the ability to
expand an investigation or litigation based on its referral authority
when the original investigation reveals additional victims of the same
discriminatory practice or reveals that the referred complaint is
otherwise part of a broader unlawful pattern or practice.
B. No need to satisfy class representation
requirements to address systemic discrimination
Another benefit of pattern-or-practice authority is that it permits
the Department to address systemic discrimination affecting large
classes of individuals without having to satisfy the procedural
requirements for a class action under Rule 23 of the Federal Rules of
Civil Procedure, as an individual private plaintiff would be required to
do. Many of the Department’s pattern-or-practice cases involve class-
action type claims—a discriminatory pattern or practice that harms
large numbers of individuals in the same or similar ways.
To address systemic discrimination on behalf of similarly situated
individuals in a private right of action, plaintiffs must satisfy the class
75 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5).

76 42 U.S.C. §§ 3610(c), 3610(e), 3610(g)(2)(C), 3612(o)(1), 3614(b).
77 15 U.S.C. § 1691e(g)–(h).

certification requirements under Rule 23. Class representative
plaintiffs must demonstrate the numerosity of the class, the
commonality of legal or factual issues, the typicality of claims and
defenses, and the adequacy of representation to protect the interests
of the class. 78 They must also show that a class action is appropriate
because (1) litigating separate actions would risk inconsistent
adjudications that impose incompatible standards of conduct; (2) the
defendants acted, or refused to act, in a manner generally applicable
to the class; or (3) common questions of law or fact predominate over
individual class members’ claims. 79 Rule 23 also imposes notice and
other procedural requirements that impact the progression of such
litigation. 80 The time and resources necessary to obtain class
certification, as well as the challenging nature of the standards
governing these requirements, may provide a significant deterrent for
private plaintiffs to pursue class actions to address systemic
discrimination. 81
The Department does not have to navigate the hurdles posed by
Rule 23 in private class action suits when utilizing the Attorney
General’s pattern-or-practice authority. 82 As the Supreme Court has
explained more generally, Rule 23 does not apply to the federal
government when it brings an enforcement action under its pattern-
or-practice authority because the government is not merely
representative of a group of aggrieved individuals for whom it seeks
relief—the government also acts in its own name “to vindicate the
public interest in preventing” and remedying civil rights violations. 83
78 FED. R. CIV. P. 23(a).

79 FED. R. CIV. P. 23(b).
80 FED. R. CIV. P. 23(c)(2), 23(d)–(g).
81 See, e.g., Katherine E. Lamm, Work in Progress: Civil Rights Class Actions
After Wal-Mart v. Dukes, 50 HARV. C.R.-C.L. L. Rev. 176–77 (2015)

(summarizing challenges to bringing civil rights class actions).
82 See General Tel. Co. of Northwest, Inc., v. Equal Emp. Opportunity
Comm’n, 446 U.S. 318, 333–34 (1980) (holding that Rule 23 does not apply to
cases brought pursuant to the government’s authority to institute a civil
action under Title VII).
83 Id. at 326.

C. Ability to obtain systemic relief and individual
relief for non-parties
The Department’s ability to seek extensive relief in pattern-or-
practice cases is another significant benefit of this authority. Although
private enforcement actions can address individual instances of
unlawful conduct or discrimination, the private bar may lack the
resources and incentives to seek broader systemic changes in response
to individual circumstances. In its pattern-or-practice cases, the
Department can use its authority to obtain injunctive relief
addressing broader unlawful policies and practices and prevent future
civil rights violations.
Additionally, although not all statutes granting pattern-or-practice
authority provide for individual relief, those that do permit the
Department to obtain relief for aggrieved individuals without
requiring them to be a party to the litigation. This authority also
permits the United States to obtain relief for such individuals even
though they may be time-barred from doing so in a private action. 84
Because many victims of systemic discrimination may not have the
resources or knowledge necessary to seek individual relief on their
own, the Attorney General’s pattern-or-practice authority can provide
an important mechanism for ensuring that they are made whole,
which can also serve as a powerful deterrent against future
discrimination.
V. Conclusion
Given its broad scope across numerous aspects of public life, the
Attorney General’s pattern-or-practice authority plays a critical role
in the Civil Rights Division’s mission to uphold the civil and
constitutional rights of all Americans. Although this authority is not
the Department’s only means of civil rights enforcement, it is a
powerful tool for combating and remedying systemic discrimination
that may not be easily reached or otherwise meaningfully addressed
through individual complaints or private enforcement. The
Department continues to make active use of this authority to initiate
new investigations and litigation and to achieve favorable settlements
84See 28 U.S.C. §§ 2415, 2462 (regarding time limitations on the United

States’ claims that differ from those applicable to private claimants).

that remedy past harms of systemic discrimination and prevent
similar harms from occurring in the future.
About the Author
Barbara Schwabauer is a senior attorney in the Civil Rights
Division’s Appellate Section, where she handles civil rights cases in
the federal appellate courts. Before joining the Appellate Section, she
served as senior trial attorney in the Division’s Employment
Litigation Section from 2010–2019, investigating and litigating Title
VII discrimination cases, including pattern-or-practice cases. Ms.
Schwabauer joined the Division through the Attorney General’s
Honors Program in 2010.

Applying Bostock v. Clayton
County to Civil Rights Statutes
Beyond Title VII
Alyssa Connell Lareau
Attorney
Federal Coordination and Compliance Section
Dylan Nicole de Kervor
Section Chief
Office for Civil Rights
Department of Health and Human Services
I. Introduction
In its 2020 decision in Bostock v. Clayton County, Georgia, 1 the
Supreme Court, for the first time, explicitly addressed the application
of existing sex discrimination laws to individuals alleging
discrimination on the basis of sexual orientation and gender identity.
The Court held that Title VII of the Civil Rights Act, 2 which prohibits,
among other things, discrimination in the workplace “because
of . . . sex,” forbids employers from making adverse employment
decisions because of an employee’s sexual orientation or gender
identity. 3
The Bostock decision itself dealt only with Title VII, and the Court
made clear it was not addressing the application of its reasoning to
other statutes that prohibit discrimination based on sex. 4 As discussed
below, however, most courts that have addressed the issue have
concluded that Bostock’s reasoning applies to statutes beyond Title
1 Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020).

2 Civil Rights Act of 1964 § 703, 42 U.S.C. § 2000e-2(a)(1).
3 Bostock, 140 S. Ct. at 1740.
4 Id. at 1753 (“The employers worry that our decision will sweep beyond Title
VII to other federal or state laws that prohibit sex discrimination. . . But
none of these other laws are before us; we have not had the benefit of
adversarial testing about the meaning of their terms, and we do not prejudge
any such question today.”).

VII, including Title IX of the Education Amendments of 1972 5 and
section 1557 of the Patient Protection and Affordable Care Act (ACA). 6
The current administration has taken a similar approach. In
Executive Order No. 13,988 (EO 13,988), President Biden stated,
“Under Bostock’s reasoning, laws that prohibit sex
discrimination . . . prohibit discrimination on the basis of gender
identity or sexual orientation, so long as the laws do not contain
sufficient indications to the contrary.” 7 The Executive Order directed
the head of each agency, within 100 days of January 20, 2021, to
develop a plan to carry out actions to combat discrimination based on
sexual orientation and gender identity, as appropriate and consistent
with applicable law. 8 The President directed agencies to consult with
the Department of Justice (Department) in carrying out the Executive
Order as appropriate. 9 The Department is also charged with
coordinating the implementation and enforcement of Title IX and
other laws that prohibit sex discrimination by recipients of federal
financial assistance. 10
As a result of EO 13,988, several federal agencies have issued public
interpretations concluding that Bostock’s reasoning applies with equal
force to Title IX, Section 1557 of the ACA, the Fair Housing Act
(FHA), 11 and the Equal Credit Opportunity Act (ECOA). 12 These
interpretations and subsequent legal challenges, as well as related
caselaw, demonstrate that the reach of the Bostock decision will be
litigated for years to come. 13
5 Education Amendments of 1972 § 901, 20 U.S.C. § 1681(a).

6 Patient Protection and Affordable Care Act § 1557, 42 U.S.C. § 18116.
7 Exec. Order No. 13,988, 86 Fed. Reg. 7,023 (Jan. 20, 2021).
8 Id.
9 Id.
10 See Exec. Order No. 12,250, § 1-2, 45 Fed. Reg. 72,995 (Nov. 4, 1980).
11 42 U.S.C. § 3601–3619.
12 Equal Credit Opportunity Act § 701, 15 U.S.C. § 1691.

13 The information in this article is current as of January 26, 2022. Likely,
there will be additional agency interpretations and additional developments

in the legal challenges to those interpretations that are not addressed in this
article.

II. Bostock v. Clayton County
On June 15, 2020, the Supreme Court held that firing an individual
for being gay or transgender constitutes unlawful discrimination
because of sex in violation of Title VII. 14 The Court explained that an
employer who fires an employee because of the employee’s sexual
orientation or transgender status does so because of “traits or actions
it would not have questioned in members of a different sex,” and thus,
“[s]ex plays a necessary and undisguisable role in the decision, exactly
what Title VII forbids.” 15
The Court focused its analysis on the “express terms” of Title VII. 16
Specifically, Title VII makes it unlawful for an employer to “fail or
refuse to hire or to discharge an individual, or otherwise to
discriminate against any individual . . . because of such individual’s
race, color, religion, sex, or national origin.” 17 In reaching its
conclusion, the Court focused on three specific phrases in the
statute—“because of,” “discriminate against,” and “individual.” 18
The Court started its analysis with a discussion of the meaning of
“because of sex” in Title VII. 19 In doing so, the Court analyzed the
phrase in light of the surrounding statutory language as well as the
causation standard(s) that language may invoke. 20 As to the causation
standard, the Court acknowledged that Title VII allows for liability in
cases where sex was a “motivating factor” in the challenged practice,
but “because nothing in [the Court’s] analysis depend[ed] on the
motivating factor test, [the Court] focus[ed] on the more traditional
but-for causation.” 21 In analyzing that standard, the Court explained
14 Bostock, 140 S. Ct. at 1737.

15 Id.
16 Id.
17 42 U.S.C. § 2000e-2(a)(1).
18 Bostock, 140 S. Ct. at 1739–41. The Bostock decision also discussed the
parties’ disputed definitions of the word “sex” and stated that nothing in the
Court’s approach turned on the outcome of the parties’ dispute. Id. at 1739.
As a result, “for argument’s sake” the Court proceeded “on the assumption
that ‘sex’ signified what the employers suggest, referring only to biological
distinctions between male and female.” Id.
19 Id.
20 Id.
21 Id. at 1740.

that “a but-for test directs us to change one thing at a time and see if
the outcome changes. If it does, we have found a but-for cause.” 22
The Court recognized that an event may have more than one but-for
cause, so that, “[w]hen it comes to Title VII, the . . . but-for causation
standard means a defendant cannot avoid liability just by citing some
other factor that contributed to its challenged employment decision.” 23
Rather, as “long as the plaintiff’s sex was one but-for cause of that
decision, that is enough to trigger the law.” 24 This remains true even if
other factors were more important to the decision than sex. 25 In
reaching this determination, the Court observed that Congress did not
choose any modifying words, such as “primarily” or “solely,” to precede
“because of” in Title VII. 26
The Court also examined the meaning of the phrase
“otherwise . . . discriminate against” as used in Title VII, as
defendants argued that simply showing that an action was taken
“because of” sex was insufficient to prove liability without also
showing that the action taken was discriminatory. 27 The Court
explained that “discriminate against” in the context of the statute can
include “treating [an] individual worse than others who are similarly
situated.” 28 “So,” the Court explained, “an employer who intentionally
treats a person worse because of sex—such as by firing the person for
actions or attributes it would tolerate in an individual of another
sex—discriminates against that person in violation of Title VII.” 29 In
evaluating what “discriminate against” means, the Court emphasized
Title VII’s application to sex discrimination against individuals, not
groups. 30 This was important to the Court because it means it is not a
22 Id. at 1739.
23 Id.
24 Id.; see also id. at 1742.
25 Id. at 1744.
26 Id. at 1739.
27 Id. at 1740.
28 Id.; see also id. at 1753 (“As used in Title VII, the term ‘discriminate
against’ refers to ‘distinctions or differences in treatment that injure

protected individuals.’”) (quoting Burlington N. &. Santa Fe Ry. Co. v. White,
548 U.S. 53, 59 (2006)).
29 Id. at 1740.
30 Id. at 1740–41 (“[The statute] tells us three times—including immediately
after the words “discriminate against”—that our focus should be on

individuals, not groups”).

“defense for the employer to note that, while he treated that
individual woman worse than he would have treated a man, he gives
preferential treatment to female employees overall.” 31
III. Applying Bostock to other federal civil

rights statutes
Consistent with the President’s directive in EO 13,988, federal
agencies evaluated whether Bostock’s reasoning applies to the
statutes and authorities the federal government enforces. In each case
where an agency has issued an interpretation to the public, the
government concluded that Bostock’s reasoning applies with equal
force to Title IX, the FHA, Section 1557 of the ACA, and ECOA. 32
A. Title IX
The Department coordinates the implementation and enforcement of
Title IX by Executive agencies, 33 and the Attorney General has
delegated that authority to the Civil Rights Division (Division). 34
Under that authority, on March 26, 2021, the Division issued a
memorandum to federal agency civil rights directors and general
counsels sharing the Division’s view that the Supreme Court’s
reasoning in Bostock applies to Title IX. 35 This conclusion was based
on the text of Title IX, which provides, “No person in the United
States shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance.” 36
31 Id. at 1741.
32 While this article focuses on Bostock’s application to statutes that prohibit
sex discrimination, the federal government has also taken the position that
Bostock’s analysis informs the determination of the appropriate level of
scrutiny that courts should apply in cases alleging discrimination on the
basis of sexual orientation and gender identity: heightened scrutiny. See, e.g.,
Statement of Interest of the United States at 7–11, Brandt v. Rutledge,
No. 21-cv-450 (June 17, 2021), ECF No. 19.
33 See Exec. Order 12,250, § 1-2.
34 See 28 C.F.R. § 0.51(a) (2021) and 28 C.F.R. § 42.412(a) (1981).

35 See Letter from Pamela S. Karlan, Principal Deputy Assistant Att’y Gen.
for the C.R.Div., to Fed. C.R. Dir.s and Gen. Couns. (Mar. 26, 2021)
[hereinafter “Division Memorandum”].
36 20 U.S.C. § 1681(a) (2021).

The Division’s interpretation was informed by Bostock’s analysis in
part because Title IX and Title VII’s statutory prohibitions against sex
discrimination are similar, and courts consistently look to
interpretations of Title VII to inform Title IX. 37 In the memorandum,
the Division noted that Title IX focuses on individuals when it says
“[n]o person” 38 and that Title IX’s “on the basis of sex” language is
sufficiently similar to “‘because of’ sex under Title VII” such that
Bostock’s analysis applies to Title IX. 39 The similarity between
“because of” and “on the basis of” can be seen in Bostock itself, where
the Supreme Court described Title VII—which includes “because of” in
its statutory text—as “outlaw[ing] discrimination in the workplace on
the basis of race, color, religion, sex, or national origin” 40 This
interpretation of Title IX is consistent with the Supreme Court’s
instruction that, “if we are to give Title IX the scope that its origins
dictate, we must accord it a sweep as broad as its language.” 41 In
closing, the Division made clear that its interpretation did not dictate
the result in a particular case: “Whether allegations of sex
discrimination, including allegations of sexual orientation or gender
identity discrimination, constitute a violation of Title IX in any given
case will necessarily turn on the specific facts, and therefore this
statement does not prescribe any particular outcome with regard to
enforcement.” 42
The Division’s interpretation of Title IX is relevant not only to Title
IX cases, but also to statutes that incorporate Title IX’s standards,
37 See, e.g., Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75 (1992);
Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007);
Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ.,
245 F.3d 1172, 1176 (10th Cir. 2001).
38 See Division Memorandum at 2.
39 See id.; see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)
(“[W]hen a supervisor sexually harasses a subordinate because of the

subordinate’s sex, that supervisor ‘discriminate[s]’ on the basis of sex.”)
(emphasis added); Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979)
(stating that, in enacting Title IX, Congress “wanted to provide individual
citizens effective protection against those [discriminatory] practices”)
(emphasis added).
40 Bostock, 140 S. Ct. at 1737 (emphasis added).
41 N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 521 (1982) (citations and internal
alterations omitted).
42 Division Memorandum, supra note 35, at 3.

such as section 1557 of the ACA, discussed infra, as well as other
authorities that incorporate Title IX’s standards. For example,
Executive Order 13,160 43 aims to ensure equal opportunity in all
federally conducted education and training programs, based on the
notion that the federal government should hold itself to at least the
same principles of nondiscrimination in educational opportunities that
it applies to the educational programs and activities of state and local
governments or private entities receiving federal financial
assistance. 44 This includes Title IX. 45 While Executive Order 13,160
has explicit protections for sexual orientation, its sex discrimination
provisions also should be interpreted to cover sexual orientation and
gender identity, consistent with the Division’s interpretation of sex
discrimination under Title IX. 46
Similarly, the Department of Education issued a notice of
interpretation clarifying that, “[c]onsistent with the Supreme Court’s
ruling and analysis in Bostock, the Department [of Education]
interprets Title IX’s prohibition on discrimination ‘on the basis of sex’
to encompass discrimination on the basis of sexual orientation and
gender identity.” 47 The Department of Education’s interpretation was
based on the Division’s interpretation, post-Bostock caselaw
interpreting Title IX, and textual similarities between Title IX and
Title VII. 48 Like the Division’s interpretation, the Department of
Education clarified that its interpretation “does not determine the
outcome in any particular case or set of facts.” 49
43 Nondiscrimination on the Basis of Race, Sex, Color, National Origin,

Disability, Religion, Age, Sexual Orientation, and Status as a Parent in
Federally Conducted Education and Training Programs, 65 Fed. Reg. 39,775
(June 27, 2000).
44 Id. at § 1-101.
45 Id.
46 Id. at § 5 (stating that the Department is responsible for interpreting
Executive Order 13,160 and setting standards for other agencies to follow).
47 Enforcement of Title IX of the Education Amendments of 1972 with
Respect to Discrimination Based on Sexual Orientation and Gender Identity

in Light of Bostock v. Clayton County, 86 Fed. Reg. 32,637 (June 22, 2021)
[hereinafter “ED Notice”]; see also Letter from Suzanne B. Goldberg, Acting
Assistant Sec’y for C.R. at the Dep’t of Educ., to Educators (June 23, 2021).
48 ED Notice, 86 Fed. Reg. at 32,637–40.
49 Id. at 32,639.

In August 2021, the Division clarified that its interpretation that
Bostock applies to Title IX claims premised on sexual orientation and
gender identity applies with equal force to discrimination against
intersex people. 50 “Intersex” refers to people born with variations in
physical sex characteristics—including genitals, gonads,
chromosomes, and hormonal factors—that do not fit typical definitions
of male or female bodies. The Bostock Court addressed discrimination
against “persons with one sex identified at birth and another today.” 51
Similarly, discrimination against intersex individuals is motivated by
perceived differences between an individual’s specific sex
characteristics and their sex category (either as identified at birth or
some subsequent time). Additionally, discrimination based on
anatomical or physiological sex characteristics is inherently sex-based.
Thus, intersex traits, like gender identity and sexual orientation, are
“inextricably bound up with” sex. 52
B. Fair Housing Act
The FHA prohibits housing providers from discriminating against a
“person . . . because of . . . sex” in the sale or rental of housing. 53 The
U.S. Department of Housing and Urban Development (HUD) has
accepted and investigated complaints alleging discrimination on the
basis of sexual orientation and gender identity under the FHA for over
a decade. For example, HUD has issued guidance stating that
complaints alleging discrimination on the basis of gender identity and
sexual orientation may raise justiciable claims under the FHA. 54 HUD
also articulated this position in its notice-and-comment rulemaking
concerning harassment under the FHA, where the agency reaffirmed
that claims of discrimination based on sexual orientation or gender
identity could and should be investigated as potential sex
discrimination. 55
50 Dep’t of Just. Title IX Legal Manual, Title IX Cover Addendum post-

Bostock, Editor’s Note.
51 Bostock, 140 S. Ct. at 1746.
52 Id. at 1742.
53 42 U.S.C. § 3604.
54 Memorandum from John Trasviña, Assistant Sec’y for Fair Hous. and
Equal Opportunity to Fair Hous. and Equal Opportunity Reg’l Dir. (June 15,
2010).
55 See Quid Pro Quo and Hostile Environment Harassment and Liability for
Discriminatory Housing Practices Under the Fair Housing Act, 81 Fed. Reg.

On February 11, 2021, HUD issued a memorandum (HUD
Memorandum) directing the Office of Fair Housing and Equal
Opportunity and HUD-funded fair housing partners to “accept for
filing and investigate all complaints of sex discrimination, including
discrimination because of gender identity or sexual orientation” and to
“administer and fully enforce the Fair Housing Act to prohibit
discrimination because of sexual orientation and gender identity,”
consistent with the Bostock ruling. 56 This memorandum relied on a
legal memorandum provided by HUD’s Office of the General Counsel,
concluding that Bostock applies to the FHA, not only because Title VII
and the FHA share relevant text, but because they also share a
comparably broad purpose of “eradicat[ing] discriminatory
practices.” 57
C. Section 1557 of the ACA
Section 1557 of the ACA prohibits discrimination in various health
programs and activities “on the ground prohibited under . . . Title IX
of the Education Amendments of 1972.” 58 The Department of Health
and Human Services (HHS) Office for Civil Rights (OCR) issued a
final rule implementing section 1557 in 2016. 59 The rule defined “on
63,054, 63,058–59 (Sept. 14, 2016); see also Equal Access to Housing in HUD
Programs Regardless of Sexual Orientation or Gender Identity, 77 Fed. Reg.
5,662–63, 5,671 (Feb. 3, 2012) (a “claim of discrimination based on
nonconformity with gender stereotypes may be investigated and enforced
under the Fair Housing Act as sex discrimination”); Equal Access in
Accordance With an Individual’s Gender Identity in Community Planning
and Development Programs, 81 Fed. Reg. 64,763, 64,770 (Sept. 21, 2016)
(“reaffirm[ing] [HUD’s] view that discrimination based on gender identity is
sex discrimination” and that “[d]iscrimination because of gender identity is
covered within the Fair Housing Act’s prohibition of sex discrimination”).
56 Memorandum from Jeanine M. Worden, Acting Assistant Sec’y for Fair
Hous. and Equal Opportunity to Office of Fair Hous. & Equal Opportunity,
Fair Hous. Assistance Program Agencies and Fair Hous. Initiatives Program
Grantees (Feb. 11, 2021).
57 See Memorandum from Damon M. Smith, Principal Deputy Gen. Couns., to
Jeanine M. Worden, Acting Assistant Sec'y for Fair Hous. and Equal
Opportunity (Feb. 9, 2021) (citing Texas Dep't. of Hous. and Cmty. Affairs v.
Inclusive Cmlys. Project, Inc., 576 U.S. 519, 525 (2015)).
58 42 U.S.C. § 18116(a).
59 Nondiscrimination in Health Programs and Activities, 81 Fed. Reg. 31,376
(May 18, 2016) (formerly codified at 45 C.F.R. pt. 92).

the basis of sex” to include discrimination “on the basis of gender
identity.” 60
Several plaintiffs challenged this rule under the Administrative
Procedure Act 61 (APA) and the Religious Freedom Restoration Act
(RFRA), 62 and in 2019, a U.S. district court in Texas vacated the rule’s
inclusion of gender identity as prohibited sex discrimination. 63 More
recently, two decisions prospectively enjoined HHS from interpreting
section 1557 against religiously affiliated plaintiffs in a manner that
would require them to perform or provide insurance coverage for
gender-transition procedures. 64
In 2020, HHS OCR issued a revised final rule 65 that significantly
modified the 2016 final rule, including removing the definition of “on
the basis of sex” in its entirety. Several groups of plaintiffs challenged
the 2020 final rule in multiple courts. Two district courts enjoined
OCR from enforcing its repeal of certain parts of the 2016 final rule,
including the portion of the definition of “on the basis of sex” that
addressed “sex stereotyping.” 66
Following the Supreme Court ruling in Bostock and the issuance of
EO 13,988, HHS issued a notice informing the public that OCR would
interpret and enforce section 1557’s prohibition on sex discrimination
to include discrimination on the basis of sexual orientation and gender
60 While the 2016 rule recognized that discrimination on the basis of sexual
orientation may be prohibited under Section 1557, HHS did not include such
prohibition in the regulatory language. See id. at 31,387–90.
61 5 U.S.C. § 551.
62 42 U.S.C. §§ 2000bb-2000bb-4.
63 Franciscan Alliance, Inc. v. Azar, 414 F. Supp. 3d 928 (N.D. Tex. 2019).
64 Religious Sisters of Mercy v. Azar, 513 F.Supp. 3d 1113 (D.N.D. 2021),
appeal docketed, No. 21-1890 (8th Cir. Apr. 20, 2021); Franciscan All., Inc.
v. Becerra, No. 16-cv-00108-O, 2021 WL 3492338 (N.D. Tex. Aug. 9. 2021),
appeal docketed, No. 21-11174 (5th Cir. Dec. 6, 2021).
65 Nondiscrimination in Health and Health Education Programs or Activities,
Delegation of Authority, 85 Fed. Reg. 37,160 (June 19, 2020) (codified at 45

C.F.R. pt. 92).
66 Walker v. Azar, 480 F. Supp. 3d 417 (E.D.N.Y. 2020); Whitman-Walker
Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs., 485 F. Supp. 3d 1 (D.D.C.
2020).

identity. 67 The notice relied on the reasoning in Bostock, the Division’s
interpretation, and post-Bostock caselaw interpreting Title IX. 68
D. ECOA
In March 2021, the Consumer Financial Protection Bureau (CFPB),
responsible for administering and enforcing ECOA and its
implementing regulations, issued an interpretive rule stating that the
prohibition against sex discrimination in ECOA and its implementing
regulations encompasses discrimination based on sexual orientation
and gender identity. 69
CFPB reached this determination based several factors, including
(1) “[b]efore the issuance of the Bostock opinion, at least twenty states
and the District of Columbia prohibited discrimination on the bases of
sexual orientation and/or gender identity either in all credit
transactions or in certain ([for example], housing-related) credit
transactions;” 70 (2) CFPB “previously had indicated that legal
developments would lead to prohibitions against sex discrimination
being interpreted to afford broad protection against discrimination on
the bases of sexual orientation and gender identity;” 71 (3) “ECOA and
Title VII are generally interpreted consistently;” 72 (4) ECOA and Title
VII share textual similarities regarding causation and focus on the
individual; 73 (5) “sexual orientation discrimination and gender
identity discrimination necessarily involve consideration of sex;” 74 and
(6) discrimination on the basis of “sex” also includes discrimination
“motivated by perceived nonconformity with sex-based or gender-
based stereotypes, including those related to gender identity and/or
sexual orientation, as well as discrimination based on an applicant’s
associations.” 75
67 Notification of Interpretation and Enforcement of Section 1557 of the
Affordable Care Act and Title IX of the Education Amendments of 1972,

reprinted at 86 Fed. Reg. 27,984 (May 25, 2021).
68 Id.
69 Equal Credit Opportunity (Regulation B); Discrimination on the Bases of
Sexual Orientation and Gender Identity, 86 Fed. Reg. 14,363 (Mar. 16, 2021).
70 Id. at 14,363.
71 Id. at 14,364.
72 Id.
73 Id. at 14,365.
74 Id.
75 Id. at 14,365–66.

IV. Looking ahead to Bostock’s impact in
the courts beyond Title VII
Cases interpreting Bostock’s application to sex discrimination
prohibitions beyond Title VII have come to courts in two ways: cases
where private plaintiffs argue that Bostock applies to other statutes
and cases where private plaintiffs challenge the government’s
interpretation regarding Bostock’s application to the statutes they
enforce.
A. Cases addressing Bostock’s application to Title IX
and section 1557 of the ACA
In the months following the Bostock decision, multiple federal courts
have held that Title IX protects students from discrimination on the
basis of gender identity and sexual orientation. 76 This is consistent
with decisions in the Sixth and Seventh Circuits that reached this
conclusion even before Bostock. 77
In Grimm v. Gloucester County School Board, the Fourth Circuit
made clear that, “[a]lthough Bostock interprets Title VII . . . , it guides
our evaluation of claims under Title IX.” 78 That case involved a school
board’s policy that required students to use restrooms matching their
sex assigned at birth, and that provided single-stall restrooms as an
76 See, e.g., Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020),
as amended (Aug. 28, 2020), reh’g en banc denied, 976 F. 3d 399 (4th Cir.
2020), cert. denied, 2021 WL 2637992 (June 28, 2021) (gender identity);
B.P.J. v. W. Virginia State Bd. of Educ., No. 2:21-CV-00316, 2021 WL
3081883, at *7 (S.D.W. Va. July 21, 2021) (gender identity); Koenke v. Saint
Joseph's Univ., No. 19-4731, 2021 WL 75778, at *2 (E.D. Pa. Jan. 8, 2021)
(sexual orientation), appeal docketed on other grounds, No. 21-1057 (3rd Cir.
Jan. 12, 2021); Doe v. Univ. of Scranton, No. 3:19-CV-01486, 2020 WL
5993766, at *5 n.61 (M.D. Pa. Oct. 9, 2020) (sexual orientation).
77 See Whitaker By Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ.,
858 F.3d 1034, 1049–50 (7th Cir. 2017) (transgender boy was likely to succeed
on his claim that school district violated Title IX and the Equal Protection
Clause by excluding him from the boys’ restroom); Dodds v. U.S. Dep’t of Educ.,
845 F.3d 217, 221–22 (6th Cir. 2016) (per curiam) (school district that sought
to exclude transgender girl from girls’ restroom was not likely to succeed on
the claim because Title IX prohibits discrimination based on sex stereotyping
and gender nonconformity).
78 Grimm, 972 F.3d at 616.

‘“alternative”’ for transgender students. 79 Plaintiff Gavin Grimm, a
transgender boy, sued the School Board, claiming that the policy
violated Title IX and the Equal Protection Clause. 80 When evaluating
Grimm’s Title IX claims, the court stated that, “[a]fter the Supreme
Court’s recent decision in Bostock[,] . . . we have little difficulty
holding that a bathroom policy precluding Grimm from using the boys
restrooms discriminated against him ‘on the basis of sex.’” 81 The court
relied on the Bostock Court’s statement that “it is impossible to
discriminate against a person for being . . . transgender without
discriminating against that individual based on sex.” 82 “Therefore,”
the court concluded, “the Board’s policy excluded Grimm from the boys
[sic] restrooms ‘on the basis of sex.’” 83 “Grimm was treated worse than
students with whom he was similarly situated because he alone could
not use the restroom corresponding with his gender,” and as such, the
School Board’s policy discriminated against Grimm on the basis of sex
in violation of Title IX. 84
Few courts have had the occasion to opine on the application of
Bostock to section 1557 of the ACA in private litigation. For the three
that have, two held that the ACA follows the reasoning set forth in
Bostock. In the first suit to address the issue post-Bostock, a district
court in Arizona declined to enjoin Arizona’s Medicaid agency’s
exclusion of gender reassignment surgeries from coverage, finding the
plaintiffs’ reliance on Bostock to prohibit gender identity
79 Id. at 593.
80 Id. As noted above, this article is focused on Bostock’s application to federal
civil rights statutes. The Grimm decision, however, like several other cases
evaluating allegations of sexual orientation or gender identity discrimination,
includes an Equal Protection Clause analysis. In Grimm, the court concluded
that heightened scrutiny applied “because the bathroom policy rests on sex-
based classifications and because transgender people constitute at least a
quasi-suspect class.” Id. at 607 (emphasis in original). Applying heightened
scrutiny, the court concluded that the bathroom policy was not substantially
related to the School Board’s purported goal of protecting students’ privacy
and was instead based on “‘misconception and prejudice’ against Grimm.” Id.
at 613–15.
81 Id. at 616.
82 Id. (quoting Bostock, 140 S. Ct. at 1741).
83 Id. at 616–17.
84 Id. at 618–19.

discrimination under section 1557 “unpersuasive.” 85 However, just two
months later, in a suit challenging a health insurer’s denial of
coverage to treat gender dysphoria, a district court in Washington
State held that “[i]t would be logically inconsistent with Bostock to
find that Title IX permits discrimination for being transgender,” and
thus, the plaintiff had stated a viable claim for sex discrimination on
the basis of gender identity under Title IX and by extension
section 1557. 86 A third case involved a transgender man who sued a
hospital, alleging it had canceled his hysterectomy after learning he
was transgender. In that case, the court held that Bostock “made
clear” that the position stated in the HHS Notice interpreting
section 1557 to prohibit discrimination on the basis of gender identity
was “already binding law.” 87 And under the “logic and instruction of
Bostock,” the defendant hospital “inescapably” intended to rely on
plaintiff’s sex in its decision making when canceling plaintiff’s
procedure. 88
B. Legal challenges to the administration’s
applications of Bostock to other federal statutes
Plaintiffs have challenged agencies’ interpretations of Bostock under
three primary theories: as violations of the APA, Religious Freedom
Restoration Act, 89 and the Constitution.
In School of the Ozarks v. Biden, a private religious college sought to
enjoin the HUD Memorandum, alleging the Memorandum prohibited
the College’s housing policies in violation of the APA, RFRA, and
85 Hennessy-Waller v. Snyder, 529 F. Supp. 3d 1031, 1044 (D. Ariz. 2021)

(“The Supreme Court expressly limited its holding to Title VII claims
involving employers who discriminated against employees . . . Bostock did not
involve or purport to deal with a state Medicaid plan exclusion for surgical
treatment for gender dysphoria . . .”), appeal docketed, No. 21-15668 (9th Cir.
Apr. 19, 2021).
86 C.P. v. Blue Cross Blue Shield of Illinois, 536 F. Supp. 3d 791, 796 (W.D.
Wash. 2021).
87 Hammons v. Univ. of Maryland Med. Sys. Corp., No. DKC 20-2088, 2021
U.S. Dist. LEXIS 140856, at *44 (D. Md. July 28, 2021).
88 Id. at 49.
89 42 U.S.C. § 2000bb-4.

multiple provisions of the U.S. Constitution. 90 The court denied
Plaintiff’s motions, finding they had failed to show the requisite
elements of injury-in-fact, causation, and redressability to establish
Article III standing. 91 The court noted that enjoining the HUD
Memorandum would not “foreclose the possibility that [the college]
could be held liable for FHA violations,” as any “potential liability [it]
incurs for violating the FHA would flow directly from the Act itself, as
well as applicable case law including Bostock, and not from the
Memorandum.” 92
Other plaintiffs have challenged the HHS Notice on similar grounds.
In a suit brought by two medical associations and a private physician,
plaintiffs allege that the HHS Notice violates the APA, RFRA, and the
First Amendment because it requires them to “either act against their
medical judgment and deeply held convictions” by providing gender
affirming care, or “succumb to huge financial penalties, lose
participation in Medicaid and other federal funding, and, as a
practical matter, lose the ability to practice medicine in virtually any
setting.” 93 A second complaint, a class action brought by two medical
doctors on behalf of “all health care providers subject to section 1557,”
alleges violations of the APA and the Declaratory Judgment Act. 94 The
plaintiffs ask the court to enjoin the Secretary from interpreting
section 1557 to prohibit discrimination on the basis of sexual
orientation and gender identity. 95 They also seek a declaration that
neither section 1557 nor Bostock prohibit discrimination on the basis
of sexual orientation and gender identity. They claim that existing law
allows such discrimination “as long as they would have acted in the
same manner had the patient had been a member of the opposite
biological sex.” 96 A third complaint, brought by a member organization
for Christian employers, alleges HHS’ notice violates RFRA, the First
90 Sch. of the Ozarks, Inc. v. Biden, No. 21-03089-CV, 2021 U.S. Dist. LEXIS
105775 (W.D. Mo. June 4, 2021), appeal argued, No. 21-2270 (8th Cir. Nov.
17, 2021).
91 Id. at *6.
92 Id at *9.
93 Complaint at 2, American College of Pediatricians v. Becerra, No. 21-cv-
195 (E.D. Tenn. Aug. 26, 2021), ECF No. 1 .

94 Complaint, Neese v. Becerra, No. 21-CV-00163 (N.D. Tex. Aug. 25, 2021),
ECF No. 1.
95 Id. ¶ 34.
96 Id. ¶ 36.

Amendment, and the APA because it violates “their medical judgment
and religious beliefs” and serves to “compel and restrict based on
viewpoint those providers’ speech”. 97 Plaintiff organization asks the
court to enjoin HHS from a range of activities, including “compelling
speech on gender identity issues,” such as use of preferred pronouns in
speaking or charting. 98 There have been no opinions in these matters
as of this writing.
Finally, 20 states have challenged the Department’s and the
Department of Education’s interpretations of Title IX as prohibiting
discrimination based on sexual orientation and gender identity. 99 The
states allege the interpretations violate the APA, the Spending
Clause, the First Amendment, the Tenth Amendment, and separation
of powers under Article I of the Constitution. 100 The plaintiffs seek to
have the Department of Education’s interpretation and related fact
sheet set aside, a preliminary and permanent injunction prohibiting
the Department and the Department of Education from enforcing the
interpretation or fact sheet, a declaration that the plaintiffs are able
to maintain facilities and sports teams segregated by sex assigned at
birth, and a declaration that the plaintiffs are not required to use an
individual’s preferred pronouns. 101 There have been no opinions in
this matter as of this writing.
V. Conclusion
The federal government’s application of Bostock’s reasoning to other
statutes it enforces, the subsequent legal challenges to these
interpretations, and private plaintiff’s lawsuits seeking to apply
Bostock beyond Title VII ensure that the application of existing sex
discrimination laws to claims based on sexual orientation, intersex
traits, and gender identity will be a swiftly evolving area of law. The
97 Christian Emps. Alliance v. EEOC, No. 21-cv-00195 (D.N.D. Oct. 18, 2021).
98 Id.
99 Complaint, Tennessee, et. al, v. U.S. Dep’t of Educ., No. 3:21-CV-308 (E.D.
Tenn. Aug. 30, 2021). The complaint also names the Equal Employment
Opportunity Commission (EEOC) as a defendant and challenges EEOC’s
post-Bostock interpretations of Title VII.
100 Id. at ¶¶ 110–155, 188–196. Note that despite the Department of Justice
being named as a Defendant and despite the Complaint’s discussion of DOJ’s

March 26, 2021 interpretation, none of the Complaint’s counts name DOJ.
See id. ¶¶ 110–196.
101 Id., at Request for Relief and Demand for Judgment, ¶¶(A)-(I).

Civil Rights Division is available to consult with U.S. Attorneys’
Offices and federal partners as questions arise.
About the Authors
Alyssa Connell Lareau (she/her) has been an attorney in the Civil
Rights Division since 2009. Since 2014, Alyssa has worked as an
attorney with the Federal Coordination and Compliance Section,
where her work focuses on laws that prohibit discrimination in
federally conducted and assisted programs and activities on the basis
of race, color, national origin, sex, sexual orientation, intersex traits,
and gender identity. Alyssa co-chairs the Civil Rights Division’s
LGBTQI+ Working Group. Alyssa received her B.A. from Wesleyan
University and her J.D. from Georgetown University Law Center. She
was selected as one of the National LGBT Bar Association’s Best
LGBT Lawyers Under 40, received the Civil Rights Division’s John
Dunn Award, the Department’s Assistant Attorney General’s
Distinguished Service Award, and has published on legal issues
related to unnecessary surgeries on intersex infants.
Dylan Nicole de Kervor (she/her) is a Section Chief with the U.S.
Department of Health and Human Services Office for Civil Rights,
where she is the team lead for section 1557 rulemaking and
enforcement. Before joining HHS, Dylan served as an attorney in the
Civil Rights Division’s Federal Coordination and Compliance Section.
Dylan received her B.A. from the University of California at San
Diego and holds a J.D. and M.S.W. from the University of California
at Berkeley. She has been recognized by the National LGBT Bar
Association as a Best LGBT Lawyer Under 40 and has been awarded
the Civil Rights Division’s John Dunn Award, DOJ Assistant Attorney
General’s Distinguished Service Award, and HHS Secretary’s Award
for Distinguished Service.
***
The authors wish to thank their colleagues from the Civil Rights
Division’s Appellate Section, Educational Opportunities Section, and
Employment Litigation Section for their assistance with this article.


A Case Study for Using Social
Media in Civil Rights
Investigations
Elise Sandra Shore
Trial Attorney
Housing & Civil Enforcement Section
Jimmy Anthony Rodriguez
Assistant U.S. Attorney
Southern District of Texas
I. Introduction
The power and prevalence of social media in today’s society is
undeniable. The term “social media” encompasses a wide range of
platforms, applications, and tools, with the primary feature being the
ability to connect with others and share content in a variety of forms,
including comments, photos, and videos. Approximately seven-in-ten
Americans use social media to connect with others, to access news
content, to share information, and to entertain themselves. 1 At the
global level, social media users number in the billions. 2 Because social
media is ubiquitous, it is important for civil litigators to understand
how it can be utilized as both an information-gathering tool and a
potential source of evidence. 3
This article explores the use of publicly available social media as a
source of information for developing a civil rights matter through a
case study of United States v. Jarrah and Land Guardian, Inc.
f/d/b/a Gaslamp (Gaslamp). 4 Part II provides background
1 Social Media Fact Sheet, PEW RSCH. CTR. (Apr. 7, 2021),

https://www.pewresearch.org/internet/fact-sheet/social-media/.
2 The Sedona Conference, Primer on Social Media, 20 SEDONA CONF. J. 1, 8
(2019) [hereinafter Sedona Primer on Social Media].

3 The Sedona Conference, Commentary on ESI Evidence & Admissibility, 22
SEDONA CONF. J. 83, 91, 121–22 (2021) [hereinafter Sedona Commentary on

ESI Evidence & Admissibility]; Sedona Primer on Social Media, supra note 2,
at 8.
4 Complaint, United States v. Jarrah, No. 16-cv-2906 (S.D. Tex.
Sept. 28, 2016), ECF No. 1 [hereinafter United States’ Complaint].

information regarding the incident that led to extensive social media
and press coverage and, ultimately, a private lawsuit challenging
Gaslamp’s alleged discriminatory conduct. Part III discusses the
United States’ lawsuit against Gaslamp and its owner, along with the
statutory framework of Title II of the Civil Rights Act of 1964, which
prohibits discrimination in places of public accommodation. 5 Part IV
examines relevant legal considerations when social media is used to
gather information and provides some practical tips.
II. The Ball incident and the social media

response to Gaslamp’s alleged
discriminatory conduct
The establishment known as Gaslamp was a three-story bar and
lounge in Houston’s popular “Midtown” neighborhood. 6 The alleged
discriminatory actions at issue in the Gaslamp litigation first received
widespread attention in September 2015. Three African-American
men arrived at Gaslamp and were advised that they were required to
pay a $20 cover charge to enter the bar. 7 They refused to pay the fee. 8
These same men also noticed that Gaslamp employees were allowing
all white patrons to enter without paying a fee. 9 They continued to
observe and saw that other non-white patrons (African-American,
Asian, and Hispanic), like them, were being required to pay a cover
charge to enter the bar. 10 One of the men, Brandon Ball, decided to
write about this experience and post it on Facebook:
5 Civil Rights Act of 1964 tit. 2, 42 U.S.C. §§ 2000a to 2000a-6.

6 United States’ Complaint at ¶ 7.
7 Complaint at ¶ 9, Ball v. Texas Guardian, Inc. et al., No. 4:15-cv-03181
(S.D. Tex. Oct. 29, 2015), ECF No. 1 [hereinafter Private Plaintiffs’
Complaint].
8 Id. at ¶ 10.
9 Id. at ¶ 11.
10 Id. at ¶ 12.

11
11Brandon Ball, FACEBOOK (Sept. 11, 2015),

https://www.facebook.com/b0ycottGaslamp/.

The three men ultimately filed a private lawsuit asserting, among
other causes of action, claims of discrimination under Title II of the
Civil Rights Act of 1964, 42 U.S.C. § 2000a. 12
The circumstances surrounding Mr. Ball’s post and Gaslamp’s
alleged discriminatory actions received significant press coverage. 13
As a result of the attention Gaslamp’s alleged discriminatory actions
received, persons who believed they experienced similar
discriminatory treatment began to connect on social media. To
facilitate this connection, a “Boycott Gaslamp” Facebook group was
formed for the purpose of providing a forum for users to share their
experiences.
12 See Private Plaintiffs’ Complaint, supra note 7. The Ball plaintiffs filed an
amended complaint captioned Ball, Scarbrough, Piggee v. Ayman Jarrah and
Land Guardian, Inc., in December 2015. Amended Complaint, Ball,
No. 15-cv-03181, ECF No. 6. The case was settled and voluntarily dismissed
on November 18, 2016. See Joint Voluntary Dismissal, Ball, No. 15-cv-02181,
ECF No. 70.
13 See, e.g., Phaedra Cook, Midtown Nightclub Accused of Discriminatory
Practices, HOUSTONPRESS (Sept. 14, 2015), https://www.houstonpress.com/

restaurants/midtown-nightclub-accused-of-discriminatory-practices-7762250;
Jace Larson, Racism claims at Houston night clubs tested, CLICK 2 HOUSTON
(Oct. 29, 2015), https://www.click2houston.com/news/2015/10/19/racism-
claims-at-houston-night-clubs-tested/(explaining results of TV station’s
undercover “tests” of Gaslamp’s admission policies, indicating disparate
treatment); Craig Hlavaty, Lawyer for Midtown’s Gaslamp Releases Rebuttal
Video to Recent Racial Allegations, HOUSTON CHRON. (Sept. 18, 2015),
https://www.chron.com/entertainment/restaurants-bars/article/Lawyer-for-
Midtown-s-Gaslamp-releases-rebuttal-6514225.php#photo-8655184
(reporting on Gaslamp’s attorney’s YouTube video defending Gaslamp policy
based on purported dress code and need to maintain male/female ratio);
Tamara Tabo, Three Black Lawyers Don’t Walk Into A Bar: Allegations Of
Racism At A Houston Nightclub, ABOVE THE LAW (Sept. 21, 2015),
https://abovethelaw.com/2015/09/three-black-lawyers-dont-walk-into-a-bar-
allegations-of-racism-at-a-houston-nightclub/(“The fact is federal
discrimination law doesn’t cover night clubs.”). For an analysis on Gaslamp,
including social media posts reporting discriminatory conduct and dress code
policies in the context of the history of the Civil Rights movement and Title
II, see Shaun Ossei-Owusu, Velvet Rope Discrimination, 107 VA. L. REV. 683,
685 (2021) (describing, inter alia. another incident in 2015—captured in real
time on video—during which several women of color attempted to gain access
into Gaslamp but were refused entry and told by Gaslamp employees to
“Have a good night in the ‘hood’ . . . Tell Tyrone I said hi”).

Individuals who had been denied admission to or had witnessed
others being denied admission to Gaslamp used this group to tell their
stories. 14 For example, a local musician posted that she had witnessed
two African-American friends who were denied admission to Gaslamp
based on a purported dress code violation, while other white patrons
with the same dress were permitted to enter. Another post on the
Boycott Gaslamp group contained information about a news story that
originally aired on a local television station (Channel 2), including a
photo of Gaslamp’s dress code posted outside the nightclub after the
September 15, 2015, incident:
15
Other social media platforms, including Yelp, Travel Advisor, and

Zomato websites, contained posts of similar stories about Gaslamp’s
alleged discriminatory door policies, some of which were re-posted on
the Boycott Gaslamp Facebook group. 16
14 See Boycott Gaslamp Group, FACEBOOK,

https://www.facebook.com/b0ycottGaslamp/ (created Sept. 16, 2015).
15 Channel 2 News, FACEBOOK (Sept. 16, 2015),
https://www.facebook.com/b0ycottGaslamp.
16 See id.

III. Title II of the Civil Rights Act of 1964
and the United States’ investigation of,
and lawsuit against, Gaslamp
A. Title II of the Civil Rights Act of 1964
As noted above, the United States brought its lawsuit against
Gaslamp under Title II of the Civil Rights Act of 1964. Title II
prohibits discrimination on the basis of race, color, religion, or
national origin in places of public accommodation, such as
restaurants, hotels, movie theaters, nightclubs, stadiums, and other
places of exhibition or entertainment. 17 Title II was designed to give
“full effect to Congress’ overriding purpose of eliminating the affront
and humiliation” involved in discriminatory denials of access to public
places. 18
Title II provides, in pertinent part:
All persons shall be entitled to the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public
accommodation . . . without discrimination or
segregation on the ground of race, color, religion, or
national origin. 19
Under this law, the Civil Rights Division can obtain injunctive relief
that changes policies and practices to remedy customer
discrimination.
For the Department to file suit under Title II, Gaslamp must be a
“place of public accommodation” whose “operations affect commerce,” 20
and the Attorney General must have reasonable cause to believe that
Gaslamp is engaged in a pattern or practice of discrimination. 21 For a
17 Civil Rights Act of 1964 § 201, 42 U.S.C. § 2000a(b).

18 United States v. DeRosier, 473 F.2d 749, 751 (5th Cir. 1973).
19 Civil Rights Act of 1964 § 201, 42 U.S.C. § 2000a(a).
20 Civil Rights Act of 1964 § 201, 42 U.S.C. § 2000a(b).
21 Civil Rights Act of 1964 § 206, 42 U.S.C. § 2000a-5(a). Individuals also
have a private right of action under Title II, 42 U.S.C. § 2000a-3(a).

Discrimination that is unlawful under Title II may also give rise to claims
under other federal or state laws, such as 42 U.S.C. § 1981. See 42 U.S.C. §
2000a-6(b) (acknowledging other remedies may be available to pursue

discussion of the Department’s pattern or practice authority and the
standard to demonstrate a pattern or practice, see The Attorney
General’s Pattern-or-Practice Authority: A Critical Tool for Civil
Rights Enforcement in this issue.
B. Use of social media and the investigatory process
in Gaslamp
There are several steps in the Department’s investigatory process
that precede filing a complaint. As Gaslamp demonstrates, social
media evidence has the potential to play an important role at each
stage.
First, during the pre-investigation stage of a case, the goal is to
gather as much public information as possible to determine, among
other things, whether the factual allegations could constitute a civil
rights violation and whether the conduct at issue is an isolated
incident or part of a pattern of potentially illegal behavior. 22 The
Department may become aware of a potential civil rights violation in a
wide variety of ways, including complaints filed directly with the
Department, media accounts of an incident, and information from
community partners. 23 Upon receiving such information, the Civil
Rights Division or a U.S. Attorney’s office may engage in a pre-
investigation review to determine whether a formal investigation is
warranted. 24 The pre-investigation review involves speaking to
complainants and reviewing complainant materials and publicly
available information. 25
Social media may be how the Department is first made aware of a
potential civil rights violation. It is also a valuable source of
information for determining whether a formal investigation is
warranted. 26 This is particularly true in today’s society, where social
violation of other federal or state laws that address nondiscrimination in

public accommodations).
22 See supra, Section III.A; JUSTICE MANUAL 8.2.110.
23 Supra note 22.

24 See JUSTICE MANUAL 8-2.110.
25 Id.
26 See id. (“Pre-investigation review includes taking actions such
as . . . reviewing publicly available information.”).

media is such a common and popular method of communication and
the modern public square for airing grievances. 27
As the events in the Gaslamp matter show, persons complaining
about alleged civil rights violations, such as experiencing
discrimination, may want others to be aware of their complaints and
may post them in public forums. In Gaslamp, there were numerous
public-content posts (or re-posts from other platforms) on Facebook
corroborating the Ball Plaintiffs’ claims of discrimination and posts
showing that their experience indicated a pattern of illegal behavior.
The Department became aware of Gaslamp through these social
media posts, including the Boycott Gaslamp Facebook group.
Consistent with the methods discussed in Justice Manual 8-2.100, 28
the Department’s investigation included reviewing publicly available
social media and speaking with the individuals who filed the private
lawsuit against Gaslamp, posted complaints against Gaslamp, or both.
Second, once a formal investigation is initiated, information and
evidence must be gathered to obtain authorization to institute a civil
suit against the civil rights violator. 29 Again, social media posts were
particularly useful in the Gaslamp matter to demonstrate that there
was a pattern and practice of unlawful behavior and that the
treatment of the Ball plaintiffs was not an isolated event.
After authorization to file a lawsuit is obtained, part of the pre-suit
process includes notifying the person or entity responsible for the
alleged violation of the potential lawsuit and attempting to settle the
dispute before filing the complaint. 30 Social media information, even if
not in an admissible form, can also be useful to convince a party that,
because the evidence against them is substantial, they should
consider an early resolution of the matter.
After an investigation of Gaslamp’s actions and pre-suit
negotiations, the Department filed a lawsuit against Gaslamp’s
27 The percentage of American adults who use at least one social media site
has risen from approximately 11% in 2006 to almost 72% in 2021. Social
Media Fact Sheet, PEW RSCH. CTR. (Apr. 7, 2021),
https://www.pewresearch.org/internet/fact-sheet/social-media/. In 2021, 84%
of those age 18–29 reported that they use at least one social media site. Id.
28 JUSTICE MANUAL 8-2.100.
29 See JUSTICE MANUAL 8-2.130.
30 See Exec. Order No. 12988, 61 Fed. Reg. 4729 (Feb. 7, 1996) (requiring
pre-filing notice of complaint and use of “reasonable efforts” to attempt to

achieve settlement).

owners and operators in September 2016. 31 The suit alleged that,
since at least October 2014, the defendants had engaged in a pattern
or practice of discrimination on the basis of race, color, and national
origin, in violation of Title II of the Civil Rights Act of 1964. 32 As the
Ball plaintiffs had witnessed, posted on Facebook, and alleged in their
complaint, the government’s complaint alleged that Gaslamp’s owner
and operator discriminated against African-American, Hispanic, and
Asian-American patrons by charging them a cover charge to enter the
establishment, while not charging similarly situated white persons. 33
The complaint also alleged that (1) Gaslamp had denied non-white
persons the right to enter the establishment while admitting similarly
situated white patrons by selectively enforcing a dress code, 34 and
(2) Defendant Jarrah, Gaslamp’s principal operator, was responsible
for, among other things, instructing employees to carry out
discriminatory policies and used racial slurs when providing such
instructions. 35
IV. Legal considerations

A. Professional responsibility issues
Attorneys must be cognizant of the applicable rules of professional
conduct when accessing social media for a case. Indeed, an attorney
should have the skills necessary to access and investigate social media
evidence as part of an attorney’s affirmative duty to provide
competent legal representation. 36 The need to access social media
31 See United States’ Complaint, supra note 4.

32 Id. at ¶ 16–20.
33 Id. at ¶ 16.
34 Id. at ¶ 19.
35 Id. at ¶ 17.
36 Model Rule of Professional Conduct 1.1 provides that “[a] lawyer shall
provide competent representation to a client. Competent representation

requires the legal knowledge, skill, thoroughness and preparation reasonably
necessary for the representation.” MODEL RULES OF PRO. CONDUCT r. 1.1.
Commentators have pointed out that Model Rule 1.1 arguably creates an
obligation “for lawyers to inquire, where possible, into social networking
information that may hold relevance for a matter . . . [And] the gathering of
social networking information might, in some cases, be required to file a
competent initial pleading.” Steven C. Bennett, Ethical Limitations on
Informal Discovery of Social Media Information, 36 AM. J. TRIAL ADVOC. 473,
478–79 (2013); Agnieszka McPeak, Social Media Snooping and Its Ethical

platforms for information may arise in a wide variety of
circumstances, which implicate a number of ethical considerations.
Let us say, for example, that a person posts a narrative on a Facebook
page, like the posts described above concerning Gaslamp. An attorney
discovers these posts as part of their pre-investigation process. The
attorney will likely want to contact and communicate with the
witness, perhaps to determine if they would be willing to participate
in an interview. How should this be accomplished? A person typically
needs a Facebook account to communicate with someone else on
Facebook, and other social media platforms function similarly. It is
certainly not advisable for an attorney, or someone from their staff, to
use a personal account, which may allow the person to be contacted to
gain access to the attorney’s or staff member’s personal information
and posts. 37 Another mistake, and potential ethical violation, would be
to create a false or anonymous Facebook account, which is discussed
below. The Gaslamp investigation did not employ either of these
approaches.
Attorneys should be aware of which state’s disciplinary rules apply
to them and familiarize themselves with those rules. 38 Under the
Model Rules of Professional Conduct, for example, a lawyer has a duty
to avoid deceiving or making misrepresentations to third parties. 39
Bounds, 46 ARIZ. ST. L.J. 845, 875 (2014) (“The existing ethics rules should be
read to affirmatively include social media content as part of the duty to
investigate facts.”).
37 See JUSTICE MANUAL 1-9.000 (Personal Use of Social Media. Department
attorneys should avoid using social media in a way that “may cause the
attorney to be called as a witness” or may implicate discovery disclosure
obligations).
38 See generally MODEL RULES OF PRO. CONDUCT r. 8.5 (the conduct of a
lawyer is subject to the disciplinary authority of both the jurisdiction in

which she is licensed, and where the lawyer’s conduct occurred). Department
attorneys should seek guidance as needed from their Professional
Responsibility Officer (PRO) and the Professional Responsibility Advisory
Office (PRAO); see Laura Carroll et. al., Professional Responsibility: How to
Keep Your Bar License, 68 DOJ J. FED. L. & PRAC., no. 4, 2020 (“Department
attorneys are encouraged to consult with their PROs and/or contact PRAO
whenever they have any questions or concerns about their professional
responsibility obligations.”).
39 MODEL RULES OF PRO. CONDUCT r. 4.1 (Truthfulness in Statements to
Others), 8.4 (Misconduct).

With respect to support staff, 40 a lawyer cannot allow an employee or
agent to engage in conduct that would be in violation of the rules of
professional conduct if done by the lawyer. 41
The Texas Committee on Professional Ethics (Committee) has
issued an opinion addressing how the state’s versions of these rules
relate to accessing social media. 42 In the opinion, the Committee
concluded that “the failure by attorneys and those acting as their
agents to reveal their identities when engaging in online
investigations, even for the limited purpose of obtaining identifying
[information] . . . can constitute misrepresentation, dishonesty, deceit,
or the omission of a material fact.” 43 In reaching this conclusion, the
Committee noted that “the fact that deception is even easier in the
virtual world than in person makes this an issue of heightened
concern.” 44
The Committee also surveyed guidance issued in other jurisdictions
(as of March 2018) addressing how an attorney may contact persons
via social media as part of an investigation. The Committee opinion
noted that other ethics committees had opined that a lawyer shall not
“friend” an unrepresented individual using “deception” or false
pretenses. This would include creating a Facebook profile using
inaccurate information. 45 In its opinion, the Committee recognized
that (1) certain jurisdictions require a lawyer to provide more
information, and a failure to do so constitutes deception by omission;
and (2) at least one jurisdiction requires a lawyer making a “friend”
request to identify him or herself as a lawyer, identify the lawyer’s
40 The ability of an investigator to use deception as part of a criminal

investigation is outside the scope of this article.
41 See MODEL RULES OF PRO. CONDUCT r. 5.3 (Responsibility Regarding
Nonlawyer Assistance).
42 See Texas Pro. Ethics Comm., Op. 671 (2018). The Texas Committee on
Professional Ethics is a committee of members of the State Bar of Texas

appointed by the Supreme Court of Texas to issue ethics opinions in response
to ethics-related questions. See Professional Ethics Committee, STATE BAR OF
TEX., https://www.texasbar.com/AM/Template.cfm?Section=pec&Template=/
pec/home.cfm (last visited Jan. 4, 2022).
43 Texas Pro. Ethics Comm., Op. 671, at 3.
44 Id. at 2 (citing New York City Bar opinion).
45 Id. at 2. Creating a profile with misleading information or using the social
media platform for reasons other than those intended by the platform may
violate the platform’s terms of service or terms of use.

client, and inform the witness of the lawyer’s involvement in the
case. 46
Based on the foregoing, the consensus view is that an attorney is
permitted to communicate with an unrepresented party via social
media. In so doing, the attorney must provide the witness with all the
information required by the applicable jurisdiction, such as accurately
identifying herself, informing the witness of the matter under
investigation, and describing the attorney’s involvement. Before doing
so, however, the attorney should consider having a nonlawyer, such as
a paralegal or investigator, make contact via social media to avoid
becoming a witness, which could lead to the lawyer’s
disqualification. 47 Any communications with a social media user
should be preserved and tracked for preservation purposes and to
demonstrate that the applicable rules of professional conduct were
followed. Communications in the Gaslamp matter were consistent
with these principles.
B. Preservation of social media evidence
At every stage of the process leading up to the filing of a lawsuit, it
is important to consider and to discuss with litigation support
professionals how to capture and preserve the relevant social media
evidence relied on. In addition to the professional responsibility
considerations discussed above, one of the reasons for preserving
social media evidence during the pre-suit stages of a case is the
obligation to preserve Electronically Stored Information (ESI). Federal
Rule of Civil Procedure 37(e) authorizes district courts to take
remedial actions if ESI that should have been preserved in
46 Id. (citing N.H. Bar Ass’ n Ethics Committee Advisory Comm. Opinion
2012-13/ 05); see also NEW YORK STATE BAR ASS’N, SOCIAL MEDIA ETHICS
GUIDELINES 20–22 (2019); see, e.g., Rosenay v. Taback, No.
AANCV156019447S, 2020 WL 4341767, at *7 (Conn. Super. Ct. July 2, 2020)
(unpublished) (holding that an attorney violates the Connecticut Rules of
Professional Conduct “if he or she sends a ‘friend’ request to an
unrepresented witness without: (1) disclosing to the witness that the sender
is an attorney; (2) describing his or her role in the case by identifying the
party or parties he or she represents in a particular matter; and (3) stating
the purpose of the of the request.”).
47 See MODEL RULES OF PRO. CONDUCT r. 3.7 (a lawyer shall not act as an
advocate at trial if the lawyer is a necessary witness, except for certain

limited exceptions).

anticipation of litigation is lost because a party failed to take
“reasonable steps” to preserve it and the ESI cannot be restored or
replaced through additional discovery. 48 The Sedona Primer on Social
Media (Sedona Primer) provides a useful resource on this topic. 49 In
addition to discussing Rule 37 obligations, the Sedona Primer
addresses important considerations when preserving and collecting
social media, considering its dynamic nature. 50
C. Authentication 51
As Gaslamp illustrates, before a complaint is filed, there may be
information on social media that is useful for purposes of furthering
the investigation. For example, pictures posted on public social media
platforms could be helpful at the investigative stage of a case and can
be captured and saved in a way that will facilitate their use as
evidence later. If the information is not saved early in the
investigation, it may be lost if the associated post is later removed or
deleted from the social media platform in question. In addition to
authentication, having social media posts admitted into evidence
involves issues related to hearsay and chain of custody, among others.
Because posts on social media sites are typically not
self-authenticating, an attorney must consider the traditional
authentication rules. 52 To authenticate evidence under Federal Rule
48 FED. R. CIV. P. 37 (e)(1)–(2).

49 Sedona Primer on Social Media, supra note 2.
50 Id. at 39–51, 88–90 (discussing, inter alia, considerations for preserving
and collecting social media, including when the obligation to preserve such
information arises and the “reasonable steps” standard under FED. R. CIV. P.
37(e)).
51 This section is intended to provide a summary discussion of social media
evidence and authentication issues. For a comprehensive guide to and

discussion of authentication and admissibility considerations for all forms of
ESI (including social media), see generally, PAUL W. GRIMM & KEVIN BRADY,
ADMISSIBILITY OF ELECTRONIC EVIDENCE (2018); Sedona Commentary on ESI
Evidence & Admissibility, supra note 3; Authentication of Social Media
Records and Communications, 40 A.L.R 7th, Art. 1 (2019).
52 See PAUL. W. GRIMM, ET AL., BEST PRACTICES FOR AUTHENTICATING DIGITAL
EVIDENCE 16 (2016); see also United States v. Farrad, 895 F.3d 859, 877–80
(6th Cir. 2018) (rejecting argument that Facebook photos are
self-authenticating business records under Rule 902 and holding that courts
should analyze authenticity of Facebook photos under traditional 901
standards because, inter alia, social media companies, including Facebook,

of Evidence 901, “the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” 53
Evidence may be authenticated by either direct or circumstantial
evidence, and a prima facie case is all that is necessary. 54
Rule 901(b)(1)–(10) provides a non-exhaustive list of ways in which a
piece of evidence can be authenticated, including through testimony. 55
These authentication rules apply to social media evidence. 56
Rule 902 provides examples of self-authenticating evidence that
require “no extrinsic evidence of authenticity in order to be
admitted.” 57 Examples of self-authenticating evidence include certified
copies of public records, official publications, and newspapers and
periodicals. 58 In addition, websites, including social media websites,
may be authenticated under Rule 901(11) and (12), if certified as a
business-record hearsay exception under Rule 803(6) “by the
custodian or other qualifying [person].” 59
have neither oversight nor interest in ensuring photos posted on their pages
are trustworthy). But see United States v. Recio, 884 F.3d 230, 237–38 (4th
Cir. 2018) (accepting Facebook certification from records custodian in
addition to other extensive evidence that tied defendant’s alleged Facebook
account, including name, email address tied to account, to defendants’
appearance in over 100 photos).
53 FED. R. EVID. 901(a).
54 Sedona Commentary on ESI Evidence & Admissibility, supra note 3, at
123, 123 n. 86; see also Hon. Paul W. Grimm, et al., Authentication of Social
Media Evidence, 36 AM. J. TRIAL ADVOC. 433, 434 (2013).
55 FED. R. EVID. 901(b)(1).
56 See Sedona Conference Commentary on ESI Evidence & Admissibility,
supra note 3, at 124–25 (describing the two divergent judicial approaches—

skeptical and accepting—to social media evidence and gradual development
of more nuanced fact-based rulings on authentication of social media
evidence). For a comprehensive listing of reported cases addressing
authentication of social media records and communications (“postings” and
“pages”), see Authentication of Social Media Records and Communications,
40 A.L.R 7th, Art. 1 (2019).
57 FED. R. EVID. 902(1)–(14).
58 FED. R. EVID. 902(4)–(6).

59 See GRIMM ET AL., BEST PRACTICES, supra note 52, at 17. For a helpful
discussion of Rule 902 and the 2017 amendments to the rule, see Paul W.
Grimm, New Evidence Rules and Artificial Intelligence, 45 No. 1 LITIG. 6
(2018).

The type of evidence necessary to authenticate social media
information depends on the purposes for which the evidence will be
used. In general, if the social media evidence is offered to show that a
particular person made the statement contained therein,
authentication must include evidence that the social media content
was in fact written by, or is otherwise attributable to, that person. 60
For example, in United States v. Barnes, 61 the government, using
Rule 901(b)(1), authenticated Facebook messages sent by the
defendant through another witness. The witness testified that she had
seen the defendant use Facebook, that she recognized his Facebook
account, and that the Facebook messages matched the criminal
defendant’s manner of communicating. 62 Thus, the Barnes court held
that, even though the witness could not conclusively say that the
defendant authored the Facebook messages, they were properly
authenticated and admitted by the district court. 63
In contrast to the scenario in Barnes, if the evidentiary value of the
social media information does not depend on showing (1) the truth of
its contents, or (2) that a particular person wrote it, authentication
under Rule 901 includes whatever facts are needed to show that the
evidence is what is proponent claims it is. 64 This may include photos
posted to social media sites, as in United States v. Thomas. 65 In
Thomas, the Sixth Circuit upheld the district court’s admission of
photographs downloaded by law enforcement officers from defendant’s
Facebook and Instagram pages using a version of the name “Jabron
Thomas,” which was the defendant’s name. 66 The defendant asserted
there was no evidence of who created the Facebook group or whether
it was authentic without laying a proper foundation. 67 The Sixth
Circuit held there was “no reason to depart from the ordinary rule
that photographs, including social-media photographs, are
authenticated by ‘evidence sufficient to support a finding that the
60 GRIMM ET AL., Best Practices, supra note 52, at 19; see also Authentication
of Social Media Records and Communications, 40 A.L.R. 7th, Art. 1 (2019).
61 803 F.3d 209, 217 (5th Cir. 2015).
62 United States v. Barnes, 803 F.3d 209, 217 (5th Cir. 2015).
63 Id.
64 GRIMM ET AL., BEST PRACTICES, supra note 52, at 19–20.
65 701 F. App’x 414 (6th Cir. 2017) (not precedential).
66 Thomas, 701 F. App’x at 418–19.

67 Id. at 418.

[photograph] is what the proponent claims it is,’ Fed. R. Evid.
901(a).” 68
Consistent with Judge Grimm’s checklist for authentication, 69 the
time to consider how to authenticate social media evidence is as soon
as possible, including when the information is collected, as well as
during discovery, when there is sufficient time to (1) ask witnesses
during depositions questions that will establish the methods of
authentication identified in Rules 901(b)(1) and 902; (2) research the
relevant caselaw, including any opinions issued by the judge or court
presiding over the case; (3) explore the possibility of authenticity
stipulations; and (4) strategize carefully about the best method to
authenticate each exhibit. 70
V. Conclusion
Because social media has changed how the world communicates,
civil litigators must also change by developing the skills necessary to
understand social media evidence and how it can be used to develop a
case. Gaslamp serves as an example of why attorneys must have the
ability to search, identify, capture, and utilize social media evidence to
successfully prosecute civil actions. The Gaslamp social media posts
discussed in this article publicized brazen discriminatory actions that
resulted in an investigation and led to a lawsuit to enforce Title II. In
the absence of social media evidence, the discriminatory acts may
have never come to light, or the pervasiveness of the unlawful conduct
may not have been fully realized. Using social media information,
however, the Department was able to gather an overwhelming
amount of evidence and, ultimately, halt Gaslamp’s discriminatory
actions.
68 Id. at 419 (alteration and citation in original).

69 Grimm et al., Authentication of Social Media Evidence, supra note 54, at
466–74.
70 As Gaslamp illustrates, where social media posts involve third parties,
these authentication and related ESI considerations are likely to arise in

litigation. See generally supra note 51; GRIMM ET AL., BEST PRACTICES, supra
note 51; Sedona Commentary on ESI Evidence & Admissibility, supra note 3;
Sedona Primer on Social Media, supra note 2.

About the Authors
Elise Sandra Shore is a Senior Trial Attorney in the Department’s
Civil Rights Division, Housing and Civil Enforcement Section. She
investigates, litigates, and tries cases under Title II of the Civil Rights
Act of 1964, the Fair Housing Act, and the Equal Credit and
Opportunity Act. Elise has also worked as a Trial Attorney in the Civil
Rights Division’s Voting Section. She served as co-chair of the
Division’s National Origin Working Group, Outreach and
Enforcement Committee. Before joining the Civil Rights Division,
Elise was a Fulbright Scholar and Professor of Law in Central and
South America, where she lectured and presented seminars on the
U.S. legal system. She clerked for the Honorable Jaime Pieras, Jr. in
the U.S. District Court for the District of Puerto Rico. She first joined
the Department’s Civil Division, Federal Programs Branch, through
the Attorney General’s Honors Program.
Jimmy Anthony Rodriguez is a Senior Litigation Counsel in the
Civil Division of the U.S. Attorney's Office for the Southern District of
Texas, where he handles a variety of cases, including affirmative civil
rights matters. Before joining the U.S. Attorney's Office, Mr.
Rodriguez served as a trial attorney in the Department's Environment
and Natural Resources Division, where he received the Attorney
General’s Award for Distinguished Service. He joined the Department
in 2003 through the Attorney General's Honors Program. Before that,
he clerked for the Honorable Harry Lee Hudspeth in the U.S. District
Court for the Western District of Texas.


Civil Rights in the Digital Age:
The Intersection of Artificial
Intelligence, Employment
Decisions, and Protecting Civil
Rights
Natasha Babazadeh
Trial Attorney
Civil Rights Division, Appellate Section
Angela Washington
Legislative and Policy Analyst
Civil Rights Division, Policy and Strategy Section
Tiffany Brown
Legislative and Policy Analyst
Civil Rights Division, Policy and Strategy Section
I. Introduction
Artificial intelligence (AI) leverages computers and machines to
imitate the problem-solving and decision-making capabilities of a
“rational human.” 1 AI consists of a group of algorithms—a set of
instructions to solve a problem—that it can modify based on learned
inputs and data. 2 And it is increasingly being used in our everyday
lives, including screening job applicants, deciding who can get a
mortgage, filling rental tenancies, determining credit scores, and
more. AI capabilities have also led to significant innovations,
including autonomous vehicles, connected “Internet of Things” devices
1 See JOHN S. MCCAIN NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL

YEAR 2019, PUB L. NO. 115-232, 132 STAT. 1636, 1697 (defining AI as “[a]ny
artificial system that performs tasks under varying and unpredictable
circumstances without significant human oversight, or that can learn from
experience and improve performance when exposed to data sets”).
2 Kaya Ismail, AI vs. Algorithms: What’s the Difference?, CMS WIRE (Oct. 26,
2018), https://www.cmswire.com/information-management/ai-vs-algorithms-
whats-the-difference/#:~:text=According%20to%20Mousavi%2C%20we%20
should%20think%20of%20the,uses%20training%20data%20to%20make%20
such%20a%20decision.

in the home, and even robotic body parts to assist persons with
disabilities with everyday functioning. 3
The United States is at the forefront of using AI to “drive growth of
the United States economy, enhance our economic and national
security, and improve our quality of life.” 4 And “[m]aintaining
American leadership in AI requires a concerted effort to promote
advancements in technology and innovation, while protecting . . . civil
liberties.” 5 At the 2021 G7 Summit, the United States and other world
leaders acknowledged bias in AI systems, noting that “new forms of
decision-making have surfaced examples where algorithms have
entrenched or amplified historic biases, or even created new forms of
bias or unfairness.” 6 They promised “to take bold action to build more
transparency in our technologies.” 7
Without safeguards, the increasing use of AI raises serious concerns
for vulnerable populations and the protection of civil rights. AI
prioritizes the programmer’s preferences, and civil rights laws
prioritize equal opportunity for all. So, if a programmer inputs biased
data into an algorithm, the algorithm’s output is biased. Take, for
example, companies like Apple, Twitter, or Slack using facial
recognition technology—a type of AI. Studies have shown that certain
facial recognition technology could not identify Black persons because
data inputted into the algorithm consisted almost entirely of persons
with light skin color—the engineers and developers of the technology
who only tested it on themselves. 8 As a result, algorithmic decision-
making can disproportionately affect people of color and their ability
to participate equally in employment and society generally.
This article aims to alert readers, particularly government
employees, of a new legal landscape: equal employment opportunities
3 Artificial Intelligence, NAT’L INST. STANDARDS TECH.,

https://www.nist.gov/artificial-intelligence (last visited Nov. 15, 2021).
4, Exec. Order No. 13,859, 84 Fed. Reg. 3,967 (Feb. 14, 2019) (Maintaining
American Leadership in Artificial Intelligence).

5 Id.
6 Press Release, The White House Briefing Room, Carbis Bay G7 Summit
Communiqué (June 13, 2021).

7 Id.
8 Shane Ferro, Here’s Why Facial Recognition Tech Can’t Figure Out Black
People, HUFFPOST (Mar. 2, 2016), https://www.huffpost.com/entry/heres-why-

facial-recognition-tech-cant-figure-out-black-
people_n_56d5c2b1e4b0bf0dab3371eb.

in the digital age. While many other contexts, including criminal, are
also seeing civil rights issues arise from AI use, the employment
context has been studied extensively and is ripe with concrete
examples to demonstrate the potential for abuse and discrimination.
This article provides an overview of the predominant issues arising
from employment practices and discusses the work the U.S.
Department of Justice (Department) and other federal agencies are
doing to address those issues in that context. In addition to potentially
weighing in on these types of issues, government employees are likely
to see AI use in employment cases and should be mindful of the civil
rights implications arising therefrom.
II. Employment
Employment decisions in hiring and management are critical to
economic opportunity and growth. They determine who can access
consistent work, who gets paid what, and who performs well and gets
promoted. Employers have long used technology to manage these
decisions, most recently turning to AI and predictive analytics—
software programs based on data models that predict the future. 9
Automation in hiring and employee management has also increased
significantly in response to the COVID-19 pandemic and the
transition to remote work, which has moved businesses away from in-
person interactions and toward more virtual systems where AI use is
accessible. 10 Even before COVID-19, the number of employees working
from home increased by 173% from 2005 to 2012, and by 2016, almost
half of employees reported working remotely with some frequency. 11
During the pandemic, more than 60% of U.S. employees reported
working primarily from home. 12 While these numbers will likely
decrease after the pandemic, employers are transitioning to more
permanent, flexible work options. 13 In other words, in the employment
9 Ashley DiFranza, Predictive Analytics: What It Is & Why It’s Important, NE.
UNIV. (Feb. 17, 2021),
https://www.northeastern.edu/graduate/blog/predictive-analytics/.
10 Gary D. Friedman & Thomas McCarthy, Employment Law Red Flags in
the Use of Artificial Intelligence in Hiring, AM. BAR ASS’N (Oct. 1, 2020),
https://www.americanbar.org/groups/business_law/publications/blt/2020/10/ai
-in-hiring/.
11 Id.
12 Id.
13 Id.

context, a more virtual world allowing for greater use of AI technology
is here to stay.
Without transparency and adequate safeguards, this new world can
come at a cost to our civil rights. Although AI can promote fairness
and equality by reducing human biases in the hiring and management
processes, when employers improperly use AI, they can violate state
and federal antidiscrimination laws. 14 This section explores generally
how AI affects civil rights throughout the hiring and employee
management process.
A. Overview of the legal issues
Using AI in the employment context raises legal issues resulting
from possible bias in many situations, including: (1) sourcing and
screening applicants; (2) personality and skills-based testing; and
(3) compensation, performance evaluations, and employer wellness
programs. Each of these categories is discussed below.
1. Sourcing and screening applicants
Employers are starting to use AI to solicit job candidates and screen
job applicants. For example, employers can use predictive analytics to
target advertisements, job postings, and individual outreach and
determine who learns about which jobs and to shape the applicant
pool. Employers can also use AI to screen applicants, using various
merit-based criteria—educational background, geographic location,
years of experience, credit, criminal or medical history, etc.—to
determine which applicants they should consider. These tools can
expedite the hiring process, but who the employer is targeting and
which merit-based criteria it uses to weed out candidates can lead to
discriminatory impact, benefiting one class of people over another. 15
As critics of AI in hiring note, AI is only as good as the programmers
writing the algorithm and the data they rely on. If a programmer
inputs only resumes of people who the company has previously hired,
and the previous hiring team harbored biases and preferences, the
newly created algorithm inherits those biases and preferences in
14 See generally EXEC. OFF. OF THE PRESIDENT, BIG DATA: A REPORT ON

ALGORITHMIC SYSTEMS, OPPORTUNITY, AND CIVIL RIGHTS 14 (2016).
15 See Matthew Scherer, AI In HR: Civil Rights Implications of Employers’
Use of Artificial Intelligence and Big Data, 13 SCITECH LAW. 13–14 (2017)
(noting that companies’ increasing reliance on artificial intelligence systems
and big data will solve the reduction of human resource departments).

screening applicants. 16 For example, Amazon has used AI to identify
words and phrases that commonly appeared on prior candidates’
resumes over a 10-year period. 17 But past candidates were
overwhelmingly male, so the algorithm placed considerable
significance on language used in male resumes, including “executed”
and “captured,” and less significance on terms used in female
resumes, like ‘“women’s,’ as in ‘women’s chess club captain.’” 18 The
system disfavored, among others, candidates who graduated from two
all-women’s colleges as a result. 19
Employers’ use of HireVue—a prominent video interview and
assessment vendor—is another cautionary tale of AI in hiring
unintentionally going wrong. The tech company started in 2004 as a
video interview platform, allowing candidates to record and upload
answers to questions for recruiters to review and compare. 20 HireVue
later integrated AI into its platform, using facial and voice recognition
software to analyze body language, tone, and other qualities to
determine whether candidates exhibit preferred traits. 21 The reliance
on AI resulted in significant backlash. In one report, experts
emphasized that “[HireVue’s] method massively discriminates against
many people with disabilities that significantly affect facial expression
and voice: disabilities such as deafness, blindness, speech disorders,
and surviving a stroke.” 22 And in a complaint to the Federal Trade
Commission (FTC), privacy watchdog Electronic Privacy Information
Center (EPIC) argued HireVue’s AI-driven assessments produce
results that are “biased, unprovable and not replicable.” 23 EPIC
16 Friedman & McCarthy, supra note 10.

17 Jeffrey Dastin, Amazon Scraps Secret AI Recruiting Tool That Showed
Bias against women, REUTERS (Oct. 10, 2018),
https://www.reuters.com/article/us-amazon-com-jobs-automation-insight-
idUSKCN1MK08G.
18 Id.
19 Id.
20 See HireVue, FORBES, https://www.forbes.com/companies/hirevue/
companies/hirevue/?sh=3b5be1017adf (last visited Jan. 3, 2022).

21 MEREDITH WHITTAKER ET AL., DISABILITY, BIAS, AND AI, (2019).
22 JIM FRUCHTERMAN & JOAN MELLEA, EXPANDING EMPLOYMENT SUCCESS FOR
PEOPLE WITH DISABILITIES 3 (2018); see also Whittaker et al., supra note 21.
23 Drew Harwell, Rights Group Files Federal Complaint Against AI-Hiring
Firm HireVue, Citing ‘Unfair and Deceptive’ Practices, WASH. POST (Nov. 6,
2019), https://www.washingtonpost.com/technology/2019/11/06/prominent-

argued that the technology could unfairly score individuals based on
prejudices or neurological differences. 24 While HireVue ultimately
removed facial analysis from its screening assessments in January
2021, 25 it continues to use algorithms related to audio analysis that
raise similar concerns. 26
2. Personality and skills-based testing
In considering a job applicant, employers sometimes require
additional personality and skills-based testing. These behavioral tests
analyze personalities, skills, or qualifications to determine an
applicant’s aptitude or creativity. 27 Employers are starting to utilize
AI to conduct these types of behavior tests. These AI systems
sometimes utilize data from applicants’ social media and public
profiles to predict organizational fit and success at a company. 28 For
example, one study found that a person’s “likes” on Facebook could
predict intelligence or personality traits. 29 Employers can also have
applicants play neuroscience computer games that analyze and
predict a candidate’s cognitive and personality traits. 30
rights-group-files-federal-complaint-against-ai-hiring-firm-hirevue-citing-
unfair-deceptive-practices/; see also Elec. Priv. Info. Ctr., Complaint and
Request for Investigation, Injunction, and Other Relief, In the Matter of
HireVue, Inc. (2019), https://epic.org/privacy/ftc/hirevue/EPIC_FTC_Hire
Vue_Complaint.pdf.
24 Harwell, supra note 23.
25 Will Knight, Job Screening Service Halts Facial Analysis of Applicants,
WIRED (Jan. 12, 2021), https://www.wired.com/story/job-screening-service-

halts-facial-analysis-applicants/.
26 Lindsey Zuloaga, Industry Leadership: New Audit Results and Decision on
Visual Analysis, HIREVUE (Jan. 11, 2021), https://www.hirevue.com/blog/

hiring/industry-leadership-new-audit-results-and-decision-on-visual-analysis.
27 The Future of Work: Protecting Workers’ Civil Rights in the Digital Age:
Hearing Before the Subcomm. on Civil Rights and Human Servs. of the H.
Comm. on Educ. & Labor, 115th Cong. (2020) (statement of Jenny R. Yang,
Senior Fellow, Urban Institute).
28 Id.
29 See Michal Kosinski et al., Private Traits And Attributes Are Predictable
From Digital Records of Human Behavior, PROC. NAT’L ACAD. SCIS. (2013).
30 Friedman & McCarthy, supra note 10; see also Aaron Konopasky,
Pre-Employment Tests of “Fit” Under the Americans with Disabilities Act,

30:2 S. CAL. R. L. SOC. JUST. 213–18 (2021) (discussing the various forms of
personality and fit-based testing in the employment context).

In the applicant screening or deliberation stage, data from this type
of testing can eliminate from consideration people of color, persons
with disabilities, and older adult workers. 31 For example, Kronos, a
software company used to manage employees (for example, providing
attendance, payroll, and scheduling tools), created a personality test
that several companies relied on in their hiring processes, and that
resulted in each company rejecting an applicant undergoing treatment
for bipolar disorder. 32 These companies’ automatic systems sifted
through that individual’s job application and determined him unfit for
a job based on the applicant’s answers to questions regarding his
health in the Kronos personality assessment. 33 In November 2009, the
Equal Employment Opportunity Commission (EEOC) filed suit
against Kronos, arguing that the “personality test” constituted a type
of mental health examination in violation of Title I of the Americans
with Disabilities Act. 34 And the case, although it focuses solely on the
personality test and not on any one company’s automation and
analysis of the test to make hiring decisions, demonstrates the
relation between, and the implications of, AI and performance-based
testing.
Screening social media data can also discriminate against women
who do not participate in male-dominated activities. 35 Take, for
example, Gild, an online tech-hiring platform that combs through job
applicants’ “social data”—the trace people leave behind online. 36 Gild
analyzes this data and ranks candidates by “social capital”—the
31 Friedman & McCarthy, supra note 10.

32 Cathy O’Neil, How Algorithms Rule Our Working Lives, GUARDIAN (Sept. 1,
2016), https://www.theguardian.com/science/2016/sep/01/how-algorithms-
rule-our-working-lives.
33 Id.
34 Enforcement Guidance on Disability-Related Inquiries and Medical
Examinations of Employees Under the ADA, EQUAL EMP. OPPORTUNITY

COMM’N (July 27, 2000), https://www.eeoc.gov/laws/guidance/enforcement-
guidance-disability-related-inquiries-and-medical-examinations-employees
(stating that ADA limits employer’s ability to require medical examinations
pre-offer, post-offer, and during employment); see also EEOC v. Kronos Inc.
(Kronos I), 620 F.3d 287 (3d. Cir. 2010); EEOC v. Kronos Inc. (Kronos II), 694
F.3d 351 (3d Cir. 2012).
35 See CAROLINE CRIADO PEREZ, INVISIBLE WOMEN, DATA BIAS IN A WORLD
DESIGNED FOR MEN 106–08 (1999).

36 O’Neil, supra note 32.

extent a person is integral to, in this case, the tech community. 37
According to Gild’s data, frequenting a Japanese manga site—a site
that displays a style of Japanese comic books and graphic novels—is
“one solid predictor of strong coding” and can give an applicant a
higher “social capital” score. 38 But “if, like most of techdom, that
manga site is dominated by males and has a sexist tone, a good
number of the women in the industry will probably avoid it.” 39 In
other words, by failing to consider the ways women’s lives differ from
men’s, both on and offline, and by placing greater weight on one factor
that favors men over other non-biased factors, programmers can
create algorithms that contain hidden bias against women. 40
3. Compensation, work evaluations, and wellness
programs
Outside of hiring, employers are also beginning to rely on AI to
manage employee compensation and work evaluations. They use AI to
analyze data of customer ratings and feedback, as well as
conversations taken over the phone. 41 For example, some call centers
use speech recognition technology to analyze and score an employee’s
performance and sentiment during a call. 42 Employers then factor
37 Id.
38 Alexis C. Madrigal, Your Job, Their Data: The Most Important Untold
Story About the Future, ATL. (Nov. 21, 2013), https://www.theatlantic.com/
technology/archive/2013/11/your-job-their-data-the-most-important-untold-
story-about-the-future/281733/.
39 O’Neil, supra note 32.
40 PEREZ, supra note 35, at 107–08.

41 See Robin Gareiss, Businesses Can Achieve 360-Degree Customer View
Using AI, TECHTARGET (Sept. 19, 2019),

https://searchcustomerexperience.techtarget.com/tip/Businesses-can-achieve-
360-degree-customer-view-using-AI; Chiradeep BasuMallick, How AI-Driven
Performance Feedback Can Make You A Better Manager, HR TECHNOLOGIST
(Oct. 22, 2019), https://www.hrtechnologist.com/articles/performance-
management-hcm/ai-driven-performance-feedback/.
42 See Paul Jackson, Conversation Intelligence Software: The Power of AI for
Call Centers, VELVETECH (Sept. 15, 2021),

https://www.velvetech.com/blog/conversation-intelligence-for-call-centers/; see
also Roland Háry, Leveraging Speech Recognition Technology in a Call
Center, VCC LIVE (Feb. 1, 2019), https://vcc.live/blog/leveraging-speech-
recognition-technology/.

that analysis into performance reviews and bonus structures. 43 But,
again, without more, if one feeds an algorithm biased data, the results
are also biased. For example, because of the performance analysis and
score from the speech recognition technology, employees of color are
paid less than white employees despite having the same job,
experience, and skill levels, then just inputting that data into an AI-
based pay system could perpetuate that same inequity. 44
Some employers also offer wellness programs to assess employees’
health conditions. They can use AI to analyze data gathered from
health-focused assessments, questionnaires, and other forms of health
testing. 45 The employers can then use that analysis to make
inferences about an individual’s health, which in turn inform
personnel decisions. 46 Although a number of laws govern the
protection of health data—the Health Insurance Portability and
Accountability Act (HIPAA), the Americans with Disabilities Act
(ADA), the Affordable Care Act (ACA), etc.—no law explicitly
prohibits employers from using machine learning technology that
analyzes and makes decisions based off of nongenetic information. 47
This leaves a significant gap in disability rights and health privacy
laws generally, leaving room for civil rights abuses; for example,
43 See supra note 42; see also Joanne Sammer, Bringing Artificial Intelligence
into Pay Decisions, SHRM (Dec. 10, 2019), https://www.shrm.org/resources
andtools/hr-topics/compensation/pages/bringing-artificial-intelligence-into-
pay-decisions.aspx.
44 See Nicol Turner Lee et al., Algorithmic Bias Detection And Mitigation:
Best Practice Policies to Reduce Consumer Harms, BROOKINGS (May 22,

2019), https://www.brookings.edu/ research/algorithmic-bias-detection-and-
mitigation-best-practices-and-policies-to-reduce-consumer-harms/ (“Bias in
algorithms can emanate from unrepresentative or incomplete training data
or the reliance on flawed information that reflects historical inequalities. If
left unchecked, biased algorithms can lead to decisions which can have a
collective, disparate impact on certain groups of people even without the
programmer’s intention to discriminate.”).
45 See generally Laner Muchin, Recent Class Action Lawsuit Involving Yale
University’s Wellness Program is A Cautionary Tale for Employers,

JDSUPRA (Aug. 19, 2019), https://www.jdsupra.com/legalnews/recent-class-
action-lawsuit-involving-11276/ (discussing anticipated legal challenges to
employer wellness programs in light of the lawsuit).
46 Id.
47 Eric Horvitz & Deidre Mulligan, Data, Privacy, and the Greater Good, SCI.
MAG., July 17, 2015, at 253–55.

making harmful employment decisions based on personal health data,
similar to the situation arising from Kronos’s personality test,
explained above. 48
B. Government work: the Department and the EEOC
The Department’s Civil Rights Division recognizes that using AI can
violate civil rights laws, and the Division’s Employment Litigation
Section, Disability Rights Section, and Immigrant and Employee
Rights Section are interested in hearing from individuals who believe
that an employer’s use of AI has discriminated against them on the
basis of race, national origin, citizenship status, religion, age, or
disability.
The EEOC also has had occasion to address some of the AI issues
arising in the employment context. In 2016, the EEOC held a public
meeting to hear from experts on the use of AI in employment decisions
and determined that employers using AI in their hiring practices
could lead to unintended discrimination and potential liability. 49 On
December 8, 2020, 10 U.S. Senators sent a joint letter to the EEOC
Chair, urging the Commission “to investigate and/or enforce against
discrimination related to the use of” AI in hiring. 50 And in February
2021, the EEOC Chair highlighted her commitment to “strategic”
efforts in her first public speech, 51 which includes using AI to sort
through applications; personality tests; and using terms such as
“young,” “energetic,” “recent graduate,” “men only,” or “women only”
in job searches. 52
48 See O’Neil, supra note 32.

49 See Press Release, Equal Emp. Opportunity Comm’n, Use of Big Data Has
Implications for Equal Employment Opportunity, Panel Tells EEOC (Oct. 13,
2016).
50 Press Release, Michael Bennet U.S. Senator for Colorado, Bennet,
Colleagues Call on EEOC to Clarify Authority to Investigate Bias in AI-

Driven Hiring Technologies (Dec. 8, 2020).
51 See Paige Smith, New EEOC Chair Vows Greater Push Against Systemic
Discrimination, BLOOMBERG L. (Feb. 18, 2021),

https://news.bloomberglaw.com/daily-labor-report/new-eeoc-chair-vows-
greater-push-against-systemic-discrimination.
52 While the EEOC has not yet announced its strategic enforcement plan for
the next four years, it has updated its website to highlight new areas that the
EEOC considers ripe for “strategic” actions. See Systemic Enforcement at the

Government attorneys should be on the lookout for employment
issues arising from AI use. They can also seek guidance from, or refer
matters to, the Department and the EEOC when faced with these
issues. Attorneys should be mindful that, as with any hiring and
employee management process, AI systems could potentially implicate
Title VII of the Civil Rights Act of 1964, the ADA, the Age
Discrimination in Employment Act (ADEA), and the Immigration and
Nationality Act (INA). All of those laws prohibit intentional
discrimination, unintentional discrimination, or both. Courts have
upheld claims of intentional discrimination based on allegations of
unconscious or implicit bias. 53 And as explained, AI systems can
manifest unconscious bias based on the biases of the programmer and
data input. Alternatively, employers could face liability for
unintentional discrimination if using AI adversely impacts members
of a protected class; for example, Amazon’s resume screening tool
discriminating against women or HireVue’s voice and facial
recognition software disfavoring persons based on disabilities. 54 Or,
for ADA cases, employers can be held liable for screening out
applicants with disabilities based on selection criteria or qualification
standards; 55 for example, companies relying on Kronos’s personality
testing to reject an applicant with a disability.
EEOC, EQUAL EMP. OPPORTUNITY COMM’N, https://www.eeoc.gov/systemic-

enforcement-eeoc.
53 See e.g., Village of Arlington Heights v. Metro. Housing Dev. Corp., 429
U.S. 252, 265–66 (1977); see also Kimble v. Wis. Dep’t of Workforce Dev., 690
F. Supp. 2d 765, 778 (E.D. Wis. 2010) (holding plaintiff established prima
facie discrimination case by relying on evidence of employer’s implicit bias).
54 Courts might look to cases analyzing employers’ use of standardized tests
in the application and promotion process, which have established that if such
tests disparately impact protected groups of employees, the employer must
show the tests are reasonable and job-related. See Griggs v. Duke Power
Company, 401 U.S. 424 (1971); Albermarle Paper Co. v. Moody, 422 U.S. 405
(1975).
55 See Konopasky, supra note 30, at 230–49 (discussing how employers can be
held liable under the ADA by using tests of fit that screen out individuals
with disabilities).

III. Conclusion
AI offers many benefits to employee hiring and other personnel
decisions. But without adequate protections, these benefits can come
at a cost to civil rights. The legal landscape in this area is developing.
By discussing the use of AI in various employment contexts and the
civil rights issues that may follow, attorneys can begin identifying and
taking the appropriate steps to address these issues. Lawyers and
legislators are faced with the task of understanding developing
technology and how its use impacts civil rights to then discern the
governing legal framework and respond accordingly. And, as
explained, the Department and other federal agencies are actively
taking steps to participate in this process. Online or offline, we must
continue to protect civil rights by tackling new obstacles that arise in
our developing world.
About the Authors
Natasha Babazadeh is a trial attorney in the Civil Rights Division’s
Appellate Section, handling appeals for a broad range of civil rights
matters. Before joining the Division, Natasha clerked on the Sixth
Circuit Court of Appeals for the Hon. Jane B. Stranch and on the
Northern District of Illinois for the Hon. Harry D. Leinenweber.
Natasha also served as the Appellate Advocacy Fellow with EPIC. She
is a graduate of New York University and of the David J. Epstein
Program in Public Interest Law and Policy at the University of
California, Los Angeles School of Law.
Angela Washington is a legislative and policy analyst in the Civil
Rights Division’s Policy and Strategy Section. Angela previously
worked as a Paralegal Specialist in the Civil Rights Division’s
Criminal Section. Angela is a graduate of the University of Michigan
and the American University Washington College of Law.
Tiffany Brown is a legislative and policy analyst in the Civil Rights
Division’s Policy and Strategy Section. Tiffany was formerly a Policy
Analyst at the Health Resources and Services Administration (HRSA)
and a health care consultant in the private sector, focusing on
Medicare, Medicaid, and private insurance. She also spent time in the
Department’s Antitrust Division as a Paralegal Specialist. She is a
graduate of Duke University and the George Washington University
Law School.

Building a Civil Rights Practice
for Civil Enforcement in a United
States Attorney’s Office
Michael Goldberger
Chief of Civil Rights
Civil Division
Eastern District of New York
Jennifer A. Serafyn
Chief, Civil Rights Unit
District of Massachusetts
Michael J. Butler
Civil Rights Coordinator
Middle District of Pennsylvania
I. Introduction
The Department of Justice (Department) has a unique, overarching
duty to protect civil rights. As the principal civil rights enforcement
agency in the United States, the Department’s Civil Rights Division
(Division) is responsible for investigating and prosecuting a wide
range of cases touching on almost every facet of daily life—housing,
employment, rights of individuals with disabilities, law enforcement
conduct, voting rights, and education, among others. The Division,
which Congress created through the Civil Rights Act of 1957,
“enforces federal statutes prohibiting discrimination on the basis of
race, color, sex . . . disability, religion, familial status, national origin,
and citizenship status.” 1
A key component of the Department’s civil enforcement of civil
rights is the work of talented litigators in U.S. Attorneys’ Offices
(USAOs) across the country, enhanced by their knowledge of local
issues and organizations, their familiarity with the judges and legal
community in the district, and their honed litigation skills. Indeed, in
recognition of the important contributions that USAOs offer in
enforcing civil rights, on May 27, 2021, Attorney General Merrick B.
Garland encouraged every USAO to designate both a civil and
1About the Division, DEP’T OF JUST., https://www.justice.gov/crt/about-

division (updated Sept. 22, 2021).

criminal Civil Rights Coordinator, recognizing the importance of
USAOs in civil enforcement of civil rights. 2
This is, then, a great time to start or expand the civil rights practice
in your USAO. This article offers ideas and recommendations, based
on the authors’ collective experience, on how to do just that. It
includes tips on structuring and staffing a practice, working with
Division attorneys, identifying resources, and conducting outreach. It
is intended as a place to start for any USAO that wants to become
involved in civil rights work or grow its practice in this important
area.
II. Background
A. The USAOs’ role in civil enforcement of civil
rights has grown over the years
For decades, attorneys in the Division, based in Washington, D.C.,
performed almost all of the Department’s civil enforcement of civil
rights. There were, however, a few exceptions. Beginning as early as
the 1970s through the 1990s, a few USAOs, including the Southern
and Eastern Districts of New York and the Eastern District of
Michigan, established civil rights practices with one or more Assistant
U.S. Attorneys (AUSAs) assigned to spend significant time on
affirmative civil rights cases. In some cases, AUSAs partnered with
Division trial attorneys.
Beginning in the 1990s, the Division’s Disability Rights Section
partnered with dozens of USAOs to review and resolve complaints
filed under the Americans with Disabilities Act (ADA) in their
districts. Similarly, over two dozen USAOs worked with the Division’s
Housing and Civil Enforcement Section on Fair Housing Act cases
where either party to an administrative complaint filed with the U.S.
Department of Housing and Urban Development “elected” to have the
complaint resolved in federal district court (known as “HUD election
cases”). 3
2 Memorandum from Merrick Garland, Att’y Gen., Dep’t of Just. on

Improving the Dep’t’s Efforts to Combat Hate Crimes and Hate Incidents to
Dep’t of Just. Emps. 3 (May 27, 2021).
3 See The Fair Housing Act, DEP’T OF JUST., https://www.justice.gov/crt/fair-
housing-act-1 (updated June 16, 2021); See, e.g., Consent Decree, United
States v. Shawmut Mortgage Co., No. 93-cv-2453 (D. Conn. Dec. 13, 1993),
ECF No. 9.

USAO interest and involvement in civil enforcement of civil rights
has continued to steadily grow, and civil AUSAs have increasingly
been provided training and support to carry out civil rights work.
Beginning in 2009, the Division institutionalized its program to
partner with USAOs on matters arising in all the Division’s civil
litigating sections. Over the next few years, the number of USAOs
with civil rights practices boomed, and the Department funded more
than 60 USAO civil rights positions, including AUSAs, intake
specialists, and investigators to support their efforts. As of 2021, at
least half of the 93 USAOs have active civil rights practices working
cases as lead attorneys and on teams with Division trial attorneys.
B. A USAO civil rights practice, like the Division’s, is
diverse and challenging
Civil rights work within the Division and across USAOs is strikingly
broad. The Division has statutory authorization to enforce more than
25 statutes, including the Fair Housing Act, 4 the ADA, 5 Title VII of
the Civil Rights Act, 6 the Civil Rights of Institutionalized Persons
Act, 7 the Voting Rights Act, 8 Title VI of the Civil Rights Act, 9 and the
Equal Educational Opportunities Act. 10
The Division has allocated the civil enforcement of civil rights cases
among the following sections: Appellate (APP), Disability Rights
(DRS), Educational Opportunities (EOS), Employment Litigation
4 42 U.S.C. §§ 3601–3619.
5 42 U.S.C. §§ 12101–12213.
6 42 U.S.C. §§ 2000e–2000e-17.
7 42 U.S.C. §§ 1997–1997j.
8 52 U.S.C. §§ 10301–10702.
9 42 U.S.C. §§ 2000d–2000d-7.
10 20 U.S.C. §§ 1701–1758. There are many additional types of cases that the
general public considers to be “Civil Rights” cases, but for which the
Department does not have authority to bring suit. For example, although the
Attorney General is authorized to bring suit to address a pattern or practice
of violations of 42 U.S.C. § 1983 under the Violent Crime Control and Law
Enforcement Act of 1994, 34 U.S.C. § 12601, the Department does not have
authority to bring suit under 42 U.S.C. § 1983 alleging that state actors
violated a particular individual’s rights. See Conduct of Law Enforcement
Agencies, DEP’T OF JUST., https://www.justice.gov/crt/conduct-law-
enforcement-agencies (updated Apr. 21, 2021) (explaining that “[h]arm to a
single person, or isolated action, is usually not enough to show a pattern or
practice that violates these laws.”).

(ELS), Federal Coordination and Compliance (FCS), Housing and
Civil Enforcement (HCE), Immigrant and Employee Rights (IER),
Special Litigation (SPL), and Voting Rights (VOT). 11 The Division’s
Policy and Strategy Section (POL) assists USAOs and serves as a
liaison between the Executive Office of U.S. Attorneys (EOUSA),
USAOs, and the Division on cross-cutting issues. 12 USAOs work with
all these sections.
III. To start: determine the best structure

for a civil rights practice in your USAO
Starting or expanding a program for civil enforcement of civil rights
not only supports the broader Department mandate to combat civil
rights violations but can also benefit the USAO itself by increasing
public engagement, enhancing outreach, and providing remedies not
available through criminal enforcement of civil rights. Availability of
resources, however, is always a factor, and each USAO must evaluate
the most effective and efficient way to structure the program in its
particular district. A good way to start is with a strategic plan.
A. Creating a strategic plan
If you look at the established practices across USAOs, you will see
that different districts have strategically structured their civil rights
enforcement programs differently. While almost every district now
has a designated civil rights coordinator for civil enforcement, USAOs
have flexibility in creating a structure that makes sense for them. For
example, some districts have a separate unit or section with civil
AUSAs and staff dedicated exclusively to civil rights work. Others
include civil rights as part of a broader affirmative civil enforcement
practice. Some distribute civil rights casework to generalists
throughout the civil division, while others have only one AUSA, who
11 About the Division, DEP’T OF JUST., https://www.justice.gov/crt/about-

division (last updated Sept. 22, 2021).
12 These sections, a description of their work, and the statutes they enforce
can be found on the Division website. Civil Rights Division, DEP’T OF JUST.,
https://www.justice.gov/crt (last visited Jan. 13, 2022). In addition, press
releases describing successful civil rights cases brought by the Division and
USAOs are available at Civil Rights Division Press Releases & Speeches,
Dep’t of Just., https://www.justice.gov/crt/civil-rights-division-press-releases-
speeches (last visited Jan. 13, 2022).

may be the Civil Rights Coordinator or the Civil Chief, performing the
work. Some districts are exploring the creation of a civil rights unit
that encompasses both civil and criminal civil rights work. Each
USAO needs to determine which of these structures works best for
them based on the office’s size, available resources, and the emphasis
the district wishes to place on civil rights work. 13
Several districts beginning or expanding their civil rights practice
have drafted a strategic plan or proposal. These plans outline the
goals, structure, areas of focus, and an initial outreach plan for the
practice. The process of developing a strategic plan and the
discussions between key members of the USAO’s civil division and
leadership considering the proposal can build support and buy-in for
the practice. The plan can also provide benchmarks to measure
progress. Civil Rights Coordinators in both the Division and EOUSA
can provide further information and connect USAOs with districts
that have already gone through the process.
The strategic plan for structuring a new or expanded civil rights
practice should also address review and supervision of civil rights
work, whether by a supervisory AUSA overseeing a civil rights unit,
the Civil Chief, or someone else. Consideration must also be given to
coordination with the Division, whose authorization is required before
you file significant documents and or take significant actions in civil
rights cases.
Finally, the strategic plan should address the availability and
assignment of non-AUSA staff, including legal assistants, paralegals,
investigators, and outreach specialists. From community engagement,
to complaint intake, to document management, and everything in
between, robust civil rights programs are supported by a range of
dedicated and talented staff members.
B. How to structure your civil rights practice may
depend on the size of your office and available
resources
A key issue in creating or expanding a civil rights practice in a
district may be the size of the USAO, which may generate different
challenges or benefits for a civil rights practice. EOUSA categorizes
13Over the years, the Department has provided resources to USAOs to hire
dedicated Civil Rights AUSAs. If new funding for AUSAs is made available,
you may consider applying.

USAOs into four sizes: small, medium, large, and extra-large, based
on the number of allocated attorneys. Offices like the District of
Vermont and the Western District of Wisconsin are small districts; the
Northern District of Florida and the Western District of Michigan are
medium districts; the District of Oregon and the Western District of
New York are large districts; and the Eastern District of New York
and the District of Arizona are extra-large districts.
1. Small offices
Small does not mean the area the district serves is geographically
small. Indeed, the District of Vermont encompasses the entire state—
about 9,217 square miles—and has about 645,000 citizens. 14 In
contrast, the Eastern District of New York (serving Brooklyn, Staten
Island, Queens, and the “suburban counties on Long Island”) may be
smaller in square miles than the District of Vermont but has about 8
million residents. 15 Small probably does, however, mean fewer
resources. In a smaller district, there are often fewer AUSAs, and they
have multiple duties and cover larger geographic areas. Some civil
AUSAs in small offices also do criminal work. The Civil Rights
Coordinator may also be the Deputy Security Manager, the Health
Care Fraud Coordinator, and the Civil Chief. Creating a civil rights
practice in such an office will require more juggling, but the good news
is that, if an AUSA can already juggle four knives in the air, one more
probably will not hurt—one just needs to be more careful.
2. Extra-large offices
In extra-large offices, AUSAs may specialize or be on a specialized
team. The number of potential civil rights cases will probably exceed
the time that one AUSA can dedicate to the practice, so extra-large
USAOs may need a team of AUSAs to work on civil rights matters.
For example, after several years developing their civil rights practice,
the District of Massachusetts now has a stand-alone Civil Rights Unit
with four AUSAs dedicated to civil rights. 16 The Eastern District of
New York has five AUSAs on its Civil Division Civil Rights Team,
14 QuickFacts Vermont, U.S. CENSUS BUREAU (July 1, 2021),

https://www.census.gov/quickfacts/VT.
15 See Home, U.S. ATT’Y’S OFF., E. DIST. OF N.Y., https://www.justice.gov/usao-
edny (last visited Nov. 22, 2021).

16 See Outreach & Initiatives, U.S. ATT’Y’S OFF., DIST. MASS.,
https://www.justice.gov/usao-ma/civil-rights (last visited Nov. 22, 2021).

with a dedicated Civil Rights Chief, a full-time investigator, and four
AUSAs who concentrate on civil rights work while handling other
types of cases and responsibilities. 17
3. Medium and large offices
“Medium and large offices face issues similar to those of both small
and extra-large offices.” A civil division in one of these offices may
require AUSAs to perform numerous duties. Because they are
somewhat larger than small offices, medium and large offices have the
potential to develop a robust civil rights docket.
IV. Developing a civil rights practice is

unlike any other work in your USAO
Successful civil rights practitioners in USAOs are part
entrepreneur, part educator, and part litigator. Civil enforcement of
civil rights involves numerous unique factors not found in criminal
prosecution or most civil defensive or affirmative work in USAOs.
Unlike other affirmative civil practices, there are few natural
sources of casework. Although agencies like HUD’s Office of Fair
Housing and Equal Opportunity and the Equal Employment
Opportunity Commission (EEOC) do refer some matters to the
Department, USAOs often generate a large percentage of their own
civil rights cases. Thus, outreach is a key component of civil
enforcement of civil rights. USAOs develop sources of casework
through networking and outreach with the Division, other USAOs,
local and state governmental agencies, and community advocates.
USAOs also conduct outreach directly to the public through
mechanisms such as community meetings, social media, and press
releases.
Most affirmative civil rights cases also do not have the benefit of an
underlying investigation or the work of agents. Thus, AUSAs (and any
available USAO investigators, analysts, or paralegals) perform their
own investigations at the onset of a matter. Generally, a thorough
investigation must be completed before seeking authority to litigate,
17Press Release, U.S. Att’y’s Off., E. Dist. N.Y., Acting United States
Attorney Mark J. Lesko Announces Formation of Civil Rights Team in the
Office’s Civil Division (June 18, 2021); see also Civil Division, U.S. ATT’Y’S
OFF., E. DIST. N.Y., https://www.justice.gov/usao-edny/civil-division (updated
Sept. 8, 2021).

and you must try to settle a matter before filing suit. These matters
typically move much more slowly and can be much more labor
intensive than many of the civil cases that USAOs generally handle.
Results often come after years of effort.
Finally, as discussed above, the Department enforces more than 25
diverse and complex statutes, far more than in any other civil
affirmative practice. Thus, civil enforcement of civil rights requires an
unusual breadth of knowledge.
To develop an effective civil rights practice, it is critical to foster
relationships with colleagues in the Division, in your community, and
with other USAOs and state and local governmental and other federal
entities in your area. Below, we explain just some of the measures
that USAOs around the country have employed to develop strong civil
rights practices.
A. Develop a working relationship with the Division
As we noted above, the Division previously handled most civil rights
cases exclusively before the push to expand partnerships with USAOs.
Division attorneys may have been handling civil rights cases in your
district for years. As such, it still maintains authority to approve most
significant steps in civil rights cases, whether it is opening an
investigation or finalizing a settlement.
Every section of the Division has a designated point of contact (POC)
for the USAO community. A good initial step in developing your
practice is to reach out and open the lines of communication. While
Division policy now requires attorneys to notify USAOs about
significant matters in their districts, personnel changes and oversight
sometimes means that there may be ongoing cases in your district
that are not on the district’s radar. If you are lucky, you may learn of
an open case or two that you can become involved in quickly. Some
older cases may involve consent decrees or settlement agreements
that require timely compliance, and you can offer to assist with
enforcing the decree or agreement. 18
18One great way to get experience with the Division is to reach out to DRS
and work on a polling place survey in your district. You will find more
information about that in this issue of the Department of Justice Journal of
Federal Law and Practice.

1. Obtain referrals and support from the Division
The Division offers significant support for USAOs doing civil rights
work. The section POCs can provide valuable assistance helping you
to understand Division procedures and share Division resources, such
as sample documents. The POCs and the other section attorneys are
also subject matter experts and can offer insights on how to handle
tricky issues that can arise during investigations and litigation.
The Division also offers AUSA webinars and other training about
their work and current Division initiatives. Beyond just providing
information, the trainings can help identify leads for new cases.
Another benefit of working with the Division is on-the-job training.
One great example is an investigation that led to settlement between
the United States and the Pennsylvania Department of Education
(DOE) to address allegations that the DOE discriminated against
students with disabilities or who were English Language Learners. 19
Between 2014 and 2019, the Division’s EOS worked collaboratively
with the USAOs for the Middle, Eastern, and Western Districts of
Pennsylvania to achieve this far-reaching, important settlement. 20
The Division can also be a good source of case referrals. Disability
rights cases are a great way of starting a civil rights practice. DRS’s
website, Ada.gov, receives thousands of complaints annually. 21
Through the U.S. Attorneys Program for ADA Enforcement, you can
ask DRS to refer to you complaints made in your district. Further,
because it has the oldest established USAO program, DRS has four
attorneys who each cover a few judicial circuits, and they are available
to assist USAOs and coordinate approvals. You can get good advice
regarding the law, DRS’s experience with the type of case, and the
documentation needed to engage in settlement discussions or
litigation. Once your USAO takes a case, you should communicate
with DRS as it progresses.
19 Press Release, Dep’t of Just., Pennsylvania Department of Education

Agrees to Resolve Federal Civil Rights Investigation Into Alternative
Education Programs and Implement Reforms (Mar. 25, 2019).
20 Id.
21 See Information and Technical Assistance on the Americans with
Disabilities Act, DEP’T OF JUST., https://www.ada.gov/ (last visited Nov. 22,

2021).

2. Learn about the Division’s Initiatives
You also would be wise to familiarize yourself with the
Department’s initiatives. Periodically, the Division focuses its
energies nationally on particular forms of discrimination. At present,
these include combatting redlining, sexual harassment in housing,
medication-assisted opioid treatment, servicemembers and veterans,
and service animals. 22 Division attorneys typically put together a
toolkit with helpful information, such as sample documents and
information about how to open an investigation and litigate a matter.
If you are interested in one of the Division’s initiatives, contact the
USAO POC in the section overseeing the initiative. The POC can help
you get started by explaining how other USAOs have initiated cases
and offer suggestions for how to do that in your district. In some
instances, Division sections will refer a matter to the USAO to handle
as the lead, while other cases may be handled by a team that includes
both Division attorneys and AUSAs. The POC can also help you
develop materials and presentations to educate community groups,
local law enforcement, and others on these initiatives.
B. Connect with your colleagues in other USAOs
Building a civil rights practice entails not only getting to know your
colleagues within the Division, but also developing relationships with
your counterparts in USAOs across the country. Established civil
rights coordinators or civil rights unit chiefs can offer invaluable
information and samples as you develop your strategic plan and
establish your practice. It can be especially helpful to get to know your
counterparts in offices that are similar in size as well as in bordering
districts. For example, the AUSAs doing civil rights work in the New
England districts are frequently in touch to share information, bounce
ideas off each other, and conduct joint outreach. Civil rights
22 See Press Release, Dep’t of Just. Justice Department Announces New

Initative to Combat Redlining (Oct. 22, 2021); Sexual Harassment in Housing
Initiative, DEP’T OF JUST., https://www.justice.gov/crt/sexual-harassment-
housing-initiative (updated Nov. 7, 2018); Memorandum from the Att’y Gen.
on Dep’t of Just. Strategy to Combat Opioid Epidemic to Heads of Dep’t
Components (Sept. 21, 2016); Servicemembers and Veterans Initiative, DEP’T
OF JUST., https://www.justice.gov/servicemembers (last visited Nov. 19, 2021);
Frequently Asked Questions about Service Animals and the ADA, DEP’T OF
JUST. (July 20, 2015), https://www.ada.gov/regs2010/service_animalqa.html.

coordinators also should work with the national civil rights
coordinator in EOUSA and Division POCs to join the Affirmative Civil
Rights Listserve, participate in quarterly conference calls, and receive
invitations to civil rights webinars and other events.
C. Reach out to federal, state, and local
governmental entities
In developing a civil rights practice, some of your most valuable
resources lie within other governmental agencies—federal, state, and
local. Most federal agencies have an Office of Civil Rights, responsible
for enforcing certain laws at the administrative level and addressing
violations of, among other things, Title VI, which requires recipients
of federal financial assistance, including state and local governmental
entities, to comply with anti-discrimination requirements. 23 At HUD,
the Office of Fair Housing and Equal Opportunity is also responsible
for investigating and administratively addressing allegations by
individuals of housing discrimination. 24
Establishing a relationship with agency staff in your region can help
you to identify potential cases. Most of these agencies do not have
litigation authority. Accordingly, if a matter cannot be conciliated
after the agency makes a finding of discrimination, it may be referred
to the Department. In certain circumstances, even before a matter is
ripe for referral, the Division and USAOs work with agencies such as
HUD or the EEOC during the administrative investigatory process,
helping to strengthen the investigation even before it is formally
referred to the Department. The Department has a Memorandum of
Understanding with the EEOC to do just that. 25 Also, most state and
local governments have civil rights enforcement agencies. Building a
working relationship with these agencies can be fruitful—
collaborating and exchanging ideas frequently helps identify
important issues and leads to new cases or matters.
Getting to know other officials in your area who work on civil rights
issues has the added benefit of increasing communication and
23 42 U.S.C. §§ 2000d, 2000d-4a.

24 See About FHEO, DEP’T OF HOUS. AND URB. DEV., OFF. OF FAIR HOUS. &
EQUAL OPPORTUNITY, https://www.hud.gov/program_offices/fair_housing_
equal_opp/aboutfheo (last visited Nov. 23, 2021).
25 Memorandum of Understanding Among the Dep’t of Labor, the EEOC, and
the Dep’t of Just. (Nov. 3, 2020).

information sharing. In New York and New Jersey, the USAOs in the
Eastern District of New York, the Southern District of New York, and
the District of New Jersey participate in a Civil Rights Roundtable
(the Chief of Civil Rights in the EDNY Civil Division is co-Chair of the
Roundtable). This informal state, local, and federal inter-agency group
meets regularly to discuss mutual interests and hosts education and
outreach programs with community representatives and advocates
throughout the New York City and New Jersey area. AUSAs in other
parts of the country have established similar groups.
D. Explore educational programs, conferences, and
speaking engagements
One particularly valuable way to develop case work is by raising
your practice’s visibility. Such efforts can take different forms, but you
can get the word out about your practice by holding educational
programs and conferences and by accepting public speaking
engagements. Although arranging such programs can be time
consuming, they help to highlight your office’s work and outreach.
Other administrative staff can help with logistics, and the Division
POCs and civil rights coordinators in other districts can provide model
invitations, presentations, and agendas.
E. Conduct outreach to community groups,
advocates, and attorneys
Doing civil rights work in a USAO is like working at a big law firm
in one key aspect—you eat what you kill. In other words, you and your
colleagues who handle civil rights matters are primarily responsible
for bringing in cases.
As you build your office’s civil rights practice, it is important to
reach out to others in your district who may be involved in civil rights
work. This includes civil rights organizations, human rights
commissions, law enforcement, other federal and state agencies,
community groups, and even law school clinics.
Keep in mind that other parts of your office also conduct outreach.
Consult frequently with your office’s outreach coordinator and law
enforcement coordinator. Leverage their connections and
relationships, and where possible, combine forces. For example, your
office’s outreach coordinator or law enforcement coordinator may be
attending a meeting of the major city police chiefs in your district and
may be able to get a spot on the agenda to talk about civil rights

issues. Optimally, the civil rights coordinator, law enforcement
coordinator, and outreach coordinator work together to enhance all
the program’s objectives and benefit the office as a whole.
F. Let the public know about your civil rights
practice
The goal of outreach is to spread the word about your USAO’s civil
rights practice so that the public knows where to bring their civil
rights complaints. Your office website can highlight your civil rights
practice, link visitors to additional sources of information, and tell
them how to submit a civil rights complaint. Some USAOs use a
dedicated civil rights email address, telephone line, or both. You can
include a link to the Division’s complaint portal, 26 and can also
advertise significant developments in your civil rights practice, such
as the establishment or expansion of the program, a new initiative, or
case accomplishments, in press releases and social media postings.
It is helpful to have district-specific materials to pass out at
conferences, roundtables, and other events that explain the USAO’s
enforcement authority priorities. Include contact information. In
particular, brochures can be an effective way to highlight your civil
rights practice. For example, the District of Massachusetts has a
brochure for its Civil Rights Unit that provides an overview of key
civil rights statutes with examples of specific matters that the USAO
brought and resolved. The District also has issue-specific brochures on
housing, employment, the ADA, and servicemembers’ and veterans’
rights. The brochure focused on servicemembers’ and veterans is
provided to attendees at the office’s annual Veterans Day
commemoration.
If you decide to create brochures, flyers, or other printed materials,
be sure to coordinate with the Division and your colleagues in other
districts who may have samples. Also be sure to have the printed
materials translated into the other languages spoken in your district,
as well as in large print.
26See Contact Us, How to report a civil rights violation, DEP’T OF JUST., CIVIL
RTS. DIV., https://www.civilrights.justice.gov/#report-a-violation (last visited
Nov. 23, 2021).

G. Read and watch local news
Once you become familiar with the civil rights statutes the
Department enforces, you can look for potential civil rights matters
yourself. One of the simplest and most valuable ways to identify new
projects or cases is to make sure you are plugged into local news,
including newspapers, radio, television, and online content. The
authors have found some of their best cases by reading the daily
newspapers and contacting attorneys or advocates interviewed in the
articles. Many of the issues of the day that the press loves to cover,
whether it is institutional abuse of prisoners, individuals with serious
mental illness, police misconduct, or voting, can quickly translate into
USAO investigations. Your local knowledge and contacts, as well as
your awareness of the issues that affect the residents of your district,
are invaluable assets for identifying and bringing successful civil
rights cases.
V. Conclusion
In the past, the role of USAOs in civil rights enforcement was
limited by policy and available resources. Today, USAOs are
recognized as important force multipliers in the fight against
discrimination and civil rights violations. We encourage every USAO
to join the fight, and we hope this article offers a helpful roadmap to
developing an effective civil rights practice for civil enforcement.

About the Authors
Michael Goldberger is Chief of Civil Rights in the Civil Division of
the U.S. Attorney’s Office in the Eastern District of New York. Mr.
Goldberger has served as an Assistant U.S. Attorney for 26 years, the
last 15 as Civil Rights Chief. In that capacity, he has litigated
virtually every type of Affirmative Civil Rights case independently
and collaboratively with attorneys from the Civil Rights Division. He
is a graduate of the University of Pennsylvania and Fordham
University School of Law.
Jennifer A. Serafyn
A civil rights litigator, Michael J. Butler, is currently the Civil
Rights Coordinator, Diversity Chairperson, Special Emphasis
Program Manager, and civil Assistant U.S. Attorney for the Middle
District of Pennsylvania (Harrisburg office). He has been with the
USAO since January 14, 2004, and works on affirmative civil rights
matters and defends individual employees of the United States in civil
litigation. Born and raised in Philadelphia, Michael received his Juris
Doctorate with honors in 1997 from Widener University School of
Law–Harrisburg Campus (1997). Before law school, he worked as a
paralegal in the investment management division of the law firm of
Drinker Biddle & Reath. At Widener, he represented impoverished
clients as a student on the Civil Law Clinic, was the research
assistant for two professors, provided pro bono services to the
Pennsylvania Coalition Against Rape, and was a board member of the
law review. After law school, Judge A. Richard Caputo of the Middle
District of Pennsylvania hired him as his first law clerk. After his
clerkship, Michael worked at the law firm of Montgomery,
McCracken, Walker & Rhoads, representing local governments and
public officials in civil rights litigation.


Friends of the Court: Amicus
Briefs and Statements of Interest
in Civil Rights Cases
Susan K. DeClercq
Eastern District of Michigan
Elizabeth Parr Hecker
Special Litigation Counsel
Appellate Section
I. Introduction
One of the principal roles of the Department of Justice (Department)
is protecting the civil rights of all individuals in the United States. It
does this primarily through investigations and enforcement actions by
the Civil Rights Division (Division), in partnership with U.S.
Attorney’s Offices. But private individuals also bring civil rights
actions in federal court. The Department has a strong interest in
ensuring that these cases’ federal civil rights laws are interpreted and
applied consistently across the country.
Indeed, from time to time, private civil rights litigation will present
a particularly novel or important issue regarding the interpretation of
a federal civil rights statute or constitutional provision. In those
instances, the United States may wish to formally provide its views to
assist the court in reaching the correct decision. This article discusses
the two ways the Department may do this without becoming a party
to the litigation: filing statements of interest under 28 U.S.C. § 517 in
district courts and filing amicus briefs in the federal courts of appeals
under the Federal Rules of Appellate Procedure, subject to
authorization by the Solicitor General’s Office.
II. Statements of interest

Apart from enforcing the federal civil rights laws through its own
investigations and litigation, the Department can file briefs in trial
court cases brought by private parties where the United States is not
a party. These briefs, typically referred to as statements of interest
(SOIs), enable the Department to present its view of the law to a court
without formally intervening or otherwise becoming a party in a case.

Historically, SOIs were most often used in cases involving foreign
policy or “federal propriety, administrative, or institutional
interests.” 1 Over the past decade, however, the Department’s use of
SOIs in civil rights cases has dramatically increased, serving as an
effective mechanism for the Department to influence the development
of federal civil rights laws across the country.
A. Authority and use
1. Authority for filing statements of interest
The Attorney General has broad statutory authority to send “any
officer of the Department of Justice . . . to any State or district in the
United States to attend to the interests of the United States in a suit
pending in a court of the United States, or in a court of a State.” 2
Thus, so long as the United States has an articulable interest in a
pending suit, it can submit an SOI in any federal district court or
state court. This authority reflects the unique role of the
United States to contribute to the national dialogue on important
issues, such as civil rights, where resolution of a particular case may
affect thousands, or even millions, of other individuals’ civil rights.
2. Statements of interest in context
The Department may file SOIs in virtually any stage of federal
district court litigation. 3 Although most commonly filed in the context
of motions to dismiss, they may also be filed when the court is
considering a motion for preliminary injunction, a motion for
summary judgment, or similar motions. In addition, the Division has
filed SOIs in cases where the government has related pending
1 See Victor Zapana, The Statement of Interest as a Tool in Federal Civil

Rights Enforcement, 52 HARV. C.R.-C.L. L. REV., 227, 232 (2017).
2 28 U.S.C. § 517.
3 See, e.g., Statement of Int. of the U.S., Diamond v. Ward, No. 20-cv-453
(M.D. Ga. Apr. 22, 2021), ECF No. 65 [hereinafter Diamond v. Ward
Statement of Int.] (motion for preliminary injunction); Statement of Int. of
the U.S., Holt v. Kelley, No. 19-cv-81 (E.D. Ark. June 24, 2020), ECF No. 64
(motion for summary judgment); Statement of Int. of the U.S., Coleman v.
Brown, No. 90-cv-0520 (E.D. Cal. Aug. 9, 2013), ECF No. 4,736 [hereinafter
Coleman v. Brown Statement of Int.] (motion for enforcement of court orders
and affirmative relief).

investigations 4 and where the case may have an incidental effect on
Department litigation. 5
Generally, when the Department files an SOI, that document
constitutes its sole involvement in the case. Sometimes, however,
filing an SOI creates opportunities for the Department to participate
in other aspects of a case. For example, the Department may be
allowed to participate in subsequent phases of the case when it would
assist the court, such as in settlement discussions, 6 at oral argument, 7
or as amicus curiae if the case is eventually appealed.
Although there are many circumstances in which the Department
files SOIs, the scope of an SOI brief itself is usually fairly narrow. For
example, although SOIs are typically filed in support of one side over
another, in some cases they do not take a position on which party
should prevail. This is because an SOI is generally limited to
articulating the correct legal rule or principle, and the particular facts
to which that rule or principle applies are often disputed. Also, SOIs
often address only certain legal issues, while expressly taking no
position on others. 8 And sometimes, they simply provide guidance to
the court on a framework within which to decide an issue, 9 the
remedies that may be available if liability is found, 10 or to draw the
court’s attention to positions that the Department previously took in
similar matters. 11
4 See, e.g., Diamond v. Ward Statement of Int., supra note 3; Statement of

Int. of the U.S., Weckhorst v. Kansas State Univ., No. 16-cv-02255
(D. Kan. July 1, 2016), ECF No. 32.
5 See, e.g., Statement of Int. of the U.S., Youkhanna v. City of Sterling
Heights, No. 17-cv-10787 (E.D. Mich. Apr. 13, 2017), ECF No. 20.
6 See, e.g., Statement of Int. of the U.S., Padilla v. City of New York,
No. 13-cv-0076 (E.D.N.Y. Nov. 22, 2013), ECF No. 41.

7 For example, the United States participated in oral argument after filing an
SOI (titled Amicus Brief) in Albanian Associated Fund v. Township of Wayne,

No. 06-cv-3217 (D.N.J. 2009), and Garden State Islamic Ctr. v. Vineland,
No. 17-cv-01209 (D.N.J. 2020).
8 See, e.g., Statement of Int. of the U.S., Greater Birmingham Ministries v.
State of Ala., No. 15-cv-02193 (N.D. Ala. July 1, 2016), ECF No. 75.
9 See, e.g., Statement of Int. of the U.S., Martin v. City of Boise, No. 09-cv-540
(D. Idaho Aug. 6, 2015), ECF No. 276.

10 See, e.g., Statement of Int. of the U.S., Ball v. LeBlanc, No. 13-cv-368
(M.D. La. Aug. 2, 2013), ECF No. 64.

11 See, e.g., Coleman v. Brown Statement of Int., supra note 3; Statement of
Int. of the U.S., Ga Advoc. Off. v. Labat, No. 19-cv-1634 (N.D. Ga. June 20,

Courts generally have been receptive to the guidance provided by
the Department through SOIs. Although there is no statistical data
demonstrating the Department’s success rate in these matters, courts
are often appreciative that the Department submitted its views and
frequently mention the Department’s SOIs in their opinions 12 or quote
language from the SOIs to support their decisions. 13
B. The Civil Rights Division’s use of Statements of
Interest
The Division’s use of SOIs substantially increased under the Obama
Administration as part of the efforts of then-Assistant Attorney
General for Civil Rights Thomas E. Perez, who viewed the
United States’ participation in private litigation as part of “the
Division’s commitment to using all of the tools available to ensure the
nation’s civil rights laws are enforced to the fullest extent possible.” 14
Since that time, the Department has used SOIs to advance the
United States’ civil rights interests in a variety of contexts and ways.
Most often, the issues the Department addresses in its SOIs align
with the Division’s enforcement jurisdiction, 15 and the Department
has filed SOIs in civil rights cases that span the enforcement interests
of every section of the Division. 16 For example, the Department often
files SOIs to ensure that the courts correctly interpret and apply a
particular federal statute over which the Division has enforcement
2019), ECF No. 43; U.S. Statement of Int., Fortune Soc’y, Inc. v. Sandcastle
Towers Hous. Dev. Fund Corp., No. 14-cv-06410 (E.D.N.Y. Oct.18, 2016),
ECF No. 102.
12 See, e.g., T.R. v. Sch. Dist. of Phila., 223 F. Supp. 3d 321, 327
(E.D. Pa. 2016).

13 See, e.g., Congregation Etz Chaim v. City of L.A., No. 10-cv-1587, 2011 U.S.
Dist. LEXIS 158418 (C.D. Cal. July 11, 2011).

14 Thomas E. Perez, Assistant Attorney General, Oversight of the U.S.
Department of Justice, Civil Rights Division, Hearing Before the S. Comm.

on the Judiciary, 111th Cong. (Apr. 20, 2010).
15 See Statement of Int. of the U.S., Nat’l Fair Hous. All. v. Facebook, Inc.,
No. 18-cv-02689 (S.D.N.Y. Aug. 17, 2018), ECF No. 48.

16 See About the Division, DEP’T OF JUST, https://www.justice.gov/crt/about-
division (updated Sept. 22, 2021).

authority. 17 In recent years, however, the Department has used SOIs
to advance its positions on a broader range of issues, such as student
expressive speech18 and the constitutionality of COVID-19
restrictions. 19 The Department has also partnered with other federal
agencies on SOIs in cases where there is overlapping jurisdiction or
interest. 20
Sometimes, SOIs are submitted as part of a formally announced
Division initiative or strategy. For example, since 2009, the
Department has filed more than 30 SOIs in cases involving the
unnecessary segregation of persons with disabilities 21 as part of the
Division’s “aggressive effort to enforce the Supreme Court’s decision in
Olmstead v. L.C.” 22 SOIs have also been used to shape developing
areas of the law. For example, the Department has filed SOIs relating
to the emerging legal issue of gender identity in schools and the
17 See Statement of Int. of the U.S., Sch. Dist. of Phila., No. 15-cv-04782,
ECF No. 19; see also Statement of Int. of the U.S., Hacker v. Cain,
No. 14-cv-0063 (M.D. La. Dec. 7, 2016), ECF No. 203.
18 See, e.g., U.S. Statement of Int., Shaw v. Burke, No. 17cv2386
(C.D. Cal. Oct. 24, 2017), ECF No. 39; U.S. Statement of Int., Uzuegbunam v.
Preczewski, No. 16-cv-04658 (N.D. Ga. Sept. 26, 2017), ECF No. 37;
U.S. Statement of Int., Young Am. Found. v. Napolitano, No. 17-cv-02255
(N.D. Cal. Jan. 25, 2018), ECF No. 44; U.S. Statement of Int., Speech First,
Inc. v. Schlissel, No. 18-cv-11451 (E.D. Mich. June 11, 2018), ECF No. 14;
U.S. Statement of Int., Brown v. Jones Cnty. Junior Coll., No. 19-cv-00127
(S.D. Miss. Dec. 9, 2019), ECF No. 23.
19 See, e.g., Statement of Int. on Behalf of the U.S., Bayley’s Campground,
Inc., v. Mills, No. 20-cv-00176 (D. Me. May 29, 2020), ECF No. 19; Statement
of Int. on Behalf of the U.S., Signature Sotheby’s Int’l Realty, Inc. v.
Whitmer, No. 20-cv-00360 (W.D. Mich. May 29, 2020), ECF No. 14;
Statement of Int. on Behalf of the U.S, Bailey v. Pritzker, No. 20-cv-00474
(S.D. Ill. May 22, 2020), ECF No. 15.
20 See U.S. Statement of Int., Brown v. Jones Cnty. Junior Coll., No.
19-cv-00127 (S.D. Miss. Dec. 9, 2019), ECF No. 23 (submitted jointly with
U.S. Department of Education).
21 See Olmstead Enforcement, DEP’T OF JUST,
https://www.ada.gov/olmstead/olmstead_cases_list2.htm#tidball (last visited

Dec. 1, 2021) (collecting cases).
22 Olmstead: Community Integration for Everyone, DEP’T OF JUST.,
https://www.ada.gov/olmstead/index.html (last visited Dec. 1, 2021).

protections under Title IX of the Education Amendments of 1972. 23
The Department also has submitted SOIs in cases involving matters
arising under long-standing controversies, such as what constitutes a
substantial burden under the Religious Land Use and
Institutionalized Persons Act. 24
C. The role of U.S. Attorney’s Offices
U.S. Attorney’s Offices (USAOs) often play a vital role in developing
and filing SOIs. Sometimes, the Division will initiate the preparation
of an SOI and then contact the relevant USAO to offer that office the
opportunity to review the SOI and be a signatory on the brief. More
and more, Assistant U.S. Attorneys (AUSAs) who handle civil rights
cases are taking an active role in developing SOIs. Located in each
federal judicial district, USAOs have unique opportunities to identify
civil rights issues and cases in their community. AUSAs may become
aware of potential matters through local attorneys and advocates,
individual community contacts, local media reports, or other sources.
If an AUSA becomes aware of a good candidate for an SOI, the
AUSA should contact the relevant section(s) of the Division. 25 When
determining whether a case would be appropriate for an SOI, AUSAs
should consider the factors set forth in section III, infra. Practical
considerations, such as timing and available resources, are also
critical. Thus, the AUSA should provide as much information as
possible about the case and its procedural posture to assist with the
decision of whether to file an SOI, including whether the AUSA is
interested in preparing the first draft of the brief.
23 Education Amendments of 1972 tit. IX, 20 U.S.C. §§ 1681–1688V; see, e.g.,

Statement of Int. of the U.S., B.P.J. v. West Va. State Bd. of Educ., No.
21-cv-00316 (S.D.W. Va. June 17, 2021), ECF No. 42; Statement of Int. of the
U.S., G.G. v. Gloucester Cnty. Sch. Bd., No. 15-cv-00054 (E.D. Va. June 29,
2015), ECF No. 28.
24 Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.
§§ 2000cc–2000cc-5; see, e.g., U.S. Statement of Int. in Support of Neither

Party, Thai Meditation Ass’n of Ala. v. City of Mobile, No. 16-cv-00395
(S.D. Ala. May 7, 2021), ECF No.199; U.S. Statement of Int. in Support of
Plaintiffs’ Motion for Partial Summary Judgment and in Opposition to
Defendant’s Motion for Summary Judgment or, in the Alternative, Partial
Summary Judgment, Congregation Etz Chaim v. City of L.A., No. 10-cv-1587
(C.D. Cal. Apr. 28, 2011), ECF No. 134.
25 See JUSTICE MANUAL 8-2.170C.

Because every SOI must be reviewed and approved by the Division’s
senior leadership, the AUSA should contact the Division as soon as
possible. Regardless of the nature of the issue, the briefing schedule
must allow enough time for the SOI to be drafted, approved, and filed.
Allowing for sufficient time also gives the Division time to evaluate
the case in light of similar issues that may be pending in other
districts or appellate courts.
III. Amicus briefs

Like SOIs, briefs as “amicus curiae” (meaning, “friend of the court”)
afford the Division an opportunity to set forth its views in cases where
the United States is not a party. While SOIs are filed in trial courts,
amicus briefs are filed in federal (and sometimes state) courts of
appeals. 26 And like SOIs, amicus briefs play an important role in
helping courts reach decisions and in shaping the law in cases
involving the interpretation or application of a statute or
constitutional provision the Division enforces. Unlike SOIs, amicus
briefs require authorization from the Solicitor General’s Office and are
governed by the Federal Rules of Appellate Procedure. 27
A. Obtaining approval to file amicus briefs
The Solicitor General must approve all requests for amicus
participation by the Division, as well as the arguments the Division
proposes to advance. The Division’s Appellate Section coordinates the
process of obtaining approval from the Solicitor General.
If the Appellate Section believes amicus participation is warranted
in a particular civil rights case pending in a court of appeals, it will
prepare a memorandum for the Solicitor General requesting
authorization to participate as amicus. The Office of the Assistant
Attorney General for Civil Rights will review the memorandum and, if
it agrees with the Section’s recommendation, transmit the
memorandum and any accompanying documentation to the Solicitor
General’s Office. The Solicitor General’s Office should receive this
information no later than 30 days before an amicus brief would be
26 The Department may also file amicus briefs in the Supreme Court through
the Solicitor General’s Office. This article does not discuss amicus practice in
the Supreme Court.
27 See 28 C.F.R. § 0.20(c).

due. If the Solicitor General approves of amicus participation, the
Appellate Section will draft an amicus brief.
B. Procedure for filing amicus briefs
Unlike private parties, the United States may file an amicus brief in
a federal court of appeals without first seeking the court’s approval. 28
1. Timing
The United States may file an amicus brief in support of either
party to the litigation or neither party. If filing in support of a party,
the United States must file its amicus brief within seven days after
the party it is supporting files its principal brief. 29 If the United States
files an amicus brief on behalf of neither party, weighing in only on a
certain issue without taking a position on how the court should rule
on the merits, the amicus brief must be filed within seven days after
the appellant’s (or petitioner’s) brief is filed. 30
2. Participating in oral argument
When the Division files an amicus brief, it may wish to participate
in oral argument. If so, the Appellate Section, typically, will contact
attorneys for the party it is supporting and request to share in oral
argument time. The Appellate Section will then file a motion to
participate. The court must approve any participation in oral
argument by any amicus curiae participant, including the
United States. 31
C. The role of U.S. Attorney’s Offices
U.S. Attorney’s Offices are important partners in identifying private
litigation where amicus participation by the Division may be
appropriate. As provided in Justice Manual 8-2.150 and
8-2.170D, if a USAO identifies a potential amicus candidate being
litigated in its district, it should immediately notify the Division’s
Appellate Section. Shortly thereafter, it should send an email or short
memorandum to the chief of the Appellate Section stating the date of
entry of the judgment in the trial court, the status of the appeal, the
issues on which the USAO recommends amicus participation, the
28 FED. R. APP. P. 29(a)(2).

29 FED. R. APP. P. 29(a)(6).
30 Id.
31 FED. R. APP. P. 29(a)(8).

reasons for the recommendation, and the names of any AUSAs
familiar with the case. The matter will be promptly assigned to an
Appellate Section attorney and reviewer. As discussed above, if the
Appellate Section believes that amicus participation is warranted, it
will seek authorization from the Solicitor General to participate as
amicus. The Appellate Section will transmit any recommendation
from the USAO to the Solicitor General, along with the Division’s
memorandum seeking authorization to participate.
The Appellate Section welcomes the assistance of a USAO in
crafting legal strategy and reviewing draft amicus briefs in litigation
arising in a USAO’s district. If the United States participates in oral
argument and the USAO has been substantially involved in the
research, drafting, or review of the amicus brief, the USAO will be
invited to participate in moot courts.
IV. Factors considered by the Division in

filing amicus briefs and statements of
interest
“Civil rights” cases encompass a vast swath of private litigation,
from a gender discrimination case brought by an individual against
her employer, to a class action alleging unconstitutional conditions of
confinement by a major city prison system, to a nonprofit’s suit
against a state challenging voting laws. Because the Division does not
have the resources to participate in all private civil rights cases
pending across the country, it must focus its resources where they are
most likely to have the greatest impact.
A. Participation is generally limited to seven
categories
Justice Manual 8-2.170, which governs the enforcement of civil
rights statutes and, more specifically, the standards for amicus
participation and SOIs, sets forth seven categories of cases where
participation is appropriate. 32 These categories are listed below, along
with a recent amicus brief example of each.
32The Justice Manual is ambiguous as to whether Parts A and B of 8-2.170,

which set out substantive guidelines, apply only to amicus briefs filed in
courts of appeals or also to SOIs filed in district courts. In any case, because
the same guidelines are relevant to both kinds of filings, Department

1. A court requests the United States’ participation
Sometimes, a court of appeals asks the United States to file an
amicus brief in a particular case or to address a particular issue in a
case. For example, the First Circuit, sitting en banc, requested the
United States’ views in Cushing v. Packard, 33 a case arising under
Title II of the Americans with Disabilities Act (ADA) 34 and section 504
of the Rehabilitation Act (RA). 35 In that case, New Hampshire state
legislators with disabilities that made them vulnerable to
complications from COVID-19 sued the Speaker of the
New Hampshire House of Representatives in his official capacity,
alleging that his refusal to permit the plaintiffs to participate
remotely in legislative sessions violated the ADA and section 504. 36
The central issue on appeal was whether the common-law doctrine of
legislative immunity barred the suit. 37 The Division filed an amicus
brief arguing that legislative immunity did not apply because the
plaintiffs’ claim lay against the state, whereas legislative immunity
shields individuals from personal liability only when they are
performing legislative functions. 38
2. A party challenges the constitutionality of a
federal civil rights statute
Though 28 U.S.C. § 2403 authorizes the United States to intervene
in cases involving a challenge to the constitutionality of a federal
statute, the Department also may file an amicus brief in such cases
rather than intervene. For example, the Division has filed multiple
amicus briefs defending the constitutionality of federal civil rights
statutes against state claims of sovereign immunity. 39
attorneys should consider these criteria in evaluating whether to file either

an SOI or an amicus brief.
33 Cushing v. Packard, 994 F.3d 51 (1st Cir. 2021).
34 Americans with Disabilities Act tit. II, 42 U.S.C. §§ 12131–12165.
35 Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794.
36 Cushing, 994 F.3d at 51.

37 Id.
38 Brief for the U.S. as Amicus Curiae in Support of Plaintiffs-Appellants and
Urging Reversal, Cushing, 994 f.3d 51 (No. 21-1177).

39 See, e.g., U.S. Br. as Amicus Curiae, Clark v. Virginia Dep’t of State Police,
No. 151857 (Va. S. Ct. May 17, 2016) (urging that Congress validly subjected
States to suit under the Uniformed Services Employment and Reemployment
Rights Act, Pub. L. No. 103-353, 108 Stat. 3149 (1994), because the

3. The case involves the interpretation of a civil
rights statute, Executive Order, or regulation that
the Department promulgated or is empowered to
enforce
The Division often participates as amicus curiae in cases involving
the interpretation of a statute or regulation that the Division enforces.
For example, in Chambers v. District of Columbia, 40 the Division filed
an amicus brief addressing whether an employer’s denial of a request
for a lateral transfer—that is, a transfer involving the same pay and
benefits—on the basis of the requesting employee’s sex violates
Title VII’s prohibition of discrimination “with respect to . . .
compensation, terms, conditions, or privileges of employment.” 41 The
Division argued that all forced job transfers (and denials thereof)
based on an employee’s race, color, religion, sex, or national origin are
actionable under Title VII. 42
4. The case raises issues that will likely affect the
Division’s enforcement jurisdiction
Similarly, when a case may establish precedent affecting the
Division’s enforcement jurisdiction, the Division is likely to participate
as amicus. In Fox v. Gaines, 43 the district court held that a housing
provider’s actions designed to terminate a tenancy, taken in response
to the tenant’s refusal to continue providing sexual favors in return
for assistance with her monthly rent, did not constitute discrimination
“because of” sex in violation of section 804(b) of the Fair Housing Act
(FHA) 44 because the FHA did not prohibit sexual harassment. This
legislation was enacted pursuant to Congress’s War Powers); Brief for the
U.S. as Intervenor and Amicus Curiae Supporting Plaintiff-Appellee and
Urging Affirmance, King v. Marion Cnty. Cir. Ct., 868 F.3d 589
(7th Cir. 2017) (No. 16-3726) (arguing that Congress validly abrogated
States’ sovereign immunity to suits under Title II of the Americans with
Disabilities Act, 42 U.S.C. §§ 12131–12165).
40 Chambers v. District of Columbia, No. 19-7098, 2021 WL 1784792
(D.C. Cir. May 5, 2021).

41 See 42 U.S.C. § 2000e-2(a)(1).
42 U.S. Br. as Amicus Curiae, Chambers v. District of Columbia, No. 19-7098
(D.C. Cir. July 7, 2021).

43 Fox v. Gaines, 4 F.4th 1293 (11th Cir. 2021).
44 Fair Housing Act § 804, 42 U.S.C. § 3604(b).

conclusion conflicted not only with the Division’s long-standing
interpretation of the FHA, but also with its years-long initiative
combating sexual harassment in housing. The Division filed an
amicus brief arguing that sexual harassment—including harassment
where a property manager conditions certain rental terms on a
tenant’s performance of sexual favors—violates the FHA when such
conditions would not have been imposed but for the tenant’s sex. 45 The
court of appeals reversed the district court, holding, in line with the
Division’s amicus brief, that sexual harassment is actionable under
the FHA if the plaintiff demonstrates that she would not have been
harassed but for her sex. 46
5. The case raises important constitutional
challenges under the First or Fourteenth
Amendments to the U.S. Constitution
In some circumstances, the Division is empowered by federal statute
to enforce the First and Fourteenth Amendments to the Constitution.
For example, Title IV of the Civil Rights Act authorizes the Attorney
General to enforce the Equal Protection Clause’s ban on sex
discrimination in public schools, 47 and the Civil Rights of
Institutionalized Persons Act allows the Attorney General to address
constitutional violations in institutional settings. 48 As such, the
Department has an interest in litigation involving the interpretation
of those constitutional provisions.
Relatedly, the Division has filed amicus briefs addressing
Fourteenth Amendment issues relating to Executive Orders. For
example, in Corbitt v. Taylor, plaintiffs alleged that Alabama’s policy
requiring that transgender individuals undergo “gender reassignment
surgery” before they may amend the sex designation on their driver
licenses violated the Equal Protection Clause of the Fourteenth
Amendment. 49 The Division filed an amicus brief relying on its
interest in enforcing Executive Order No. 13,988, Preventing and
45 U.S. Br. as Amicus Curiae, Fox v. Gaines, No. 20-12620 (11th Cir.
Sept. 30, 2020).
46 Fox, 4 F.4th at 1297.
47 Civil Right Act of 1964 § 407, 42 U.S.C. § 2000c-6.

48 Civil Rights of Institutionalized Persons Act § 5, 42 U.S.C. § 1997c(a)(1).
49 Brief of the U.S. as Amicus Curiae Supporting Plaintiffs-Appellees and
Urging Affirmance, Corbitt v. Taylor, No. 21-10486 (11th Cir. Aug. 2, 2021)
[hereinafter Corbitt Amicus].

Combating Discrimination on the Basis of Gender Identity or Sexual
Orientation, which provides in part that “[a]ll persons should receive
equal treatment under the law, no matter their gender identity or
sexual orientation.” 50 The brief argued that Alabama’s policy
warranted heightened scrutiny because it discriminated on the base of
sex and gender identity and that the State failed to show that the
policy served important governmental objectives and was
substantially related to achieving those objectives. 51
6. The case raises issues that could significantly
affect private enforcement of statutes enforced by
the Division
Most federal civil rights statutes that the Division enforces also
permit suits by private litigants. The Division has an interest in
ensuring that courts do not erroneously limit the ability of private
litigants to bring such actions. For example, in Doe v. Dallas
Independent School District, 52 a plaintiff sued a school district on
behalf of her daughter, a high school student with disabilities, who
was raped by another student in the restroom attached to her
classroom. 53 The plaintiff alleged that the high school acted with
deliberate indifference in violation of Title IX. 54 The district court
dismissed the Title IX claim for failure to administratively exhaust
the claim under the Individuals with Disabilities Education Act’s
(IDEA) exhaustion provision. 55 The Division filed an amicus brief
arguing that the IDEA’s exhaustion provision did not apply to
plaintiff’s Title IX claim. 56 The court of appeals agreed with the
United States that, where a person with disabilities seeks Title IX
relief that a person without disabilities could also seek and requests
relief that is different from, or in addition to, a free appropriate public
50 Exec. Order No. 13,988, 86 Fed, Reg. 7,023 (2021) (Preventing and
Combating Discrimination on the Basis of Gender Identity or Sexual
Orientation).
51 Corbitt Amicus, supra note 49.
52 Doe v. Dallas Indep. Sch. Dist., 941 F.3d 224 (5th Cir. 2019).
53 Id. at 226–227.
54 Id.
55 Id.
56 Brief for the U.S. as Amicus Curiae Supporting Appellant and Urging
Reversal, Dallas Indep. Sch. Dist., 941 F.3d 224 (No. 18-10720).

education under the IDEA, the IDEA’s exhaustion requirement does
not apply. 57
7. The case presents special federal interests that are
clear and are unlikely to be well-served by private
litigants
There are certain circumstances where either party to a case may
not have sufficient experience or resources to identify and address an
important civil rights issue, or where neither party in the case is
advancing an argument that aligns with the Department’s view of the
law. In such cases, the Division may decide to participate as amicus to
set forth its views on the proper interpretation and application of the
law.
One context implicating the former situation is pro se cases brought
by individuals who are incarcerated. For example, in Stansell v.
Grafton Correctional Institution, 58 a pro se inmate with a disability
alleged that the prison denied him a reasonable accommodation in
violation of Title II of the ADA and section 504 of the RA when it
refused to provide him appropriate seating during visitation hours. 59
The district court dismissed plaintiff’s complaint on the ground that
he did not allege a complete exclusion from the prison’s visitation
program, but only defects in the visitation room’s design features. 60
The United States filed an amicus brief arguing, among other things,
that: (1) prison visitation is a service, program, or activity covered by
Title II and section 504; and (2) a plaintiff need not allege a complete
exclusion from the service, program, or activity to state a Title II or
section 504 claim. 61 The court of appeals vacated the dismissal of
Stansell’s Title II and section 504 claims and remanded the case back
to the district court to determine whether the plaintiff had alleged a
cause of action under the correct legal standard. 62
57 Dallas Indep. Sch. Dist., 941 F.3d at 224.

58 Stansell v. Grafton Corr. Inst., No. 18-3765, 2019 WL 3857021
(6th Cir. Aug. 18, 2019).
59 Id. at *1.
60 Id.
61 Brief for the U.S. as Amicus Curiae Supporting Plaintiff-Appellant and
Urging Vacatur and Remand for Further Proceedings, Stansell, No. 18-3765.
62 Stansell, 2019 WL 3857021 at *1.

B. Factors the Department must consider in
determining whether to participate as amicus
Justice Manual 8-2.170 instructs the Division to consider the
following prudential factors in determining whether to recommend
amicus participation in a particular case.
1. The importance of the issue to be addressed, the
level of the court in which it is posed, and the
probable impact of its resolution
Obviously, the more important the legal issue, the greater the
likelihood that amicus participation is appropriate. A related factor is
the procedural posture of the case. If the case is on appeal on
interlocutory review or at the preliminary injunction stage, the issue
may be more fact-intensive and the legal issue less developed, which
may weigh against participation.
Also, if there is settled precedent on the legal issue in the particular
circuit, it may be unnecessary for the Department to offer its views.
For example, if a case raises the issue of whether certain conduct
violates Title VII, that circuit has already addressed the issue, and
there is no reason to believe the court can or will deviate from its
precedent, the Division is unlikely to participate. On the other hand, if
the court of appeals has not addressed the issue, but other courts of
appeals have, the Division may consider amicus participation to
ensure consistent and proper development of the law.
2. The probability that the Division will be able to
substantially contribute to the resolution,
including the competence of private counsel, the
state of the record, and timeliness
The Division wants to participate in those cases in which it can
make a difference and be helpful to a court. If the plaintiff is pro se, or
if plaintiff’s counsel is inexperienced in civil rights law or has never
handled a case under the particular statute, the Division might
consider submitting an amicus brief to ensure that the issues in the
case are adequately framed and that all relevant caselaw and
legislative history is before the court.
In other situations, a privately litigated case may implicate a novel
and important issue, but there are numerous substantive factual
disputes, or it is unclear from the record whether the plaintiff actually
advanced the legal issue below. In these circumstances, the Division

might recommend against amicus participation. Similarly, where the
Division does not learn of an amicus opportunity until the week before
an amicus brief would be due, the Division likely would conclude that
there is insufficient time to research, draft, and get approval for the
filing of the brief.
3. The wisdom of amicus participation as
distinguished from intervention
Where the Division believes that its interests would be better served
by becoming a party to certain litigation, it may forego amicus
participation and intervene instead. For example, if the United States
may obtain certain relief that private plaintiffs may not, intervention
may be appropriate. Justice Manual 8-2.140 provides that a USAO
should notify the Division upon learning of a case in which
intervention might be appropriate or when directed by a court to
intervene. 63 Like amicus participation, intervention is subject to
authorization by the Solicitor General.
4. The Civil Rights Division’s resources
Where a particular matter might otherwise warrant amicus
participation but, at the time, the Division lacks the resources
necessary to research and draft an amicus brief, the Division may
forego amicus participation.
V. Conclusion
SOIs and amicus briefs are powerful tools for the Department in the
enforcement of federal civil rights laws. SOIs and amicus briefs can
reach beyond the individual cases in which they are filed, as they
publicly express the position of the United States. They often are cited
by parties and courts in other cases. No other entity speaks with more
authority than the United States with respect to the meaning and
reach of federal civil rights statutes.
SOIs and amicus briefs allow the Department to shape the law,
generally using far fewer resources than it would in its own
investigations and cases: The brief is usually written by a single
attorney, and the Department can rely on the facts as alleged or
developed in the record, eliminating the need to litigate factual
disputes. And, in keeping with the Department’s unique role, it can
63 JUSTICE MANUAL 8.2.140.

file SOIs and amicus briefs in federal court without the consent of the
parties or the court. The Division and USAOs should continue their
strong efforts to make the Department’s voice heard as a friend of the
court on important civil rights issues through SOIs and amicus briefs.
About the Authors
Susan K. DeClercq is Chief of the Civil Rights Unit of the U.S.
Attorney’s Office for the Eastern District of Michigan. Before
beginning her current position in 2014, she was an AUSA in the
office’s Civil Rights and Defensive Litigation Units. Before joining the
U.S. Attorney’s Office, Ms. DeClercq was an associate at the firm of
Skadden, Arps, Slate, Meagher, and Flom in Washington, D.C., and a
law clerk for U.S. District Court Judge Hon. Avern L. Cohn.
Elizabeth Parr Hecker is a Special Litigation Counsel in the Civil
Rights Division’s Appellate Section, where she briefs and argues
appeals of civil rights cases. Before joining the Appellate Section, she
was a Senior Counsel in the Department of Justice’s Office of Legal
Policy. From 2008 to 2013, Ms. Hecker was a trial attorney in the
Civil Rights Division’s Housing and Civil Enforcement Section. She
serves as an Adjunct Professor at George Washington University Law
School. Before joining the Department, Ms. Hecker worked as an
associate at two national law firms. Ms. Hecker clerked for the
Honorable Marjorie O. Rendell on the United States Court of Appeals
for the Third Circuit.


Polling Place Accessibility
Michael J. Butler
Civil Rights Coordinator
Middle District of Pennsylvania
Elizabeth Johnson
Senior Trial Attorney
U.S. Attorney Program Coordinator
Disability Rights Section
I. Introduction: rolling backwards and

climbing stairs to reach polling places
During a hot spring election day in the middle of Pennsylvania, the
Department of Justice (Department) conducted a survey of polling
places to determine their physical accessibility for voters with
disabilities under Title II of the Americans with Disabilities Act
(ADA). 1 While examining a parking lot, an Assistant U.S. Attorney, on
his knees in his suit and tie with a level in hand, heard grumbles from
poll workers that nobody with a disability complains about this polling
place. At that moment, a van arrived in the lot. Two voters, one a
wheelchair user, exited the vehicle and proceeded to the polling place.
Attempting to maneuver up the steep lot, the voter using the
wheelchair lost control of her chair and rolled backwards; she turned
white, and her face was gripped with fear. Just before tipping over,
her partner rushed to catch her. The poll workers went silent and
sharply observed their shoes.
Individuals with disabilities often face challenges in voting that
others do not. Obstacles like a cracked sidewalk or a grass walkway
up to a building entrance may seem trivial to some, but these
obstructions can prevent someone with a disability from entering a
polling place. Indeed, climbing several stairs is an inconsequential
requirement for many voters, but many individuals with mobility
disabilities cannot climb those steps. Lifting the wheelchair or even
the person up the steps (yes, this happened too on that hot spring
1Americans with Disabilities Act of 1990, Pub. L. No. 101-336, Title II, § 202,
104 Stat. 337 (1990), amended by 42 U.S.C. § 12132 and its implementing
regulation, 28 C.F.R. Part 35.

election day) is not a workable solution for at least two reasons. First,
the risk of injury to both the voter and those lifting the voter
increases. Second, being carried can be humiliating to wheelchair
users who value their independence.
In November 2016, “[t]here were about 35.4 million voting[ ]age
people with disabilities in the [United States]”—almost “[one] out of
[six] people of voting age.” 2 In 2016, almost “one-third (30 percent) of
voters with disabilities reported difficulty in voting at a polling
place . . . , compared to only 8 percent of voters without disabilities.” 3
Some of the most common difficulties included physical barriers at the
polling place, such as steps at the entrance or steep slopes on the
walkway. 4 The ADA addresses these issues and provides standards for
local election officials so that they can ensure their polling places are
accessible to voters with disabilities.
This article will provide you with insight on how the ADA protects
the rights of voters with disabilities to exercise their fundamental
right to vote at local polling places and what the Civil Rights Division
and U.S. Attorneys’ Offices (USAOs) are doing across the country to
enforce those rights. This good work, emanating from the partnership
between the Disability Rights Section (DRS) of the Civil Rights
Division and the USAOs currently doing ADA polling place reviews,
should continue, and other USAOs should consider making ADA
polling place reviews a part of their civil rights practice. The USAO
and DRS voting work has proven to be effective and valuable, but
unfortunately, the work isn’t done, and ADA violations continue to
exist.
II. The ADA requires polling places to be

accessible
Title II of the ADA provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any
2 Lisa Schur, Professor Rutgers University, Disability, Voter Turnout, and

Polling Place Accessibility, Presentation to the Nat’l Acads. of Scis., Eng’g, &
Med.’s Comm. on the Future of Voting (June 12–13, 2017).
3 Lisa Schur et al., Disability, Voter Turnout, and Polling Place Accessibility,
98 SOC. SIC. Q. no. 5, 1374, 1374 (2017).

4 Id. at 1382.

such entity.” 5 Title II covers anything and everything a government
entity does and requires state and local governments to ensure that
people with disabilities have a full and equal opportunity to vote. 6 It
applies to all elections, including federal, state, and local elections; to
early and absentee voting; and to all aspects of voting, from voter
registration to the selection of polling places and ballot drop box sites
to the casting of ballots. 7
The ADA’s Title II regulation requires that the selection of a polling
site or location must not exclude individuals with disabilities and that
the polling places be “accessible to and usable by individuals with
disabilities.” 8 Title II also requires jurisdictions to administer their
voting programs in the “most integrated setting appropriate to the
needs of individuals with disabilities.” 9
The Title II regulation governing physical accessibility of facilities
includes the standards to determine what makes facilities
accessible. 10 The 2010 ADA Standards for Accessible Design (2010
Standards) 11 offer the minimum requirements for newly designed and
constructed or altered state and local government facilities, public
accommodations, and commercial facilities to be readily accessible to,
and usable by, individuals with disabilities. Recall our voter who came
close to tipping over in her wheelchair because of a steep and uneven
parking lot. The 2010 Standards address her situation and provide
5 42 U.S.C. § 12132.
6 Courts have held that Title II applies to voting because it is a public
program or service. See Disabled in Action v. Bd. of Elections in City of New
York, 752 F.3d 189, 197 (2d Cir. 2014); Kerrigan v. Philadelphia Bd. of
Elections, No. 07-687, 2008 WL 3562521, at *19 (E.D. Pa. Aug. 14, 2008);
California ex rel. Lockyer v. Cnty. of Santa Cruz, No. C-05-04708, 2006 WL
3086706, at *1 (N.D. Cal. Oct. 30, 2006) (noting ADA applies to all
government programs and services, including elections).
7 Other federal laws protect the rights of voters with disabilities, including
the Voting Rights Act of 1965, the National Voter Registration Act of 1993,
the Help America Vote Act of 2002, and the Voting Accessibility for the
Elderly and Handicapped Act. See The Americans with Disabilities Act and
Other Federal Laws Protecting the Rights of Voters with Disabilities, DEP’T OF
JUST. (Sept. 2014), https://www.ada.gov/ada_voting/ada_voting_ta.htm.
8 28 C.F.R. § 35.150; see also 28 C.F.R. §§ 35.130(b)(4), 35.149.
9 28 C.F.R. § 35.130(d).
10 28 C.F.R. § Pt. 35, App. A; 28 C.F.R. §§ 35.149, 35.150, 35.151.
11 2010 ADA Standards for Accessible Design, DEP’T OF JUST. (2010),
https://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pdf.

guidance to local election officials on the requirements of an accessible
route to the polling place entrance.
The 2010 Standards require an accessible route from the accessible
parking, passenger drop-off sites, sidewalks and walkways, and public
transportation stops to get to the entrance of the polling place. 12 The
accessible route must be at least 36 inches wide. 13 It may narrow
briefly to 32 inches wide, but only for a distance of up to 24 inches. 14
The route must be free of abrupt changes in level, steps, high
thresholds, or steeply sloped walkways. 15 An accessible route is
essential for people who have difficulty walking or use wheelchairs
and other mobility devices to get into the polling place.
To assist elections officials, advocates, and voters, the Department
created a “checklist” based on the 2010 Standards to use as a polling
place accessibility guide. 16 The checklist provides useful information
and illustrations that allow inexperienced surveyors of facilities the
ability to determine whether barriers exist to voters with disabilities
at a polling place. 17 The checklist focuses on those elements of the
polling place necessary to conduct the voting programs and does not
look to see whether the facility as a whole is accessible. Rather, the
assessment is whether each facility is accessible during the election,
which means that the features and elements that voters with
disabilities must rely on, including parking, exterior and interior
routes, circulation paths, entrances, doorways, and interior routes and
spaces, are readily accessible to, and usable by, individuals with
disabilities when the facilities are in use for voting.
12 Id. at 206.2.1.
13 Id. at 403.5.1.
14 Id. (Exceptions).
15 Id. at 303.2, 303.3, 303.4.
16 DEP’T OF JUST., ADA CHECKLIST FOR POLLING PLACES (2016).
17 Another tool to help election officials, advocates, and voters, and also based
on the 2010 Standards, is Solutions for Five Common ADA Access Problems
at Polling Places, DEP’T OF JUST. (Oct. 9, 2014),
https://www.ada.gov/ada_voting/voting_solutions_ta/polling_place_solutions.
htm. This publication can assist election officials in recognizing and
remedying barriers in five commonly found areas at polling places: parking,
sidewalks and walkways, building entrances, interior hallways, and the
voting area itself.

III. The U.S. Attorney program for ADA
enforcement
For well over two decades, USAOs from across the country have
partnered with DRS to investigate and litigate a wide range of ADA
issues involving state and local government programs under Title II of
the ADA and public accommodations’ goods and services under
Title III. AUSAs independently investigate most ADA matters, with
support and assistance from DRS’s U.S. Attorney Program
Coordinators and a DRS Architect. The DRS Program Coordinators
provide model documents and assistance to AUSAs on how to conduct
a polling place investigation from the initial contact with the local
officials to a resolution of the polling place review. The DRS Architect
provides technical assistance and assists with conducting surveys on
site at polling places. With this help, USAOs have successfully
handled thousands of ADA matters, often resolved by settlement
agreements providing for changes in policies and procedures, training
for staff, and necessary relief for individual complainants. Many of
those settlements can be found on ADA.gov, the Department’s ADA
website. 18
Over the past decade, based in part on studies indicating
accessibility barriers at polling places nationwide, 19 the Civil Rights
Division, in coordination with USAOs, made voting accessibility a
priority and have increased their efforts to review polling places to
determine if they are accessible. In 2015, the Department launched
the U.S. Attorney Program ADA Voting Initiative, which focuses on
protecting the voting rights of individuals with disabilities. A
hallmark of the ADA Voting Initiative is its collaborations with
jurisdictions to increase accessibility at polling places. Through this
initiative, USAOs and DRS have surveyed over 2,400 polling places
18 Information and Technical Assistance on the Americans with Disabilities

Act, DEP’T OF JUST., https://www.ada.gov/ta-pubs-pg2.htm (last visited Jan.
11, 2022).
19 In 2008, for example, the U.S. Government Accountability Office (GAO)
conducted a study on voter turnout for individuals with disabilities and

whether barriers at polling places prevent them from voting. GAO estimated
that about 73% of all polling places had impediments to those with
disabilities. GOV’T ACCOUNTABILITY OFFICE, VOTERS WITH DISABILITIES;
ADDITIONAL MONITORING OF POLLING PLACES COULD FURTHER IMPROVE
ACCESSIBILITY 1 (2009).

and increased polling place accessibility in counties and cities of all
sizes. 20 USAOs have obtained a significant number of settlement
agreements providing for improvements in the accessibility of polling
places and board of elections offices, as well as improvements in
providing functioning accessible voting machines.
A. Case study: MDPA USAO’s work on the ADA
voting initiative
The U.S. Attorney’s Office for the Middle District of Pennsylvania
(MDPA) has made polling place accessibility a district priority.
Between 2015 and 2018, the MDPA, with assistance from DRS
architects, reviewed a sample of approximately 235 polling places in
five counties in the Middle District of Pennsylvania. The five
counties—Cumberland, Dauphin, Lackawanna, Luzerne, and York—
together have a population of approximately 203,000 people with
disabilities according to the U.S. Census Bureau’s American
Community Survey. 21 The MDPA found that, of the polling places it
surveyed, only a handful of polling places in each county were
accessible. This meant that most of the locations had at least one
physical barrier to access for voters with disabilities. 22
20 Press Release, Dep’t of Just., Attorney General Garland and Civil Rights
Division Assistant Attorney General Clarke Commemorate the 31st
Anniversary of the Americans with Disabilities Act (July 26, 2021).
21 Cumberland County, Pennsylvania, U.S. CENSUS BUREAU,
https://data.census.gov/cedsci/profile?g=0500000US42041 (last visited Nov.

18, 2021); Dauphin County, Pennsylvania, U.S. CENSUS BUREAU,
18, 2021); Lackawanna County, Pennsylvania, U.S. CENSUS BUREAU,
18, 2021); Luzerne County, Pennsylvania, U.S. CENSUS BUREAU,
18, 2021); York County, Pennsylvania, U.S. CENSUS BUREAU,
https://data.census.gov/cedsci/profile?g=0500000US42133 (last visited Oct.
15, 2021).
22 Settlement Agreements for Cumberland, Dauphin, Lackawanna, Luzerne,
and York Counties provide details of the surveys and can be found at
ADA.gov: https://www.ada.gov/luzerne_sa.html (Luzerne County 01/2017);
https://www.ada.gov/cumberland_sa.html (Cumberland County 02/2018);
https://www.ada.gov/dauphin_sa.html (Dauphin County 03/2018);
https://www.ada.gov/york_pp_sa.html (York County 10/2019);
https://www.ada.gov/lackawanna_sa.html (Lackawanna County 02/2020).

The MDPA successfully negotiated separate settlement agreements
with each county. The relief obtained in each county included changes
in the county’s policies and procedures to comply with the ADA,
including the adoption of procedures for election officials to determine
whether polling places are accessible or can be made accessible
temporarily on Election Day and ADA training for staff, poll workers,
and election officials. The agreements also require election officials to
conduct their own surveys of polling places and report them to the
USAO.
Many other USAOs around the country have conducted similar
investigations and reached comparable agreements in recent years.
For the polling place reviews to succeed, AUSAs should work with
local officials to make their voting locations accessible. For example,
in Dauphin and Cumberland Counties, election officials and county
solicitors acknowledged the issues with their polling places
immediately after the USAO’s reviews. County officials have
continued to comply with the settlement agreements and have timely
provided proposed polling place changes to the USAO for review. The
counties’ commitment to making polling places accessible and their
continuing compliance with the settlement agreements are key to
making voting accessible. As former U.S. Attorney David J. Freed for
the MDPA stated in a press release announcing the Dauphin County
settlement, the partnerships with federal and local officials ensures
“voters with disabilities will now be able to cast their ballots in person
at their polling places alongside their neighbors.” 23
IV. Most polling places continue to be

inaccessible to voters with disabilities
The need for the USAO ADA Voting Initiative continues. In 2016,
the U.S. Government Accountability Office (GAO) studied 178 polling
places in states across the country and found that approximately 60%
of those examined had impediments to voting. 24 “The most common
[obstacles] were steep ramps located outside buildings, lack of signs
23 Press Release, U.S. Dep’t of Just., United States Attorney’s Office Reaches
Settlement With Dauphin County, Pa, Over Polling Place Access For Voters
(Mar. 9, 2018).
24 Voters with Disabilities: Observations on Polling Place Accessibility and
Related Federal Guidance [Reissued on December 4, 2017], Gov’t

Accountability Off. (Dec. 4, 2017), https://www.gao.gov/products/gao-18-4.

indicating accessible paths, and poor parking or path surfaces. . . .” 25
Also in 2016, a Rutgers University study found that almost one-third
of voters with disabilities reported having difficulty voting at a polling
place, compared to 8% of voters without disabilities. 26
Recently, the U.S. Election Assistance Commission commissioned a
Rutgers University study that reviewed voting accessibility in the
November 2020 election. The report noted that, although difficulties
voting at polling places decreased from previous elections, 27 people
with disabilities were still less likely to vote than those without
disabilities. 28
These studies demonstrate that, although the ADA has provided
momentous changes over the last 31 years, more needs to be done.
More work remains to increase public awareness about the barriers
that inaccessible polling places impose on voters with disabilities.
Voters with disabilities, like the wheelchair user noted above, should
not have to choose between worrying about their safety (that is,
tipping over on a steep walkway or being carried up a flight of stairs)
and exercising their right to vote. There should be an accessible
parking space, an access aisle for them to exit their vehicle, and a
level path to the voting facility.
Accordingly, the partnership between USAOs and DRS, like the one
with the MDPA, should continue. USAOs that have not participated
in the polling place initiative should consider it. Moreover, mutually
beneficial partnerships with local officials like the ones established in
Pennsylvania need to be fostered and continued. When we all work
25 Id.
26 Schur et al., supra note 3, at 1374.
27 According to disability advocates, issues remain for individuals with visual
and cognitive impairments, a problem that may stem from either the polling
place itself or the voting machine. See Danielle Root & Mia Ives-Rublee,
Enhancing Accessibility in U.S. Elections, CTR. FOR AM. PROGRESS (July 8,
2021), https://www.americanprogress.org/issues/democracy/reports/2021
/07/08/501364/enhancing-accessibility-u-s-elections/.
28 The study found individuals with disabilities voted at a rate 7% lower than
those without disabilities of the same age. LISA SCHUR & DOUGLAS KRUSE,
DISABILITY & VOTING ACCESSIBILITY IN THE 2020 ELECTIONS: FINAL REPORT
ON SURVEY RESULTS SUBMITTED TO THE ELECTION ASSISTANCE COMMISSION
(2021); LISA SCHUR, MEERA ADYA, & DOUGLAS KRUSE, DISABILITY, VOTER
TURNOUT, AND VOTING DIFFICULTIES IN THE 2012 ELECTIONS (2013).

together, we can provide a safe and accessible polling location for all
who seek to exercise their right to vote. The ADA demands no less.
About the Authors
Michael J. Butler, a civil rights litigator, is currently the Civil
Rights Coordinator, Diversity Chairperson, Special Emphasis
Program Manager, and civil Assistant U.S. Attorney for the Middle
District of Pennsylvania (Harrisburg office). He has been with the
USAO since January 14, 2004, and works on affirmative civil rights
matters and defends individual employees of the United States in civil
litigation. Born and raised in Philadelphia, Michael received his Juris
Doctorate with honors in 1997 from Widener University School of
Law–Harrisburg Campus. Before law school, he worked as a paralegal
in the investment management division of the law firm of Drinker
Biddle & Reath. At Widener, he represented impoverished clients as a
student on the Civil Law Clinic, was the research assistant for two
professors, provided pro bono services to the Pennsylvania Coalition
Against Rape, and was a board member of the law review. After law
school, Judge A. Richard Caputo of the Middle District of
Pennsylvania hired him as his first law clerk. After his clerkship,
Michael worked at the law firm of Montgomery, McCracken, Walker &
Rhoads, representing local governments and public officials in civil
rights litigation.
Elizabeth Johnson is a Senior Trial Attorney and a U.S. Attorney
Program for ADA Enforcement Coordinator in the Department’s
Disability Rights Section, Civil Rights Division. Elizabeth has been
with the Civil Rights Division for 29 years, in the Voting Section, the
Special Litigation Section, and the DRS for the last 15 years. Before
joining the Division, Elizabeth was the Assistant Legal Director at
Southern Poverty Law Center in Montgomery, Alabama. She has
spent most of her career working on voting rights issues. Elizabeth
began her career as a law clerk to the Honorable Harold Baker, Chief
Judge of the U.S. District Court for the Middle District of Illinois. She
is a proud Spartan, receiving her B.A. degree from Michigan State
University and her J.D. from the University of Michigan Law School.


Using the Americans with
Disabilities Act to Reduce
Overdose Deaths
David Howard Sinkman
Eastern District of Louisiana
Gregory Dorchak
District of Massachusetts
I. Introduction
More Americans died in 2020 from opioid overdose than were lost in
battle during the entire Vietnam War. 1 Drug overdose is now the
leading cause of death for Americans under the age of 50. 2 Opioid
overdose deaths continue to rise year after year and, in 2020,
increased 38.5% from the year before. 3 That is more than six times as
1 Press Release, U.S. Dep’t of Justice, Deputy Attorney General Rod J.

Rosenstein Delivers Remarks at the National Congress of American Indians
(Feb. 13, 2018).
2 Dean Reynolds, Overdose now leading cause of death of Americans under 50,
CBS NEWS (June 6, 2017, 8:00 PM), https://www.cbsnews.com/news/

overdoses-are-leading-cause-of-death-americans-under-50/; Accidental
Overdose: The Leading Cause of Death Under 50, FREEDOM CENTER,
https://www.thefreedomcenter.com/accidental-overdose-the-leading-cause-of-
death-under-50/#:~:text=According%20to%20the%20latest%20data,death%20
among%20the%20overall%20population (updated Dec. 2, 2021).
3 Drug Overdose Deaths Remain High, CTRS. FOR DISEASE CONTROL &
PREVENTION, https://www.cdc.gov/drugoverdose/deaths/index.html (last

visited Jan. 31, 2022) (“Opioids were involved in 49,860 overdose deaths in
2019”); Provisional Drug Overdose Death Counts, CTRS. FOR DISEASE
CONTROL & PREVENTION, https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-
data.htm (last visited Jan. 31, 2022) (reporting 69,061 opioid overdoses as of
December 2020).

many Americans who died from opioid overdose in 1999 4 and the
death toll from 2021 is expected to be much worse. 5
The opioid epidemic is particularly acute for military veterans and
those leaving jails and prisons. As VA Secretary Robert Wilkie
remarked in 2019, “[v]eterans are twice as likely to die from
accidental overdose compared to the general U.S. population.” 6
Recently released prisoners are about 129 times more likely to die of
an opioid overdose than the rest of the population, largely because
their drug tolerances dropped while incarcerated. 7
Despite the Department of Justice’s (Department) notable
enforcement and prevention efforts, with opioid seizures increasing
and opioid prescription rates falling, 8 overdose death rates are at an
4 Betsy McKay, U.S. Drug-Overdose Deaths Soared Nearly 30% in 2020,
Driven by Synthetic Opioids, WALL ST. J. (July 14, 2021, 3:56 PM),
https://www.wsj.com/articles/u-s-drug-overdose-deaths-soared-nearly-30-in-
2020-11626271200; Claire Felter, U.S. Opioid Epidemic, COUNCIL ON
FOREIGN REL. (Sept. 8, 2021, 3:20 PM),
https://www.cfr.org/backgrounder/us-opioid-epidemic;
The Drug Overdose Epidemic: Behind the Numbers, CTRS. FOR DISEASE
CONTROL & PREVENTION, https://www.cdc.gov/opioids/data/
index.html (updated Mar. 25, 2021).
5 According to the most recent Centers for Disease Control and Prevention
estimates, 75,673 Americans died of opioid overdose in the twelve months

ending in April 2021, up nearly 35% from the previous twelve months and an
all-time record high. Drug Overdose Deaths in the U.S. Top 100,000
Annually, CTRS. FOR DISEASE CONTROL & PREVENTION,
https://www.cdc.gov/nchs/pressroom/nchs_press_releases/2021/20211117.htm.
6 Press Release, Dep’t of Veterans Affs., VA equips 200,000 Veterans with
lifesaving naloxone (Nov. 5, 2019); see also Amy S.B. Bohnert et al.,
Accidental Poisoning Mortality Among Patients in the Department of Veterans
Affairs Health System, 49 MED. CARE 393 (2011).
7 Ingrid A. Binswanger et al., Release from Prison—A High Risk of Death for
Former Inmates, 356 NEW EngLAND J. Med. no. 2, 157, 164 (2007); Sarah E.
Wakeman, Why It’s Inappropriate Not to Treat Incarcerated Patients with
Opioid Agonist Therapy, 19 AMA J. ETHICS, no. 9, 922, 923 (2017). See also
MASS. DEP’T OF PUB. HEALTH, AN ASSESSMENT OF FATAL AND NONFATAL
OPIOID OVERDOSES IN MASSACHUSETTS (2011–2015) 9 (2017) (describing a 120
times higher rate for formerly incarcerated).
8 See U.S. Opioid Dispensing Rate Maps, CTRS. FOR DISEASE CONTROL AND
PREVENTION, https://www.cdc.gov/drugoverdose/rxrate-maps/index.html
(updated Nov. 10, 2021); Christopher Brown, DOJ Keeps Up Pressure on
Doctors Who Prescribe Opioids Illegally, BLOOMBERG LAW (Jan. 24, 2020, 3:52
p.m.), https://news.bloomberglaw.com/health-law-and-business/doj-keeps-up-
pressure-on-doctors-who-prescribe-opioids-illegally.

all-time high. 9 Heroin and fentanyl supply also remains robust across
the nation, according to the Drug Enforcement Administration’s
(DEA) National Threat Assessments for 2018, 2019, and 2020. 10
Our civil rights outreach and enforcement experience in Louisiana
and Massachusetts illustrates that the Department has another
powerful enforcement tool to address the opioid crisis: helping jails
and prisons satisfy their obligations under the Americans with
Disabilities Act (ADA) by providing all medications used to treat
Opioid Use Disorder (OUD). These medications dramatically reduce
opioid overdose deaths and expanded medical access is consistent with
the third prong of the Department’s opioid strategy—ensuring access
to treatment. 11 Assistant U.S. Attorneys can, as we did in Louisiana
and Massachusetts, coordinate with the Disability Rights Section’s
U.S. Attorney Program for ADA Enforcement to open compliance
reviews of the jails and prisons in their districts and then work with
those entities to meet their ADA obligations by providing these
medications within a reasonable timeframe.
The data are clear: When jails and prisons meet their ADA
obligations by providing all forms of FDA-approved Medications for
Opioid Use Disorder (MOUD), which includes methadone,
buprenorphine, and naltrexone, there is a dramatic reduction in fatal
opioid overdoses. Policies and practices that deny insulin to an inmate
with diabetes are bad public health policy and would likely be a per se
ADA violation within the Department’s enforcement jurisdiction, yet
the vast majority of the nation’s jails and prisons ban the provision of
lifesaving, FDA-approved, and doctor-prescribed drug treatment to
9 See Ahmad FB et al., Provisional Drug Overdose Death Counts, NAT’L CTR.
FOR HEALTH STATS., CTRS. FOR DISEASE CONTROL AND PREVENTION,
https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm (Oct. 13, 2021).
10 U.S. DRUG ENF’T ADMIN., 2020 NATIONAL DRUG THREAT ASSESSMENT 8
(2021) (“Heroin availability remains high in the United States . . . . ”); U.S.
DRUG ENF’T ADMIN., 2019 NATIONAL DRUG THREAT ASSESSMENT 5 (2019)
(“Heroin-related overdose deaths remain at high levels in the United States,
due to continued use and availability, while fentanyl is increasingly
prevalent in highly profitable white powder heroin markets.”); U.S. DRUG
ENF’T ADMIN., 2018 NATIONAL DRUG THREAT ASSESSMENT 11 (2018) (“The use
of heroin has grown at an alarming rate and the death toll increases each
year.”).
11 See Press Release, Dep’t of Just., Department of Justice Releases Strategy
Memo to Address Prescription Opioid and Heroin Epidemic (Sept. 24, 2016).

those struggling with Opioid Use Disorder. 12 Such MOUD restrictions
violate the ADA and prevent hundreds of thousands of inmates each
year from receiving medical treatment they are entitled to. Our
experiences suggest that enforcement of the ADA to ensure expanded
MOUD access in the nation’s jails and prisons would thus address a
critical metric: Fewer people dying from opioid overdoses.
II. MOUD reduces overdose deaths and

criminal recidivism rates
OUD is a chronic brain disease defined by compulsive and prolonged
opioid use for no legitimate medical purpose despite negative
consequences, but which doctors can effectively treat through
medication. Historically, addiction was stigmatized as a problem of
willpower, not a medical condition, and the notion of drug treatment
carries this legacy. This distinction creates confusion when people
refer to addiction treatment because, colloquially, addiction treatment
could refer to anything from dolphin-assisted therapy 13 to using
evidence-based doctor-prescribed medications. Treatment could also
refer to participation in various 12-step groups, such as Narcotics
Anonymous. Twelve-step groups, while anecdotally helpful for some,
12 See SHELLY WEIZMAN ET AL., O’NEIL INST. FOR NAT’L & GLOB. HEALTH L., A
NATIONAL SNAPSHOT: ACCESS TO MEDICATIONS FOR OPIOID USE DISORDER IN
U.S. JAILS AND PRISONS (2021); Christine Vestal, New Momentum for
Addiction Treatment Behind Bars, PEW (Apr. 4, 2018),
https://www.pewtrusts.org/en/research-and-
analysis/blogs/stateline/2018/04/04/new-momentum-for-addiction-treatment-
behind-bars (“Fewer than 1 percent of the more than 5,000 U.S. prisons and
jails, housing more than 2 million inmates, allow access to the FDA-approved
medication, even though medical societies, addiction experts and correctional
health organizations support their use.”).
13 Kaleigh Rogers, Can Swimming with Dolphins Really Cure Your Meth
Addiction?, VICE (Nov. 19, 2014, 5:00 a.m.), https://www.vice.com/en/article/

4x3q9g/can-swimming-with-dolphins-really-cure-your-meth-addiction.

are neither evidence-based treatment 14 nor medical in nature. 15 The
use of MOUD, though, is FDA-approved and both medical and
evidence based. Treatment with methadone and buprenorphine, 16
demonstrated in multiple studies, reduces the chance of overdose
death by 50%. 17 The takeaway is that not all “treatment” creates an
apples-to-apples comparison.
This distinction between medical treatment and colloquial
“treatment” when talking about addiction is legally important when it
comes to enforcing the ADA. Addictions such as OUD are often
considered disabilities under the ADA. 18 Because medical treatment
14 While recognized for being helpful for those who attend voluntarily, the
peer support group format of Narcotics Anonymous does not fit a clinical
standard for “treatment” as defined by the American Psychological
Association, the American Society for Addiction Medicine, and the American
Academy of Addiction Psychiatry. Press Release, Am. Psychiatric Assoc.,
Joint Public Policy Statement on Relationship Between Treatment and
Mutual Support (2019). See also Annette Mendola & Richard L. Gibson,
Addiction, 12-step Programs, and Evidentiary Standards for Ethically and
Clinically Sound Treatment Recommendations: What Should Clinicians Do?,
18 AM. MED. ASSOC. J. ETHICS, no. 6, 646 (2016).
15 Specifically, Narcotics Anonymous is a spiritual program rather than a
medical program. NARCOTICS ANONYMOUS WORLD SERVS., INC., NARCOTICS

ANONYMOUS xxvi (6th ed. 2008) (“Our program is a set of spiritual principles
through which we are recovering from a seemingly hopeless state of mind
and body.”).
16 Buprenorphine is often more recognized by the name Suboxone, which is
the brand name for a medication that includes a combination of

buprenorphine and naloxone.
17 COMM. ON MEDICATION-ASSISTED TREATMENT FOR OPIOID USE DISORDER,
MEDICATIONS FOR OPIOID USE DISORDER SAVE LIVES 6 (Alan I. Leshner &
Michelle Mancher eds. 2019).
18 Establishing a disability under the ADA requires showing a physical or
mental impairment that substantially limits a major life activity, a record of

such impairment, or being regarded as having such an impairment. 28 C.F.R.
§ 35.108(a)(1). In enacting the ADA Amendments Act in 2008, Congress
made clear that ADA jurisprudence should focus less on establishment of
disability and more on whether entities were taking steps to avoid
discrimination.
28 C.F.R. § 35.101(b). To ensure this breadth of coverage, additional major
life activities, including operation of major bodily functions, were added to
the mix. 28 C.F.R. § 35.108(c)(1)(ii). Given OUD’s recognition within the
DSM-V as a chronic brain disease, this expansive definition makes it
relatively easy to establish disability based on OUD. This analysis was put
most succinctly in the appendix to Title II of the ADA: “Addiction is a

for a disability is so inherently tied to the disability, courts have ruled
that there is little distinction between barriers on a disability and
barriers placed on medications used to treat that disability. 19
Therefore, when an inmate requires a medication, such as
buprenorphine, to treat OUD, the ADA protects against bans on
access to that medication.
MOUD reduces overdose deaths and drug use, improves drug
treatment results, 20 and lowers criminal recidivism rates. 21 Rhode
Island, for example, saw a 12.3% decrease in overdose deaths just one
year after implementing a MOUD screening and treatment program
disability.” 28 C.F.R. app. B § 35.131. The ADA does have a carve out for
those individuals currently engaged in the illegal use of drugs. Specifically,
when engaged in such use, those individuals lose their ADA protections. 28
C.F.R. § 35.131(a)(1). There is a notable exception that is relevant to this
article. Public entities shall not deny health services, or services provided
regarding drug rehabilitation, to individuals based on that individual’s illegal
use of drugs if the individual is otherwise entitled to such services. 28 C.F.R.
§ 35.131(b)(1). This would likely apply to jails and prisons and their provision
of medications, including MOUD. Thus, if an individual were prescribed
buprenorphine but had recently used illicit drugs, such as illegal
benzodiazepines, the prison would not be able to withhold that person’s
buprenorphine based on such current illegal use. Likewise, medical
providers, such as hospitals and skilled nursing facilities, would also likely
violate the ADA by refusing to provide health services to individuals who
recently used illegal drugs and are otherwise entitled to such services, unless
there is a showing that each individual is a direct threat to the health or
safety of others, not themselves. 28 C.F.R. § 36.209(b)(1).
19 Doe v. Deer Mountain Day Camp, Inc., 682 F. Supp. 2d 324 (S.D.N.Y.
2010); United States v. Asare, No. 15 Civ. 3556, 2018 WL 2465378, at *6

(S.D.N.Y. June 1, 2018).
20 Natasa Gisev et al., A cost-effectiveness analysis of opioid substitution
therapy upon prison release in reducing mortality among people with a

history of opioid dependence, 110 ADDICTION 1975, 1981–82 (2015); NAT’L
INST. ON DRUG ABUSE, EFFECTIVE TREATMENTS FOR OPIOID ADDICTION (2016);
COMM. ON MEDICATION-ASSISTED TREATMENT FOR OPIOID USE DISORDER,
supra note 17.
21 Elizabeth A. Evans, et al., Recidivism and mortality after in-jail
buprenorphine treatment for opioid use disorder, PUBMED (Jan. 18, 2022),
https://pubmed.ncbi.nlm.nih.gov/35063323/. Sarah E. Wakeman & Josiah D.
Rich, Addiction Treatment Within U.S. Correctional Facilities: Bridging the
Gap Between Current Practice and Evidence-Based Care, 34 J. ADDICTIVE
DISEASES 220 (2015); NAT’L SHERIFFS’ ASSOC. & NAT’L COMM’N ON CORR.
HEALTH CARE, JAIL-BASED MEDICATION-ASSISTED TREATMENT: PROMISING
PRACTICES, GUIDELINES, AND RESOURCES 5 (2018).

at its state prison. 22 Opioid overdose deaths in France dropped 79% in
four years after the country authorized any doctor to prescribe
buprenorphine, an opioid addiction medication. 23 In Baltimore, annual
heroin overdose deaths decreased by 37% after buprenorphine became
available in the city in 2003. 24 Preliminary data in Maine shows that
“[p]eople were 60% less likely to die of an overdose in their first year
out of prison if they” received MOUD while incarcerated. 25 And the
risk of mortality of those with OUD is two to three times lower when
on methadone or buprenorphine. 26
Ensuring access to all forms of MOUD is thus a vital tool in the
Department’s fight against the opioid epidemic. Methadone is a
synthetic opioid agonist, binding to and activating the opioid receptors
in the brain—the same receptors that other opioids, such as heroin,
morphine, and opioid pain medications trigger. This eliminates
withdrawal symptoms and relieves opioid cravings. Although
methadone occupies and activates these opioid receptors, it does so
slower than other opioids, and for an opioid-dependent person, the
22 Traci C. Green et al., Postincarceration Fatal Overdoses After

Implementing Medications for Addiction Treatment in a Statewide
Correctional System, 75 JAMA PSYCHIATRY 405, 405–06 (2018) (“Statewide in
Rhode Island, there were 179 overdose deaths from January 1, 2016, to June
30, 2016, compared with 157 overdose deaths during the same period in 2017,
a reduction of 12.3%.”).
23 Olga Khazan, How France Cut Heroin Overdoses by 79 Percent in 4 Years,
THE ATLANTIC (Apr. 16, 2018), https://www.theatlantic.com/health/archive/

2018/04/how-france-reduced-heroin-overdoses-by-79-in-four-years/558023/.
24 Robert P. Schwartz et al., Opioid Agonist Treatments and Heroin Overdose
Deaths in Baltimore, Maryland, 1995–2009, 103 AM. J. PUB. HEALTH no. 5,

917, 919 (2013) (“Average annual heroin overdose deaths decreased by 37%
after buprenorphine became available in 2003 (average number of heroin
overdose deaths between 1995 and 2002 of 262 vs 165 between 2003 and
2009).”).
25 Beth Schwartzapfel, These Meds Prevent Overdoses. Few Federal Prisoners
Are Getting Them, THE MARSHALL PROJECT (Aug. 10, 2021), https://www.
themarshallproject.org/2021/08/10/these-meds-prevent-overdoses-few-federal-
prisoners-are-getting-them.
26 Wakeman, supra note 7, at 923; see also Luis Sordo et al., Mortality risk
during and after opioid substitution treatment: systematic review and meta-
analysis of cohort studies, 357 BJM 1550, 1550 (2017).

treatment doses do not produce euphoria. 27 Buprenorphine is a partial
agonist, partially activating and partially blocking the opiate
receptors in the brain, thereby reducing the compulsive cravings that
are a hallmark of addiction and making it difficult to get high or
overdose from other opioids. “Decades of research show that [these
two medicines] reduce drug use, overdose, death, crime, and risky
behavior like sharing needles.” 28 Naltrexone is an opioid antagonist,
blocking the opiate receptors and preventing the patient from getting
high or overdosing.
These medications are not interchangeable. 29 One version of MOUD
might work well for one patient but not another. This is why the ADA
requires ensuring access to all three forms of MOUD in the criminal
justice system. 30
III. The Department’s three-pronged

strategy to address the opioid crisis:
enforcement, prevention, and
treatment
Since 2016, the Department’s efforts to address this epidemic have
had three focal points: enforcement, prevention, and treatment. 31
These three elements have been incorporated in the opioid crisis
strategy of every subsequent attorney general since Attorney General
Loretta Lynch. 32
Most U.S. Attorney’s Offices are familiar with the Department’s first
two approaches to the opioid crisis: Enforcement and prevention.
27 RICHARD P. MATTICK ET AL., METHADONE MAINTENANCE THERAPY VERSUS NO

OPIOID REPLACEMENT THERAPY FOR OPIOID DEPENDENCE (REVIEW), COCHRANE
DATABASE OF SYS. REVS. 2 (2009).
28 Schwartzapfel, supra note 25.
29 Pesce v. Coppinger, 355 F. Supp. 3d 35, 48 (D. Mass. 2018) (holding that a
jail’s ban on methadone violated the ADA, in part, because “Vivitrol® and
methadone are not interchangeable treatments for opioid use disorder.”).
30 See SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., TIP 63:
MEDICATIONS FOR OPIOID USE DISORDER 3-10 (2021).

31 See Press Release, Dep’t of Just., supra note 11.
32 See Press Release, U.S. Dep’t of Just., Remarks by Attorney General
Sessions to Law Enforcement About the Opioid Epidemic (Sept. 22, 2017);
Press Release, U.S. Dep’t of Just., Department of Justice Announces More
Than $341 Million in Grants to Combat America’s Addiction Crisis (Oct. 16,
2020).

Prosecutions in opioid-related crimes are consistent and frequent, and
heroin- and fentanyl-related arrests are measured in both the
kilograms of drugs taken off the streets and the potential number of
people killed by those drugs. Prosecution of opioid prescription
practices, both criminally and civilly, have also had a notable impact.
In 2020, opioid prescription rates were at the lowest since the Centers
for Disease Control and Prevention began tracking them in 2006. 33 By
December 2020, prescriptions for the seven most frequently diverted
opioids were down 33% since January 2017. 34 Prosecutions of doctors
for illegal opioid distribution by the Department’s Health Care Fraud
Unit increased from 2 cases in 2016 to 56 in 2019. 35
Though the Department’s enforcement and prevention efforts have
been notable, these two strategies alone will not solve this public
health crisis. As the DEA made clear in its 2019 Threat Assessment,
“[h]eroin-related overdose deaths remain at high levels in the United
States, due to continued use and availability.” 36
In jurisdictions such as Louisiana and Massachusetts, the
Department has been utilizing the third approach by enforcing ADA
obligations to ensure MOUD access in jails and prisons. 37 The
Department is the designated agency responsible for enforcing ADA
obligations for all programs, services, and regulatory activities related
to law enforcement and public safety, including corrections. 38 Our
experiences in Louisiana and Massachusetts suggest that outreach to
local jails and prisons and ADA enforcement can eliminate
discriminatory barriers to addiction treatment. These MOUD bans are
at the heart of the opioid crisis, and the ADA is a powerful tool that
the Department can use to further its efforts to ensure access to
addiction treatment—the third prong of the Department’s opioid
strategy.
33 See U.S. Opioid Dispensing Rate Maps, supra note 8.

34 Press Release, U.S. Dep’t of Just., Deputy Assistant Attorney General
Daniel Feith Delivers Remarks at the FDLI Enforcement, Litigation, and
Compliance Conference (Dec. 15, 2020).
35 Brown, supra note 8.
36 2019 NATIONAL DRUG THREAT ASSESSMENT, supra note 10, at 5.
37 The department has resolved investigations of the Worcester County
Sheriff, the Suffolk County Sheriff, the Essex County Sheriff, and the
Massachusetts Department of Corrections, all in Massachusetts.
38 See 28 C.F.R. § 35.190(b)(6).

IV. Jails and prisons are epicenters of the
opioid crisis, and the ADA requires
them to provide MOUD
Recently released prisoners have been shown to be up to 129 times
more likely to die from an opioid overdose than the general
population. 39 In Massachusetts, for example, nearly 1 in 11 overdose
deaths between 2011 and 2015 involved a person who was formerly
incarcerated. 40 Since then, the opioid crisis has worsened, and the rate
of overdose deaths for those leaving jail and prisons is believed to be
even higher. 41
The emerging caselaw demonstrates the viability of the ADA to
ensure access to all three forms of MOUD in the criminal justice
system. In November 2018, for example, a federal district court in
Massachusetts held, in Pesce v. Coppinger, that a jail’s ban on
methadone violated the ADA because there was no individualized
inquiry into a single prisoner’s specific MOUD needs, and such an
individualized inquiry was required by the ADA. 42 The legal reasoning
and applicability of the ADA is relatively straightforward: Jails and
prisons provide medical care, including medications, for those in
custody. Medical personnel in these facilities make medical decisions
as to what forms of medication should be used for treatment. When a
correctional facility, such as in Pesce v. Coppinger, withholds a
particular form of medication for administrative reasons rather than
medical reasons, and when this facility also fails to assess when any
prisoner’s disability requires a deviation from such an administrative
policy, that prisoner receives disparate treatment based on disability.
The prison is treating OUD differently than other medical conditions
and, thus, violating the ADA.
Shortly after Pesce, in March 2019, a federal district court in Maine
considered a similar case and came to the same conclusion. 43 In Smith
39 MASS. DEP’T OF PUB. HEALTH, supra note 7, at 50.

40 Id. at 51.
41 See id. at 50–51.
42 Pesce v. Coppinger, 355 F. Supp. 3d 35, 46 (D. Mass. 2018) (citing Kiman v.
N.H. Dep’t of Corr., 451 F.3d 274 (1st Cir. 2006)) (“Medical decisions that rest
on stereotypes about the disabled rather than ‘an individualized inquiry into
the patient's condition’ may be considered discriminatory.”).
43 Smith v. Aroostook Cnty., 376 F. Supp. 3d. 146, 159–60 (D. Me. 2019) (“The
Defendants’ out-of-hand, unjustified denial of the Plaintiff's request for her

v. Aroonstook County, the district court held that the Aroostook
County Jail’s refusal to provide Brenda Smith, a mother of four
children, with her doctor-prescribed buprenorphine violated the ADA
because this treatment ban was based on stigma and stereotypes. 44
During the previous 10 years on buprenorphine, Ms. “Smith ha[d]
regained custody of her . . . children, secured stable housing for her
family, and obtained employment.” 45 The court granted her motion for
a preliminary injunction and ordered the jail to provide MOUD.
In the short time since both Pesce and Smith, jails and prisons in
Louisiana, Massachusetts, and elsewhere, likely seeing the trajectory
of litigation liability as well as the public health benefits of expanded
MOUD access, have begun to shift their practices. 46 Based on our
experiences, these rulings make outreach much easier.
In addition, there is increasing support from law enforcement to
vastly expand MOUD access in the criminal justice system, and the
Bureau of Prisons (BOP), as of at least August 2020, started offering
all three forms of MOUD to individuals in its care. 47 Despite this
emerging consensus, the bans on MOUD in correctional facilities is
still a nationwide issue. As of 2018, less than 1% of the 5,000 jails and
prisons in the country provided inmates with MOUD. 48 At least a
quarter of the two million people incarcerated then were addicted to
prescribed, necessary medication—and the general practice that precipitated

that denial—is so unreasonable as to raise an inference that the Defendants
denied the Plaintiff's request because of her disability.”).
44 Id. at 160 (“The Defendants’ representatives lacked a baseline awareness
of what opioid use disorder was despite serving a population that

disproportionately dies of that condition. . . . The Defendants' statements and
actions suggest the kind of ‘apathetic attitude’ towards individuals with
disabilities that the ADA intends to remedy. The Defendants’ conduct is
consistent with the broader stigma against MAT.”) (internal citation
omitted).
45 Id. at 149.
46 “In 2018, the National Sheriffs’ Association published a resource guide
arguing that more jails should provide access to buprenorphine and

methadone. Hundreds of jails now do so—still a fraction of the nation’s 3,000
jails, but up dramatically from about 30 just two years ago.” Schwartzapfel,
supra note 25.
47 Memorandum from Jeffrey A. Burkett, Acting Senior Dep. Assistant Dir.,
Health Servs. Div., Dep’t of Just., to Clinical Dirs. Health Servs. Adm’rs,
Medication Assisted Treatment (MAT) Interim Technical Guidance (Aug. 26,
2020).
48 Vestal, supra note 12.

opioids. 49 That means roughly 500,000 people who could have
benefited from MOUD or who were already receiving MOUD were
denied this treatment. 50 Since 2018, the MOUD landscape has shifted
slightly, and more facilities are providing all three forms of MOUD;
however, the number of jails and prisons is still a tiny fraction of the
more than 5,000 facilities that are required by the ADA to do so. 51
V. Barriers to MOUD access: stereotypes

and diversion concerns
The chief barriers to expanding MOUD access, including bans on
MOUD treatment in correctional facilities, are often based on
misguided stereotypes and stigmas 52 about the treatment and
diversion concerns. 53 Rooting out such unfounded fears is at the heart
of the ADA and a key part of ADA jurisprudence. 54 Because
buprenorphine and methadone, the two forms of MOUD seen as most
effective to treat OUD, are themselves opioids, many law enforcement
officers erroneously believe that MOUD substitutes one drug
addiction for another and is a hinderance to recovery. This is
incorrect. According to the Substance Abuse and Mental Health
Service Administration, MOUD “does not replace one addictive drug
with another. It provides a safe, controlled level of medication to
overcome the use of a problem opioid.” 55
49 Id.
50 See Wakeman, supra note 7, at 923 (“a 2004 study estimated that 440,000
people with opioid use disorder are detained in jails annually”).
51 See WEIZMAN et al., supra note 12.
52 COMM. ON MEDICATION-ASSISTED TREATMENT FOR OPIOID USE DISORDER,
supra note 17, at 112–13.

53 Christine Vestal, At Rikers Island, a Legacy of Medication-Assisted Opioid
Treatment, PEW (May 23, 2016), https://www.pewtrusts.org/en/research-and-

analysis/blogs/stateline/2016/05/23/at-rikers-island-a-legacy-of-medication-
assisted-opioid-treatment; Wakeman, supra note 7, at 922–23.
54 See 28 C.F.R. § 35.130(h) (“A public entity may impose legitimate safety
requirements necessary for the safe operation of its services, programs, or

activities. However, the public entity must ensure that its safety
requirements are based on actual risks, not on mere speculation, stereotypes,
or generalizations about individuals with disabilities”) (emphasis added).
55 DEP’T OF HEALTH AND HUMAN SERVS., THE FACTS ABOUT NALTREXONE FOR
TREATMENT OF OPIOID ADDICTION 10 (2009). Congress established SAMHSA,

the Substance Abuse and Mental Health Services Administration, in 1992 to
make substance use and mental disorder information, research, and services

This stereotype also ignores that people who are in treatment and
are prescribed the medication are not addicted to it. While they may
be dependent on a medication, they are not compulsively seeking to
use that medication despite negative consequences. They can lead
normal lives and hold down jobs. Equating the prescription use of
MOUD with an addiction overlooks the fact that most chronic diseases
require long-term use of medication. While those with high blood
pressure are dependent on their beta-blocker medication, they are not
addicted. The same holds true for MOUD.
A second barrier to MOUD access in correctional facilities is
diversion concerns. Correctional officers often fear that allowing
prisoners access to legitimately prescribed buprenorphine will result
in the medicine being diverted to others. Through outreach with
correctional facilities that provide MOUD, such as in Rhode Island, in
more accessible. SAMSHA is not alone in its view that MOUD does not
substitute one addictive drug for another. See, e.g., NAT’L INST. ON DRUG
ABUSE, supra note 20 (stating that “[m]ethadone and buprenorphine DO
NOT substitute one addiction for another” and “[w]hen someone is treated for
an opioid addiction, the dosage of medication used does not get them high–it
helps reduce opioid cravings and withdrawal.”); DEP’T OF HEALTH & HUM.
SERVS., THE OPIOID EPIDEMIC: BY THE NUMBERS 2 (2016) (stating that MOUD
“is a proven, effective treatment for individuals with an opioid use disorder”
and “has been shown to increase treatment retention, and to reduce opioid
use, risk behaviors that transmit HIV and hepatitis C virus, recidivism, and
mortality.”); Andrew Kolodny & Thomas R. Frieden, Ten Steps the Federal
Government Should Take Now to Reverse the Opioid Addiction Epidemic, 318
JAMA, no. 16, 2017, at 1538 (arguing that MOUD “should be routinely
offered in primary care, emergency departments, and hospital inpatient
services to increase treatment uptake, as well as in the criminal justice
system, with careful attention to continuity on discharge.”); NAT’L SHERIFFS’
ASSOC. & NAT’L COMM’N ON CORR. HEALTH CARE, supra note 21, at 6
(“Medication-assisted treatment (MAT)—utilizing the FDA-approved
medications methadone, buprenorphine, or naltrexone—is considered a
central component of the contemporary standard of care for the treatment of
individuals with opioid use disorders.”); Memorandum from Loretta E.
Lynch, U.S. Att’y Gen., to Heads of Dep’t Components, Department of Justice
Strategy to Combat Opioid Epidemic 8 (Sept. 21, 2016) (stating that MOUD
“plays an essential role in successful treatment and provides a foundation for
recovery” and “[c]riminal justice programs should incorporate [MOUD]
treatment options for individuals prior to, during, after, or in lieu of
incarceration.”).

Philadelphia, and at Rikers’ Island in New York City, we have learned
that this concern has not born out. On the contrary, because much of
the demand for illicit buprenorphine is driven by the lack of access to
legitimately prescribed buprenorphine, once jails and prisons began to
provide this treatment, buprenorphine diversion fell. In short, the
market for illicit diversion in correctional facilities went away because
people were actually engaged in treatment.
From our experience, when correctional officers in Louisiana and
Massachusetts hear from their counterparts at facilities where MOUD
is provided, these diversion concerns are greatly reduced. The new
BOP guidance on providing MOUD is also helpful in addressing these
worries. 56 This is why ADA outreach is so helpful in building support
for MOUD access in jails and prisons.
VI. MOUD outreach and enforcement is

effective: Law enforcement officials are
open to expanding treatment access
and are often unaware that the ADA
applies
Our outreach and enforcement efforts in Louisiana and
Massachusetts suggest that eliminating these discriminatory barriers
to MOUD access can be overcome after law enforcement officers speak
with correctional health officials who provide such treatment and
after hearing from the Department about the applicability of the ADA
to MOUD access in jails and prisons. Both are tools that the
Department typically uses in ADA enforcement work. Sheriffs, judges,
correctional officers, and elected officials in Louisiana and
Massachusetts have been open to new ideas about tackling an opioid
crisis ravaging their communities. They welcome the Department’s
insight on the applicability of the ADA and support for providing
MOUD. In addition, many were unaware that the ADA applies in this
context and revisited their reluctance to MOUD after hearing about a
potential civil rights investigation and litigation risk.
For example, after attending a conference the U.S. Attorney’s Office
(USAO) for the Eastern District of Louisiana hosted on MOUD access
and the ADA, and after a few follow-up meetings, the Sheriff of
Orleans Parish said the Parish is planning to provide MOUD to
56 Memorandum from Jeffrey A. Burkett, supra note 47.

inmates in New Orleans’s jail. This USAO also conducted outreach
with Sheriff Craig Webre of Lafourche Parish in Louisiana, including
a conversation with healthcare providers with experience in providing
MOUD in correctional facilities. Lafourche Parish is now providing
MOUD to all inmates who were on this treatment before being
incarcerated and all who have been prescribed MOUD while
incarcerated in the Parish. Sheriff Webre is also interested in
participating in studies or pilot programs to evaluate the efficacy of
this treatment, adding that he is willing to talk with and encourage
other sheriffs or wardens to provide MOUD in their jails and
prisons. 57 Both sheriffs were initially unaware that the ADA covered
MOUD access in their jails.
Similarly, in Massachusetts, after opening a compliance review, the
USAO entered into an out-of-court agreement with the Worcester
County Sheriff that provides for a reasonable amount of time for the
Sheriff’s healthcare vendor to build the capacity to provide all forms of
MOUD to incarcerated persons. In addition to the settlement with
Worcester, the USAO in Massachusetts has worked with other county
facilities as well as the state Department of Correction to ensure ADA
compliance related to MOUD. Whereas, in 2017, these medications
were only found in one facility in Massachusetts, all corrections
facilities in the state now either provide the medications or are
waiting on regulatory approval to provide the medications.
VII. Conclusion
MOUD saves lives, but the people who need it most—those with a
history of OUD and who are in jails and prisons—are routinely denied
this treatment in violation of their civil rights. These prisoners, of
which there are hundreds of thousands across the country, leave jail
and prison at a dangerous risk of overdose death—129 times more
likely than the average person to die from an overdose. 58 The
Louisiana and Massachusetts model for increasing access to MOUD
57 Sheriff Webre added that “the burdens, costs and challenges of addiction
and mental illness have fallen upon the shoulders of law enforcement, jails
and prisons, and that public safety would be enhanced, with a corresponding
reduction in recidivism and victimization, by prioritizing intervention and
treatment before and then when a person enters the criminal justice system.”
Telephone interview with Craig Webre, Sheriff, Lafourche Parish (Sept. 15,
2021).
58 Wakeman, supra note 7, at 923.

treatment in correctional facilities through outreach and enforcement
works. These methods show how USAOs can reduce overdose deaths
in their districts by using the Department’s authority to enforce the
ADA to ensure access to treatment in correctional settings.
About the Authors
David Howard Sinkman is an Assistant U.S. Attorney in the
Eastern District of Louisiana, serving as the office’s Opioid
Coordinator. Much of his practice focuses on the prosecution of heroin
traffickers and the illegal distribution of prescription opioids, as well
as using civil rights statutes to address the opioid crisis. Sinkman
earned a J.D. from Georgetown University Law Center, an M.Sc. from
the London School of Economics, and a B.A. from the University of
Michigan. Before joining the Department, Sinkman clerked on the
U.S. Court of Appeals for the Second Circuit, the U.S. District Court
for the Southern District of New York, and the Supreme Court of
Israel.
Gregory Dorchak is an Assistant U.S. Attorney in the District of
Massachusetts’s Civil Rights Unit. He has worked there since 2015,
and much of his practice focuses on using civil rights statutes to
address the opioid crisis. Dorchak earned a J.D. from Northeastern
University School of Law and a Ph.D. from the University of
Massachusetts, Amherst.

HIV Discrimination Under the
ADA—A Case Study
Lara K. Eshkenazi
Deputy Chief, Civil Division
Southern District of New York
I. Introduction
Dr. Emmanuel Asare is a plastic surgeon and owner and operator of
Advanced Cosmetic Surgery (Advanced Cosmetic), who specializes in
gynecomastia surgery—a surgery targeted to remove fat deposits from
a man’s chest. Dr. Asare, however, refused to perform surgery on
patients who were living with HIV or who he perceived were living
with HIV. Indeed, from May to July 2014, Dr. Asare turned away
three patients for this reason. Dr. Asare also performed HIV tests on
two of the three individuals without their knowledge or consent and
informed one of them—incorrectly—that he was HIV positive. After
receiving a complaint from one of the three victims, the U.S. Attorney
for the Southern District of New York investigated the case, filed a
complaint, and ultimately, prevailed at a bench trial, after which the
court held that Dr. Asare and Advanced Cosmetic violated Title III of
the Americans with Disabilities Act (ADA). The court awarded
substantial damages for each victim, in addition to civil penalties and
injunctive relief. 1
While every case is unique, the focus of this article is to use this case
to provide guidance on possible strategies for proving liability and
damages in cases involving medical providers discriminating against
individuals living with HIV or perceived to be living with HIV and on
obtaining broad injunctive relief to prevent future discrimination.
II. Case background

A. Proving discrimination under the ADA based on
denial of medical treatment
Title III of the ADA provides that “[n]o individual shall be
discriminated against on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or
1 United States v. Asare (Asare I), 476 F. Supp. 3d 20, 26–42 (S.D.N.Y. 2020).

accommodations of any place of public accommodation.” 2 To establish
a violation of the ADA, the government must establish that (1) the
individual denied services is “disabled within the meaning of the
ADA,”(2) the defendant is subject to the ADA, and “(3) that the
defendant[] discriminated against the [individual] within the meaning
of the ADA.” 3 Pursuant to its enforcement obligations under the ADA,
the government, unlike private individuals, may seek monetary
damages on behalf of any victims of discrimination, in addition to civil
penalties and injunctive relief. 4
B. The victims
There were three victims in this case, each of whom gave detailed
testimony about their interactions with Dr. Asare and the emotional
impact of Dr. Asare’s discriminatory conduct. Two of those victims
were living with HIV, and Dr. Asare incorrectly perceived the third to
be living with HIV.
1. Mark Milano
Mark Milano is a “HIV educator, writer, and editor at a research
organization focused on HIV/AIDS.” 5 Mr. Milano was originally
diagnosed with AIDS in 1982. 6 “Starting in 2008, [Mr.] Milano began
developing fat deposits in his chest,” a condition known as
gynecomastia. 7 After some research and referrals, Mr. Milano
scheduled an appointment at Advanced Cosmetic. 8
On July 14, 2014, Mr. Milano attended an initial consultation with
Dr. Emmanuel Asare at Advanced Cosmetic. During the consultation,
Mr. Milano asked whether an HIV medication that he had taken in
the past could have caused or contributed to the gynecomastia. Upon
hearing the mention of a HIV medication, Dr. Asare told Mr. Milano
that it was his office’s “policy to never perform any procedures on any
patients with Human Immunodeficiency Virus.” 9 Mr. Milano
responded by telling Dr. Asare that such a policy was illegal.
2 Americans with Disabilities Act of 1990 § 302, 42 U.S.C. § 12182(a).

3 Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008);
Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008).
4 Americans with Disabilities Act of 1990 § 308, 42 U.S.C. § 12188(b)(2).
5 Asare I, 476 F. Supp. 3d at 30.
6 Id.
7 Id.
8 Id. at 30–31.
9 Id. at 31.

Dr. Asare insisted that he had the right to refuse to perform surgery
on Mr. Milano and stated that it was his “right as a doctor” to turn
away patients that he determined were “medically inappropriate” for
surgery. 10
2. Victim 2
Victim 2, an opera singer, was diagnosed with HIV in 2009, and has
been taking antiretroviral medication since shortly after his
diagnosis. 11 By 2014, Victim 2’s “CD4 count, which is a measure of
immune system activity, was [in a] normal range, and his HIVviral
load, which identifies the measurable amount of virus in one’s system,
was undetectable.” 12 In the spring of 2014, Victim 2 felt that he was
ready to address his long-standing dissatisfaction with the appearance
of his chest. After doing some research into potential surgeons,
Victim 2 scheduled an appointment at Advanced Cosmetic with Dr.
Asare. 13
On April 2, 2014, just a few months before Mr. Milano’s
appointment at Advanced Cosmetic, Victim 2 met with Dr. Asare.
Victim 2 filled out the paperwork he was given, but when the form
asked him to disclose his HIV status, Victim 2 declined to do so.
Victim 2 explained at trial that “the thought of sharing [his] HIV
status was something that . . . encompasses a lot of conflict, a lot of
emotional stress and anxiety.” 14 Indeed, Victim 2 had not yet shared
his HIV status with his own family. 15
After completing the forms, Victim 2 met with Dr. Asare to discuss
the procedure, made a deposit for the surgery, and scheduled the
surgery for early June. 16 On May 15, 2014, Victim 2 returned to
Advanced Cosmetic “to pay the balance [of the procedure,] and to have
his blood drawn for pre-surgical testing.” 17At no point did Dr. Asare
or employees of Advanced Cosmetic obtain Victim 2’s consent to
perform an HIV test. 18
10 Id.
11 Id. at 26–27.
12 Id. at 27.
13 Id. at 26–27.
14 Id. at 27.
15 Id.
16 Id.
17 Id.
18 Id.

On May 29, 2014, the date of the scheduled surgery, Victim 2
returned to Advanced Cosmetic to meet with Dr. Asare in his office. At
that point, Dr. Asare told Victim 2 “that his blood work [came back
and they found out] that he had HIV, ‘and that it was [Dr. Asare’s]
policy—his office’s policy—not to perform procedures on people with
HIV.’” 19 Victim 2 responded that he “knew he was living with HIV,”
that he “was currently on antiretroviral medications, . . . had an
undetectable viral load, and . . . a CD4 count in the normal range.”20
Dr. Asare responded by saying “it’s really his nurses who would be
freaked out. If they knew Victim 2 was HIV-positive, they would be
too afraid of working on someone with HIV for fear of getting
infected.” 21 After that, Dr. Asare directed Victim 2 to go next door to
speak with his assistant to get a refund. 22
After leaving Defendants’ office, Victim 2 began to experience
overwhelming feelings of guilt and shame, reawakening issues
regarding his family, his past experiences, and conflicts with his
diagnosis that Victim 2 thought he had long overcome. 23 As a result,
Victim 2 sought help from a therapist to address those issues and
remained affected years later by his experience with Dr. Asare. 24
3. Victim 3
Victim 3, an underwriter of automotive loans, “was planning to get
married in September 2014” and “was not happy” with the look of his
chest. 25 He decided he wanted to address that issue surgically in
advance of his wedding. After conducting some research, Victim 3
scheduled an initial consultation with Dr. Asare at Advanced
Cosmetic in early May 2014—just weeks before Dr. Asare denied
medical treatment to Victim 2. 26
Before the initial consult, Victim 3 was given paperwork that
included questions about his medical history. Victim 3 has a blood
condition known as neutrophilic leukocytosis, which is an increase in
his white blood cell count, and was under the regular care of a
19 Id.
20 Id.
21 Id. (cleaned up).
22 Id.
23 Id. at 28.
24 Id.
25 Id. at 28.
26 Id.

hematology specialist. 27 The blood condition does not have any effects
on his daily life and does not require Victim 3 to take any
medications. 28 When Victim 3 filled out the medical history paperwork
at Advanced Cosmetic, he did not disclose this condition because, in
his view, “his condition was not responsive to any of the questions on
the forms.” 29 Victim 3 was not living with HIV. 30
“On May 13, 2014, [Victim 3] met with Dr. Asare for an initial
consult. A few days later, [Victim 3] paid for the [procedure] and
scheduled a preoperative visit for May 16, 2014.” 31 At that
preoperative visit, “employees of Advanced Cosmetic performed an
EKG, took vitals, and drew blood.” 32 No one at Advanced Cosmetic
sought consent from Victim 3 to conduct an HIV test. 33
On May 21, 2014, Victim 3 arrived at Advanced Cosmetic for his
surgery. 34 Shortly after arriving, Victim 3 put on a medical robe, was
taken into the operating area, took sedative pills, and was then given
an injection of another, stronger sedative by Dr. Asare. 35 About five
minutes later, Dr. Asare stated that he was canceling the procedure
because the preoperative blood tests indicated that Victim 3 was HIV
positive. 36 When Victim 3 protested that he could not be HIV positive
because he was under the care of a hematologist, Dr. Asare reaffirmed
that the procedure had to be canceled and told Victim 3 to get dressed
and prepare to leave. 37
Normally, a patient who receives surgery at Advance Cosmetic
would remain at the office for several hours before being discharged to
allow the sedatives to wear off. 38 Yet, despite how groggy Victim 3 was
feeling at this point from the preoperative sedatives he had been
given, shortly after speaking with Dr. Asare, Victim 3 was driven back
to his home, rather than being allowed to stay at the office until the
27 Id.
28 Id.
29 Id. at 28–29.
30 Id. at 28–30.
31 Id. at 29 (cleaned up).
32 Id.
33 Id.
34 Id.
35 Id.
36 Id.
37 Id.
38 Id.

effects of the sedatives subsided. 39 Once he arrived home, Victim 3
had some difficulty getting into his house because of the impact of the
sedatives. “After finally getting inside, [Victim 3] crawled on all fours
up the stairs to his bedroom and lost consciousness.” 40 Victim 3 woke
up after 11:00 p.m. that same night completely distraught; spent most
of the night awake, mulling over what Dr. Asare had told him; and
even contemplated suicide. 41
On May 22, 2014, Victim 3 called Advanced Cosmetic hoping to get
some answers about the HIV test result but was told Dr. Asare was
not available. 42 Victim 3 called his hematologist, who referred him to
another medical facility for a more conclusive HIV test. 43 Victim 3
then scheduled an appointment and HIV test for the next day. 44
On May 23, 2014, Victim 3 was finally able to schedule a meeting
with Dr. Asare, which was to take place shortly before his
appointment for the HIV test. 45 At that meeting, Dr. Asare explained
that he had to stop the procedure because the “they weren’t outfitted
at that facility to do the surgery on someone with HIV.” 46 Dr. Asare
asked no questions about Victim 3’s condition or any medication he
was taking. 47 After that meeting, Victim 3 went to another facility for
an HIV test. 48 The following day, he received the results of that test,
indicating that he was not HIV positive. 49
C. Investigation and procedural history
On July 15, 2014, the day after Dr. Asare refused to provide medical
treatment to Mr. Milano, Mr., “Milano filed a complaint with the
Department of Justice alleging that [Dr. Asare] violated his rights
under the ADA.” 50 The U.S. Attorney for the Southern District of New
York began an investigation and requested that Dr. Asare and
Advanced Cosmetics provide documents and information about
39 Id.
40 Id. at 30.
41 Id.
42 Id.
43 Id.
44 Id.
45 Id.
46 Id.
47 Id.
48 Id.
49 Id.
50 Id. at 24.

medical services provided to individuals living with HIV. 51 Dr. Asare
sent a letter in response admitting that “history of HIV infection”
would disqualify a patient from surgery. 52 Dr. Asare noted that he
believed it was his “right as a Cosmetic Surgeon” to have
“disqualifying criteria based on [his] comfort level.” 53
On May 6, 2015, the government filed a complaint against Dr. Asare
and Advanced Cosmetic (Defendants), alleging that Dr. Asare’s policy
and refusal to treat Mr. Milano violated Title III of the ADA. Mr.
Milano, who obtained private counsel, intervened in the action, and
asserted an additional claim under the New York City Human Rights
Law. 54 During the course of discovery, the government learned of
Victims 2 and 3 who were denied medical treatment by Dr. Asare due
to Dr. Asare’s belief that the individuals were living with HIV. 55
After discovery, the government and Mr. Milano moved for summary
judgment. Defendants admitted that they denied service to those
living with HIV because of concerns associated with interaction
between antiretrovirals and the combination of medications defendant
Dr. Asare used during his surgical procedures (Admitted Policy). 56
The court granted the government’s (and Mr. Milano’s) motion in
part, holding that Defendants’ Admitted Policy violated the ADA. The
court found that the undisputed evidence established Defendants’
policy of denying individuals with HIV taking antiretrovirals
constituted an application of eligibility criteria that screened out those
with disabilities, and the Admitted Policy involved no individualized
assessment of patients by Defendants. The court also held that there
was no evidence that the Admitted Policy was necessary to the
provision of Defendants’ services, or that making reasonable
modifications (for example, hiring an anesthesiologist) to
accommodate surgery on individuals taking antiretroviral medications
would constitute a fundamental alteration to Defendants’ services. 57
51 United States v. Asare (Asare II), No. 15 Civ. 3556, 2018 WL 2465378, at
*2 (S.D.N.Y. June 1, 2018).
52 Id.
53 Id.
54 Id. at *1.
55 Id.
56 Id.
57 Id. at *5–7.

The court found that Defendants applied this policy to Mr. Milano
and granted summary judgment as to his ADA claim. 58 But the court
also concluded that a material factual dispute remained with respect
to the government’s claims involving Victims 2 and 3, as further
discussed below, such that those claims must proceed to trial. 59
The court conducted a bench trial in October 2018, at which the
government prevailed on all claims. The court awarded damages to all
three victims, as well as injunctive relief and civil penalties. 60
III. Proving all discriminatory conduct to

achieve broad injunctive relief
Essential to proving liability and obtaining appropriate relief is
identifying all discriminatory conduct. Here, while Dr. Asare certainly
discriminated against individuals by refusing to provide them with
medical services upon learning about their HIV status, the
government was also able to prove additional discriminatory
conduct—that Dr. Asare tested all prospective patients for HIV
without their knowledge or consent. This additional evidence allowed
the United States to obtain broader injunctive relief.
For example, establishing Dr. Asare’s liability at trial with respect
to Victim 2 was relatively straightforward based on Dr. Asare’s
Admitted Policy of denying services to individuals who are taking
antiretroviral medications: Victim 2 was taking antiretroviral
medications at the time of his meeting with Dr. Asare and was denied
services on that basis. However, to prove that Dr. Asare discriminated
against Victim 3 (who was not living with HIV and, thus, was not
taking antiretroviral medications), the government had to identify
additional discriminatory conduct designed to screen out all
individuals perceived to be living with HIV—not just individuals
taking antiretroviral medications. That additional discriminatory
conduct was Dr. Asare’s practice of testing every patient for HIV. 61 By
proving Dr. Asare’s HIV testing policy was discriminatory, the
government was able to obtain monetary relief for Victim 3 and
injunctive relief to prevent broad HIV testing. 62
58 Id.
59 Id. at *4.
60 Asare I, 476 F. Supp. 3d at 25–36.
61 Id. at 35.
62 Id. at 37–42.

At trial, Dr. Asare testified that he needed to conduct HIV tests “to
assess whether potential patients were healthy candidates for
surgery.” 63 To counter this defense, the government presented expert
testimony that preoperative HIV screening does not provide
“meaningful information about the state of a patient’s health.” 64
Specifically, the expert testimony established that a person who has
an otherwise normal medical history, physical exam, and blood work
has no greater risk of surgical complications when living with HIV. 65
The government’s expert further testified that an HIV test does not
provide any pertinent information about the general health status of
the tested individual. 66
According to testimony by the government’s expert and a court-
appointed expert, 67 the scope and manner by which Dr. Asare
administered HIV tests were also key factors relevant to proving that
Dr. Asare screened out all individuals who tested positive for HIV.
With respect to scope, the government was able to show that broad
testing of all patients for HIV for the purpose of protecting medical
providers from possible infection was unnecessary due to the existence
of “Universal Precautions,” which are standard practices and
procedures used by all medical professionals and were established
approximately thirty years ago. Universal Precautions include an
assumption that any patient may have an infectious condition and
establish the common practice of taking appropriate precautions with
each patient. Therefore, Universal Precautions render HIV testing
unnecessary to determine whether providers should take additional
precautions when treating patients who are living with HIV. 68
Regarding the manner of testing, while there could be valid reasons
for broadly testing individuals for HIV status in a variety of settings,
mainly to link the tested individuals to additional care, Dr. Asare
never made any attempt to connect Victims 2 and 3 to medical care for
what Dr. Asare believed were newly diagnosed cases of HIV. Indeed,
according to the medical records presented at trial and Dr. Asare’s
63 Id. at 35.
64 Id. at 36.
65 Id. at 33.
66 Id. at 32–33.
67 Because the government’s expert did not practice medicine in New York
State, the court appointed an expert to opine on whether Dr. Asare’s HIV
testing practices complied with New York state law. Id. at 25–26.
68 Id.

own testimony, Dr. Asare made no real effort to contact Victim 2 to
ensure that he received appropriate care. Similarly, with respect to
Victim 3, Dr. Asare informed him of the HIV test results while he was
still under the influence of the sedation medications, and Dr. Asare
made no attempt to have a more meaningful discussion with Victim 3
once the effects of the medication wore off. Such evidence was crucial
to proving that the purpose of administering HIV tests to all patients
was discriminatory. 69
Finally, the fact that the HIV tests were performed clandestinely
further indicated that Dr. Asare intended to use the tests for
discriminatory purposes. At trial, Dr. Asare acknowledged that the
standard of care in New York required that he obtain and document
consent for HIV testing and admitted that there was no
documentation in the medical records suggesting that anyone in his
office sought or obtained consent from Victim 2 or 3 before testing
them for HIV. Indeed, both victims testified that they were never
informed that such tests were being conducted on them. 70
Accordingly, the government persuaded the court to base its liability
finding with respect to Victims 2 and 3 on Defendants’ “practice of
testing every preoperative patient for HIV” as the “mechanism for
implementing [the] broader ‘screen out’ policy.” 71 Significantly,
because the government’s theory of liability was based on the
Admitted Policy and Defendant’s broader practice of testing all
patients for HIV, the government was able to obtain broad injunctive
relief enjoining this practice. Specifically, the court ordered injunctive
relief enjoining Defendants from “(1) performing HIV testing on every
patient as routine practice, and (2) conducting HIV testing on any
patient without the patient’s express consent.” 72 The court further
ordered Defendants to “institute, and conduct their medical practice in
accordance with, written policies ensuring ADA compliance in the
patient intake and screening process.” 73
69 Id. at 35–36.
70 Id. at 33.
71 Id. at 35.
72 Id. at 42.
73 Id.

IV. Proving compensatory damages
without corroborating testimony
To prove emotional damages, the government only presented the
testimony of the victims. While emotional damages can be proven in a
variety of ways, including through medical records and expert
testimony, victims’ testimony can be sufficient if they can specifically
and compellingly describe the distress and anguish they suffered.
Indeed, based solely on the victims’ testimony, the court awarded each
victim $125,000, which, as the court noted, is on “the higher end of the
range for ‘garden-variety’ claims.” 74
There is little caselaw on appropriate emotional distress damages
for this type of disability discrimination. While Assistant U.S.
Attorneys need to rely on the standards in their respective circuits in
calculating appropriate damages, in the Second Circuit,
“non-economic damages can fall into one of three categories—garden
variety, significant, or egregious. Awards compensating
garden-variety emotional distress or mental anguish in the Second
Circuit range from $30,000 to $125,000.” 75
In garden-variety claims, the evidence of emotional
harm is limited to the plaintiff’s testimony, which
describes his of [sic] her injuries in vague or conclusory
terms, and fails to relate the severity or consequences of
the injury. These claims typically lack extraordinary
circumstances and are not supported by medical
testimony. Significant emotional distress claims are
based on more substantial harm or offensive conduct
and may be supported by medical testimony, evidence of
treatment by a healthcare professional, and testimony
from other witnesses. Egregious emotional distress
claims yield the highest awards and are warranted only
where the [defendant’s] conduct was outrageous and
74Id. at 38.
75Lewis v. Am. Sugar Refining, Inc., 325 F. Supp. 3d 321, 364 (S.D.N.Y.
2018). But see Quinby v. WestLB AG, No. 04 Civ. 7406, 2008 WL 3826695, at
*4 (S.D.N.Y. Aug. 15, 2008) (upholding a garden-variety emotional distress
award of $300,000 as “at or above the upper range of reasonableness”).

shocking or affected the physical health of the
plaintiff. 76
Thus, “[e]motional distress damages are available even where the
plaintiff has not sought medical treatment or the distress does not
manifest in physical symptoms.” 77
Here, while no witness testimony or other evidence was offered to
corroborate the victims’ experiences, the government argued that the
victims’ respective testimony regarding the emotional impact of Dr.
Asare’s actions was sufficient to establish that they were entitled to
the higher end of garden-variety emotional distress damages. The key
to persuading the court of the importance of awarding significant
damages was the sincere demeanor of the victims as they described
the significant distress they suffered because of Dr. Asare’s actions.
Indeed, despite the lack of corroborating evidence, the court
ultimately awarded $125,000 for each victim. 78
Specifically, with respect to Victim 2, the court was persuaded that
the government presented evidence of severe emotional distress over a
period of years as a result of the discriminatory conduct. The court’s
conclusion was based on Victim 2’s emotional testimony regarding the
humiliation he felt after years of working to overcome his
understanding of society’s perception of him being “dirty” or a
“deviant[]” as a result of his HIV diagnosis. 79 As he stated at trial, Dr.
Asare’s treatment caused him “to re-experience the emotional pain he
76 DeCurtis v. Upward Bound Int’l, Inc., No. 09 Civ. 5378, 2011 WL 4549412,
at *4 (S.D.N.Y. Sept. 27, 2011) (quoting Maker v. Alliance Mortg. Banking
Corp., No. 06 Civ. 5073, 2010 WL 3516153, at *2 (E.D.N.Y. Aug. 9, 2010))
(internal citations omitted).
77 Saber v. New York St. Dep’t of Fin. Servs., No. 15 Civ. 5944, 2018 WL
3491695, at *12 (S.D.N.Y. July 20, 2018) (citing Patrolmen’s Benevolent

Ass’n of City of N.Y. v. City of New York, 310 F.3d 43, 55–56 (2d Cir. 2002);
accord Sachs v. Nunziante, No. 15 Civ. 1825, 2016 WL 4506731, at *4
(E.D.N.Y. July 21, 2016)).
78 See Lewis, 325 F. Supp. 3d at 367–68 (awarding $115,000 for “garden-
variety” emotional distress); Saber, No. 15 Civ. 5944, 2018 WL 3491695, at

*13 (awarding $125,000 based on plaintiff’s testimony); Campbell v. Celico
P’ship, No. 10 Civ. 9168, 2012 WL 3240223, at *4 (S.D.N.Y. Aug. 6, 2012)
(same); Watson v. E.S. Sutton, Inc., No. 02 Civ. 2739, 2005 WL 2170659, at
*16 (S.D.N.Y. Sept. 6, 2005) (awarding $120,000 based on plaintiff’s
testimony).
79 Asare I, 476 F. Supp. 3d, at 38.

felt when he first learned he was HIV positive.” 80 Victim 2 further
testified that, for weeks after his encounter with Dr. Asare, he “was
consumed and overwhelmed by . . . feelings of shame” and that he saw
a therapist for 7 to 10 sessions to cope with his feelings. 81 This
testimony persuaded the court to award compensation on the “higher
end” range for garden-variety claims due to the “severe emotional
distress” suffered by Victim 2. 82
Regarding Victim 3, the court noted the “psychologically painful
state of uncertainty” he suffered after receiving the “shocking” news
that he had tested positive for HIV. 83 The court considered Victim’s 3’s
testimony that, when he arrived at the clinic for HIV testing after his
experience with Dr. Asare, “he broke down in tears, and had to be
comforted by a physician’s assistant.” The court was persuaded that
the “lasting impact of this experience cannot be doubted,” and that, “to
this day, [Victim 3] continues to carry [his negative HIV] test results,
as a reminder that he is not living with HIV.” 84 Accordingly, the court
concluded that Victim 3’s “traumatic experiences, resulting in his
continuing feelings of shock, fear, nervousness, and suicidal thoughts,
warrant an emotional distress award of $125,000.” 85
V. Conclusion
The outcome of the trial against Dr. Asare and his practice
illustrates the importance of identifying all forms of discriminatory
conduct—even in situations where the discriminatory conduct initially
seems obvious—to obtain appropriate injunctive relief to prevent
future discrimination. In addition, do not be deterred by the lack of
corroborating evidence when pursuing compensatory damages. This
case is an example of how it is possible to obtain substantial
compensatory damages on behalf of victims of discrimination based on
their own compelling testimony and without any corroborating
evidence.
80 Id.
81 Id.
82 Id. at 37–38.
83 Id. at 39.
84 Id.
85 Id.

About the Author
Lara K. Eshkenazi is the Deputy Chief of the Civil Division in the
U.S. Attorney’s Office for the Southern District of New York. She has
been an Assistant U.S. Attorney for over 18 years and has served in
various supervisory positions over her tenure, including as Deputy
Chief of the Civil Rights Unit from 2011 to 2014, and Co-Chief of the
Civil Rights Unit from 2014 to 2018. In June 2016, she was awarded
the Henry L. Stimson Medal from the New York City Bar Association
for her outstanding work as an Assistant U.S. Attorney. She also
received the John Marshall Award from the U.S. Attorney General in
2016 for outstanding legal achievement for participation in litigation
and the Director’s Award from the Director of the Executive Office of
U.S. Attorneys in 2011 for superior performance as an Assistant U.S.
Attorney. She received her B.A. from Vassar College and her J.D. from
Boston University.

Protecting Those Who Protect Us:
An Introduction to the
Servicemembers Civil Relief Act
and Uniformed Services
Employment and Reemployment
Rights Act for AUSAs Interested
in Starting a Servicemembers and
Veterans Practice
Nicole Siegel Tanya Kirwan
Acting Director Trial Attorney
Servicemembers and Veterans Housing and Civil Enforcement
Initiative Section
Civil Rights Division Civil Rights Division
Andrew Braniff Torey Cummings
Assistant Director Assistant U.S. Attorney
Servicemembers and Veterans District of Massachusetts
Initiative
Amy Romero
Special Litigation Counsel
Employment Litigation Section
District of Rhode Island
Zeyen Wu
Deirdre Brou
District of Colorado
Eastern District of Virginia
I. Introduction
Members of our armed forces face unique burdens when they choose
to serve our country. An Army Reservist may be discriminated against
by an employer who is unhappy with multiple service-related
absences. An Air Force pilot who placed all her belongings in a storage
unit may come home to find her items auctioned off due to payment
delays while deployed overseas. A national guardsman called to
federal duty to assist with COVID-19 vaccine distribution may need to
move and, subsequently, face excessive fees for terminating his
apartment lease early.

Fortunately, the Department of Justice (Department), and the Civil
Rights Division (Division) in particular, has the resources and legal
authorities to help alleviate these burdens and protect
servicemembers’ rights. But the Division cannot do this work alone. It
relies on the U.S. Attorney community to support this work by
conducting outreach, identifying local needs, and assisting with cases
developed within each district.
This article will provide: (1) an introduction to the Department’s
Servicemembers and Veterans Initiative; (2) an overview of the
Uniformed Services Employment and Reemployment Rights Act and
the Servicemembers Civil Relief Act; (3) two recent success stories
from the field; and (4) a guide for Assistant U.S. Attorneys (AUSAs)
interested in starting a servicemembers and veterans practice. We
hope that this article will inspire more U.S. Attorneys’ Offices
(USAOs) and AUSAs to partner with the Division in “build[ing] a
comprehensive legal support and protection network focused on
serving servicemembers, veterans, and their families.” 1
II. The Servicemembers and Veterans

Initiative
The Servicemembers and Veterans Initiative (Initiative) was
announced in March 2015 and formally launched by Attorney General
Loretta Lynch in October 2016. The Initiative’s mission is to support
the Department in its efforts to protect servicemembers and veterans
through outreach, enforcement assistance, and training.
The Initiative routinely conducts outreach and training for military
populations and the people who serve them, such as veteran
organizations, military training schools, military legal assistance
offices, and law school clinics. These trainings are focused on federal
laws protecting servicemember and veteran employment, financial
security, and civil rights. The Initiative also liaises with federal
partners serving military populations, such as the Department of
Defense, the Consumer Financial Protection Bureau, the Department
of Labor, and the Equal Employment Opportunity Commission, as
well as outside groups such as the American Bar Association. The
Initiative also provides extensive support and training to AUSAs who
1About the Initiative, DEP’T OF JUST.,

https://www.justice.gov/servicemembers/about-initiative (last visited Jan. 14,
2022).

are interested in developing servicemember and veteran practices in
their districts.
On January 5, 2021, the President signed the Servicemembers and
Veterans Initiative Act of 2020 (SVI Act), which formally established
the Initiative within the Division. 2 The SVI Act directed the initiative
to promote policies to support servicemembers and veterans, to liaise
with military contacts, to promote civil legal aid to the military
community, and to support the enforcement of federal laws to protect
servicemembers and veterans. 3 This Act codified the Initiative’s role
within the Department and renewed the initiative’s resolve to not just
continue, but also enhance, its efforts to protect the civil rights of
servicemembers and veterans. The Initiative is housed within the
Division’s Policy and Strategy Section.
III. Civil Rights Division’s enforcement of

servicemember and veteran rights
The Division enforces the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) and the Servicemembers
Civil Relief Act (SCRA), which work to protect the employment rights
and financial security of members of the military community. 4 The
Division works collaboratively with USAOs nationwide to investigate,
litigate, and resolve these cases. With the support of subject-matter
experts within the Division, AUSAs frequently serve as lead attorneys
on these matters and have the opportunity to work directly with the
aggrieved servicemembers and veterans.
2 Servicemembers and Veterans Initiative Act of 2020, Pub. L. No. 116-288,

123 Stat. 4884 (2021).
3 Id.
4 See Uniformed Services Employment and Reemployment Rights Act of
1994, 38 U.S.C. §§ 4301–4335; Servicemembers Civil Relief Act, 50 U.S.C. §§

3901–4043. The Division enforces additional statutes that provide protections
for servicemembers and veterans, including the Uniformed and Overseas
Citizens Absentee Voting Act (52 U.S.C. §§ 20301–2311), the Fair Housing
Act (42 U.S.C. §§ 3601–3631), and the Americans with Disabilities Act (42
U.S.C. §§ 12111–12213). While we do not covering these statutes in this
article, you can contact the SVI to learn more about how these laws apply to
the military community.

A. The Uniformed Services Employment and
Reemployment Rights Act 5
The Division’s Employment Litigation Section (ELS) enforces the
Uniformed Services Employment and Reemployment Rights Act
(USERRA). USERRA protects servicemembers in their civilian
employment. 6 It provides for causes of action for discrimination,
reemployment, benefits, pensions, and protection from discharge
based on military service. For example, USERRA:
• makes it unlawful to terminate, fail to promote, or to take an
adverse employment action against servicemembers based on
their past, present, or future military service; 7
• requires prompt reemployment for servicemembers following
periods of leave from their civilian employer due to military
service; 8
• requires employers to reemploy servicemembers in a position
with the seniority, status, and rate of pay that they would have
obtained had they remained continuously employed; 9
• requires employers to fund servicemembers’ pensions during
periods of leave for military service as if they had remained
continuously employed; 10 and
• prohibits employers from terminating servicemembers, except
for cause, within a year following long term military
deployments. 11
If a servicemember believes her USERRA rights were violated, she
must first file a complaint with the Department of Labor’s Veterans’
Employment and Training Service (DOL-VETS), which investigates
and attempts to resolve the matter. 12 If DOL-VETS cannot resolve the
complaint, the servicemember may ask DOL-VETS to refer the claim
5 38 U.S.C. §§ 4301–4335.
6 See 38 U.S.C. § 4301(a).
7 38 U.S.C. § 4311(a)–(b).
8 38 U.S.C. § 4313(a).
9 Id.
10 38 U.S.C. § 4318(b).
11 38 U.S.C. § 4316(c).
12 See Employment, DEP’T OF JUST., https://www.justice.gov/servicemembers/
employment (updated June 30, 2020).

to the Attorney General for review. 13 “If the Attorney General is
reasonably satisfied that the servicemember is entitled to relief, the
Attorney General may commence an action in federal court on behalf
of the servicemember.” 14 Upon receipt of a claim, the Division will
contact the USAO where the claim may be filed in federal court to
collaborate with that office in prosecuting the claim. “If the employer
is a state or state agency, the action is brought in the name of the
United States. In all other cases, the United States files suit in the
name of the servicemember” and acts as the attorney for the
servicemember. 15 This presents a unique opportunity for AUSAs to
personally represent clients in civil actions.
The most frequent referrals from DOL-VETS involve failures to
reemploy members of the National Guard (Guard) or U.S. Reserve
(Reserve) forces following periods of service. Since September 11th,
over one million members of the Guard and Reserve have been called
up for long-term deployments. Most recently, tens of thousands of
Guard and Reserve members served extended tours of duty to assist
with the domestic response to the COVID-19 pandemic. USERRA
protections are not only essential to these servicemembers, but also to
their family members who rely on their financial support.
Since the Division assumed USERRA enforcement authority in 2004
and through the end of FY 2020, the Department “has filed 109
USERRA lawsuits and favorably resolved 200 USERRA complaints,”
either through consent decrees or private settlements. 16 The Division
has been fortunate to work with more than 50 USAOs on these cases,
ranging from Alaska to the U.S. Virgin Islands.
B. Servicemembers Civil Relief Act 17
The Division’s Housing and Civil Enforcement Section (HCE)
enforces the Servicemembers Civil Relief Act (SCRA), which provides
certain financial and civil legal protections to servicemembers and
their families. The law covers issues such as rental agreements,
13 Id.
14 Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA), DEP’T OF JUST.,
https://www.justice.gov/servicemembers/uniformed-services-employment-
and-reemployment-rights-act-1994-userra (updated July 31, 2019).
15 Id.
16 Id.
17 50 U.S.C. §§ 3901–4043.

evictions, repossessions, credit card interest rates, mortgage
foreclosures, civil judicial proceedings, and automobile leases. For
example, the SCRA:
• makes it unlawful for a creditor to repossess a servicemember’s
car or foreclose on a servicemember’s home without a court order,
so long as the debt was incurred before military service; 18
• allows a servicemember to terminate a residential or vehicle lease
early and without penalty if they receive qualifying deployment or
other military orders that make it impracticable for them to
continue using the residence or vehicle; 19
• allows servicemembers to request a 6% interest rate cap on any
financial obligation incurred before military service (including
mortgages, student loans, and credit card debt); 20 and
• prohibits creditors from obtaining default judgments against
active duty servicemembers without notifying the court of the
defendant’s military status. 21
The Department’s SCRA settlements since FY 2009 have provided
more than $474 million in compensation to more than 120,000
servicemembers and $925,000 in civil penalties to the United States.
IV. Success stories from the field

A. Hunger v. Walmart, Inc.: The District of Colorado
holds retail giant accountable for discriminating
against a Naval Reservist
Recently, in a collaborative effort between the District of Colorado
and the ELS, the United States was able to obtain relief for Naval
Petty Officer Third Class (PO3) Lindsey Hunger. PO3 Hunger has
been a member of the Naval Reserve for seven years, where she
worked as a machinist’s mate, repairing ships for redeployment. PO3
Hunger alleged that Walmart violated her rights when it failed to
offer her employment at the Walmart store located in Grand Junction,
18 50 U.S.C. §§ 3952, 3953.

19 50 U.S.C. § 3955.
20 50 U.S.C. § 3937.
21 50 U.S.C. § 3931(b)(1).

Colorado, because of her upcoming Naval Reserve commitments. 22
PO3 Hunger applied to work at Walmart online in May 2016. 23
On May 27, 2016, PO3 Hunger spoke to the hiring director and
learned that the job included general customer service work and
stocking. 24 The hiring director also explained that the position was
temporary and seasonal, but there was a possibility to stay on in an
overnight shift after the end of the season. 25 At the end of the
conversation, PO3 Hunger informed the hiring director that she would
need two weeks off during the summer to complete her Navy Reserve
training. 26 PO3 Hunger was immediately told that she could not be
hired because Walmart could not support two weeks off. 27 PO3
Hunger offered to work any position available, but she was informed
that no other job was available.
Following her denial of employment, PO3 Hunger filed a claim with
DOL-VETs, which determined that Walmart had likely violated the
statute but could not reach a resolution. PO3 Hunger requested a
referral of her matter to the Department, and the Division contacted
the District of Colorado. The assigned AUSA immediately contacted
PO3 Hunger, who told him she was surprised that her small case
reached the level of a U.S. Attorney’s Office. After interviewing the
claimant and researching the statute, the AUSA determined that a
USERRA violation could be established and that representation
should be offered to PO3 Hunger.
As the AUSA learned, USERRA prohibits discrimination based on
military service in initial employment decisions. 28 The definition of
“employer” explicitly covers an entity “that has denied initial
employment in violation of section 4311.” 29 The House Report on
USERRA also supports this view, explicitly incorporating the
reasoning of Beattie v. Trump Shuttle, Inc., 30 which held that, under
the Veteran’s Reemployment Rights Act, a predecessor to USERRA,
an employer could not deny initial employment based on
22 Complaint at 2–3, Hunger v. Walmart Inc., No. 19-cv-03090 (D. Colo.

2019), ECF No. 1.
23 Id. at 3.
24 Id.
25 Id.
26 Id.
27 Id.
28 38 U.S.C. § 4311(a); 20 C.F.R. § 1002.40.
29 38 U.S.C. § 4303(4)(A)(v).
30 758 F. Supp. 30 (D.D.C. 1991).

unavailability created by military service obligations. 31 Based on the
facts and law, the AUSA drafted a representation memo for PO3
Hunger and, once approved, signed a representation agreement,
becoming her personal attorney.
On October 30, 2019, the USAO filed a complaint in the District of
Colorado, 32 and on January 7, 2020, the Department announced it had
reached a settlement with Walmart. 33
As part of the settlement, which include[d] backpay for
[PO3] Hunger, Walmart has agreed to review its
employment and internal hiring policies across the
corporation. [Specifically, it] [r]evise[d] the policies to
include the following language: “Walmart prohibits
discrimination against individuals, including
applicants, based on their military service (including
required military training obligations) or membership
in the uniformed services.” Walmart will also ensure
that “all supervisors, managers, and administrative
staff” in the Grand Junction, Colorado store at issue
receive training—developed in consultation with the
United States—“on the requirements of USERRA and
on employees’ and service members’ rights and
obligations under the statute.” 34
Although the Department has brought many USERRA cases before,
this was the first matter in which the Department brought a claim
alleging only the denial of initial employment. Because Department
attorneys provide personal representation to servicemembers under
USERRA, the AUSA worked closely with his client to develop the
case, in addition to guiding her through the many attempted media
inquiries, including from the New York Times. PO3 Hunger described
the AUSA as kind and patient in their conversations, many of which
occurred in the evenings after normal work hours.
31 H.R. REP. NO. 103-65(I), at 23 (1993); Beattie, 758 F. Supp. at 36.

32 Press Release, Dep’t of Just., Department of Justice Sues Walmart to
Enforce Employment Rights of Naval Reservist (Oct. 30, 2019).
33 Press Release, Dep’t of Just., Colorado U.S. Attorney Announces
Settlement With Walmart Over Discrimination Claim By Naval Reservist

(Jan. 7, 2020).
34 Id.

Local AUSAs are key components to litigating USERRA matters,
not only for their knowledge of the district court and judges, but also
their ability to meet and confer face to face with the Department’s
USERRA clients and guide them through difficult times in their lives.
B. United States v. Father & Son Moving & Storage:
The District of Massachusetts and the Division
enforce the SCRA rights of an Air Force Sergeant
whose invaluable heirlooms where illegally
auctioned off while deployed
On July 8, 2019, Father & Son Moving & Storage in Billerica,
Massachusetts, auctioned off virtually all Technical Sergeant (TSgt.)
Charles Cornacchio’s household and personal possessions. 35 TSgt.
Cornacchio, a full-time active duty servicemember in the U.S. Air
Force since 2007, had contracted with Father & Son to store his
possessions while he was deployed to Qatar. 36 While TSgt. Cornacchio
was serving our country overseas, Father & Son sold not only his
furniture and appliances, pots and pans, lamps and rugs, but also
family heirlooms and other personally meaningful items, such as
military medals and mementos earned by family members, hand-
carved furniture, photographs, and letters. 37
Section 3958 of the SCRA is a strict liability statute. It makes it
unlawful for a storage company, like Father & Son, that has a lien on
a servicemember’s property to sell, auction off, or otherwise dispose of
that property without a court order. 38 Under the SCRA, the
United States is not required to prove that a defendant knew that a
person was a servicemember before enforcing a lien against them. 39 In
this case, however, there was little argument that Father & Son was
aware that TSgt. Cornacchio was in the military. TSgt. Cornacchio
told Father & Son that he needed to store his possessions because he
was being deployed overseas. 40 Father & Son picked up TSgt.
Cornacchio’s possessions on Hanscom Air Force Base, Massachusetts,
and TSgt. Cornacchio was present and in his Air Force uniform on the
35 Complaint at 3–4, United States v. Father & Son Moving & Storage, No.
20-cv-11551 (D. Mass. 2020), ECF No. 1.
36 Id. at 2–3.
37 Id. at 3.
38 See 50 U.S.C. § 3958(a).
39 See 50 U.S.C. § 3958.
40 Complaint, supra note 35, at 3.

day Father & Son assumed responsibility for his possessions. 41 Father
& Son even sent a notice to TSgt. Cornacchio at his former Hanscom
Air Force Base address. 42 The notice informed TSgt. Cornacchio that
“his account was allegedly in arrears” and his belongings would be
sold at auction, but TSgt. Cornacchio did not receive this notice, which
was eventually forwarded to him in Qatar, until August 5, 2019, a
month after his possessions had been sold. 43
TSgt. Cornacchio contacted the Armed Forces Legal Assistance
Program Office for the U.S. Air Force, which referred the case to HCE.
HCE reached out to the Civil Rights Unit for the District of
Massachusetts, and the case was handled jointly by an AUSA and a
HCE Trial Attorney. Upon opening the investigation in the fall of
2019, the AUSA was able to meet in person with TSgt. Cornacchio in
Massachusetts after he returned from his deployment and worked
swiftly to recover a number of his household possessions.
Unfortunately, none of the family heirlooms or items of great
sentimental value to TSgt. Cornacchio could be located. They remain
lost, likely forever, because the third-party buyer, who had no
knowledge of Father & Son’s SCRA violations, sold most of TSgt.
Cornacchio’s items at a flea market.
After unsuccessful attempts to settle without litigation, the
Department filed a complaint on August 18, 2020, against Father &
Son in the District of Massachusetts, alleging a violation of the
SCRA. 44 The complaint alleged that, contrary to the law, Father &
Son had no policies relating to foreclosing or enforcing liens on
property belonging to servicemembers. 45 The complaint sought
monetary damages for TSgt. Cornacchio, a civil penalty to vindicate
the public interest, and equitable relief. 46 In its answer to the
complaint, Father & Son admitted to liability for violating the SCRA,
so the only issues remaining were damages and the terms of any
equitable remedies. 47
41 Id.
42 Id. at 4.
43 Id.
44 Id. at 1.
45 Id. at 4–6.
46 Id.
47 Answer of the Def., Father & Son Moving & Storage to the Pl.’s Compl.,
Father & Son Moving & Storage Co., No. 20-cv-11551, ECF No. 6.

The Department attorneys asked TSgt. Cornacchio to make a list of
his possessions that were auctioned off, estimating the value of each
one. The Department used this information to make a settlement
demand to Father & Son. The parties attempted to mediate the case
with a Magistrate Judge over Zoom in March 2021. One advantage of
the Zoom mediation was that TSgt. Cornacchio, who was stationed
overseas at the time, was able to participate and to tell the judge
about the items he had lost, especially the irreplaceable and
sentimental ones. The mediation did not immediately result in a
settlement, but the parties continued to negotiate and were eventually
able to reach agreement. The parties asked the court to enter their
agreement as a consent decree on September 16, 2021. 48
Under the consent decree, Father & Son must pay TSgt. Cornacchio
$60,000 in damages and the United States a $5,000 civil penalty. 49
Father & Son must also implement new policies to prevent future
SCRA violations. 50
While his family heirlooms were invaluable and irreplaceable, this
was a meaningful settlement and good outcome for TSgt. Cornacchio,
as well as for future servicemembers who use Father & Son’s storage
facility. The partnership between the USAO and HCE was key to the
success of the case, because the AUSA was able to work with TSgt.
Cornacchio locally and provide local expertise, while the HCE Trial
Attorney, who specializes in SCRA matters, provided expertise on
litigating in this area. The USAO intends to use this settlement to
conduct outreach in Massachusetts, with the hope of receiving more
SCRA referrals.
V. Starting a servicemembers and veterans

practice
Starting a servicemembers’ and veterans’ rights practice within a
USAO can be rewarding and fruitful and can be done with minimal
resources. This type of practice can also bring significant benefits to a
District in terms of case development, AUSA experience, and
community engagement.
48 Consent Order, Father & Son Moving & Storage, No. 20-cv-11551,
ECF No. 12-1.
49 Id. at 5–7.
50 Id. at 2–5.

A. The benefits and resources
The Initiative’s and the Division’s litigating components have
dedicated resources and expertise to support USAOs in conducting
servicemember-related outreach and investigations. The Initiative can
provide USAOs with local military contacts, trainings, and other
outreach materials, while ELS and HCE are available to provide
guidance, investigatory support, and sample documents for all stages
of an enforcement action.
Engaging in outreach to the local military community can offer
several benefits to a USAO. Outreach may lead to the discovery of a
variety of federal violations of the military community’s civil and
consumer rights. It can also provide an excellent opportunity for a
USAO to strengthen ties to the local community. Interacting with
local members of the Judge Advocate General Corps (JAGC) can foster
lasting relationships with USAOs that can lead to the appointment of
Judge Advocates (JAs) as Special Assistant U.S. Attorneys. As the
servicemembers and veterans practice expands, the USAO can
develop a broader network that includes state veterans service
agencies, the state bar, the state judiciary, and private organizations
that assist veterans and consumers.
Finally, a servicemembers’ and veterans’ rights practice also allows
AUSAs to develop closer working relationships and connections with
other federal partners, including the Departments of Defense,
Veterans Affairs, and Labor, and the Consumer Financial Protection
Bureau. All these connections strengthen the USAO’s ties to state,
federal, and non-governmental entities within the District, which
contribute to the USAO’s mission of enforcing the criminal and civil
rights laws of the United States, representing the interests of the
United States in civil litigation, and addressing the public safety
needs of the District.

B. How to get started
When developing outreach, a USAO may want to consider taking
the following steps:
1. Identify local military installations
Identify the military installations, reserve units, and national guard
leadership in the District. 51
A broad understanding of the type and nature of the military
population in the District will allow the USAO to tailor its outreach
and training to suit local needs. For example, districts with large
numbers of military bases (such as the Eastern District of Virginia or
the Western District of Texas) are likely to have a larger number of
active duty servicemembers who may encounter SCRA issues.
Districts with a significant number of reserve components will likely
confront USERRA issues.
2. Outreach to military installations
Contact the Office of the Staff Judge Advocate (OSJA) for each
installation and set up a call with the senior attorney, ideally the Staff
Judge Advocate (SJA) and the Chief of Legal Assistance. 52
Brief the SJA and Legal Assistance Chief on the assistance and
services the USAO can provide.
Offer to provide training to the JAs and civilian attorneys in the
office. All members of the JAGC have annual training requirements,
which include SCRA and USERRA training, and they are frequently
enthusiastic about receiving such training from Department
attorneys.
Indicate the USAO’s willingness to work with the OSJA to identify
and address SCRA and USERRA issues that servicemembers
encounter in the District.
Provide the USAO’s contact information to the OSJA attorneys.
51 The SVI has packets of information that can be shared upon request. In
addition, the Department of Defense has a useful resource to search for local
installations. See Military Installations, U.S. DEP’T OF DEF.,
https://installations.militaryonesource.mil/view-all (last visited Dec. 13,
2021).
52 You can search for your local military legal assistance offices through the
AF Legal Services Locator. AF Legal Services Locator, U.S. ARMED FORCES

LEGAL ASSISTANCE, https://legalassistance.law.af.mil/ (last visited Oct. 22,
2021).

3. Outreach to local bar associations
Reach out to the state bar association and offer to provide SCRA and
USERRA Continuing Legal Education training to members.
Offer to provide training to sections of the state bar that focus on
military and veterans law, family law, and employment law.
Contact creditors’ and plaintiffs’ bar organizations in the District
and offer to provide training.
Contact the American Bar Association’s Standing Committee on
Legal Assistance for Military Personnel to identify issues within the
District that affect veterans and servicemembers, as well as
opportunities for collaboration. 53
4. Outreach to local law schools
Identify law schools in the District with veterans, consumer rights,
or employment law clinics. The Initiative has contacts for the law
schools with veterans clinics in each District that can be shared on
request. 54
Offer to provide training on the SCRA and USERRA.
Collaborate on referral protocols with the schools.
5. Outreach to veterans service agencies,
organizations, and law practitioners
Connect with attorneys in the state’s veterans service agencies and
brief them on the SCRA, USERRA, and assistance the USAO can
provide to them.
Identify Department of Veterans Affairs entities in the District. 55
Contact Veterans Health Administration facilities in the District
and offer SCRA, USERRA, Americans with Disabilities Act, Fair
Housing Act, and other training to the staff, particularly to social
53 Standing Committee on Legal Assistance for Military Personnel, AM. BAR

ASSOC., https://www.americanbar.org/groups/legal_assistance_military_
personnel/ (last visited Dec. 13, 2021).
54 The National Law School Veterans Clinic Consortium is also a helpful
resource. NAT’L L. SCH. VETERANS CLINIC CONSORTIUM, https://nlsvcc.org/

(last visited Dec. 13, 2021).
55 It is very likely that the Civil Division in the district’s USAO already has
contacts with the Department of Veterans Affairs through its defensive civil
litigation docket. Use those contacts for starting points if you don’t already
have one.

workers, mental health professionals, and physicians who interact
daily with veterans.
Contact Veterans Affairs Homeless Programs in the District.
Contact Veterans Justice Outreach offices in the District.
Identify and network with veterans services organizations in the
District, such as the American Legion and Veterans of Foreign Wars.
Contact state veterans treatment courts in the District.
6. Outreach to state judiciary
Contact the state judiciary and offer to provide SCRA training to
judges and clerks of court.
Highlight issues the USAO has identified within the District
involving SCRA compliance, such as failure to comply with the
SCRA’s default judgment provisions.
7. Outreach to state government
Several states, including Florida, South Carolina, and Missouri,
have state-level servicemembers and veterans-related agencies
managed by the State Attorney General’s office. The Initiative and
AUSAs have coordinated with these offices to run joint federal and
state outreach actions because there are frequently broader state-level
remedies for violations than potential federal remedies.
VI. Conclusion
The Initiative is proud to serve the Department by coordinating a
comprehensive program to enforce the rights of servicemembers,
veterans, and their families. This includes devoting resources to
support USAOs in starting servicemembers and veterans practices in
each District. The Initiative looks forward to having more USAOs join
this effort to protect those who have made significant sacrifices to
protect all of us.

About the Authors
Nicole Siegel is the Acting Director of the Servicemember and
Veterans Initiative at the U.S. Department of Justice. Nicole
previously served as a Trial Attorney in the Housing and Civil
Enforcement Section of the Civil Rights Division, where she enforced
cases involving the Servicemembers Civil Relief Act and the Fair
Housing Act. Before joining the Civil Rights Division, Nicole was an
Attorney Advisor in the Department’s Office of Legislative Affairs,
where she handled legislation involving civil rights, including
servicemember and veterans. Nicole holds a J.D. from Rutgers
University, an M.S.W. from Columbia University, and a B.S.W. from
McGill University.
Andrew Braniff is a Special Litigation Counsel for the Employment
Litigation Section of the Civil Rights Division, which he joined in 2004
following a clerkship for the U.S. Court of Appeals for the Seventh
Circuit. He graduated from Pepperdine Law in 2000 and holds a B.S.
in Physics from Harvey Mudd College.
Deirdre Brou is an Assistant U.S. Attorney in the Civil Rights
Enforcement Unit of the U.S. Attorney’s Office for the Eastern District
of Virginia, where she has served for five years. Before joining the
U.S. Attorney’s Office, Deirdre served on active duty in the U.S. Army
for over 20 years and, after retiring from the Army, was a Trial
Attorney for a year and a half in the Department’s Criminal Division.
She holds a J.D. from the University of South Carolina, an LL.M. from
the Army Judge Advocate General’s Legal Center and School, and a
B.A. from the University of Virginia.
Torey Cummings is an Assistant U.S. Attorney for the District of
Massachusetts, where she is in the Civil Rights Unit. She enforces
federal civil rights statutes prohibiting discrimination in housing,
education, policing, disability, and employment, and she prosecutes
hate crimes. Before coming to Massachusetts, Torey was a Senior
Trial Attorney in the Civil Rights Division of the U.S. Department of
Justice in Washington, D.C. She has led multiple major civil rights
investigations of states, universities, police departments, and school
districts, among other entities. Her past cases include United States v.
North Carolina (H.B.2 and transgender rights related to bathroom
use); United States v. Georgia (inappropriate segregation of students
with disabilities in schools); and United States v. Anoka-Hennepin
School District (harassment of LGBT and gender nonconforming

students). Torey has a juris doctorate and a master’s degree in social
work from Washington University in St. Louis and a bachelor’s degree
from Cornell University.
Tanya Kirwan, a recipient of the 2015 Attorney General’s John
Marshall Award for Participation in Litigation for her SCRA work,
has served as a litigating attorney for the Department of Justice’s
Civil Rights Division for over 20 years. While she handles cases under
all of the statutes the Division’s Housing and Civil Enforcement
Section enforces, her SCRA work alone has resulted in aggrieved
servicemembers receiving over $100 million in compensation.
Amy R. Romero is an Assistant U.S. Attorney for the District of
Rhode Island, focusing on enforcement of federal civil rights laws.
Before joining the U.S. Attorney’s Office, Amy represented individuals
in housing and employment discrimination cases at Rhode Island
Legal Services and Community Legal Aid in Worcester,
Massachusetts. Amy grew up in Providence, Rhode Island, graduated
from Swarthmore College and the University of Pennsylvania Law
School, and clerked for the U.S. Court of Appeals for the Third Circuit.
Zeyen Wu is an AUSA for the U.S. Attorney’s Office for the District of
Colorado. He graduated from UCLA School of Law in 2012 and joined
the District in 2013. He has been handling affirmative civil rights
cases for the office since 2016, which includes evaluating complaints,
conducting pre-litigation investigation, negotiating settlements, and
litigating cases under a variety of federal civil rights laws, including
the Americans with Disabilities Act, the Fair Housing Act, the Equal
Educational Opportunities Act, Title VI of the Civil Rights Act of
1964, and USERRA. He has also handled False Claims Act cases and
defended civil litigation against federal agencies in a variety of areas.


Section 12601 and Title VI: Two
Powerful Department Tools to
Address Systemic Police
Misconduct
Nicole Porter
Trial Attorney
Special Litigation Section
Christina Fogg
Former Assistant U.S. Attorney
Western District of Washington
Bharathi Venkatraman
Attorney, U.S. Attorney’s Office Coordinator
Federal Coordination and Compliance Section
I. Introduction
Given the recent killings of George Floyd, Breonna Taylor, and
others at the hands of police, many communities are looking for ways
to address misconduct and hold law enforcement officers accountable.
State, county, and local officials are also eager to improve their law
enforcement agencies and increase transparency and legitimacy for
their departments. The Department of Justice (Department) has two
unique tools in its toolbox to address systemic misconduct:
section 12601, which prohibits law enforcement agencies from
engaging in a “pattern or practice” of misconduct, and Title VI of the
Civil Rights Act of 1964, which prohibits agencies receiving federal
financial assistance from engaging in discrimination. 1 These tools help
ensure more effective, constitutional policing; greater police
accountability; and improved trust between law enforcement and the
communities they serve. This article discusses the background of
section 12601 and Title VI, the roles of the Civil Rights Division’s
(Division) Special Litigation and Federal Coordination and
Compliance Sections in enforcing the respective laws, and how
1The Department also enforces the Omnibus Crime Control and Safe Streets
Act of 1968, which prohibits discrimination in programs or activities
supported by federal funds. Omnibus Crime Control and Safe Streets Act of
1968 § 809, 34 U.S.C. § 10228.

enforcement has led to improvements in police operations and
accountability. We hope the article provides insight into how section
12601 and Title VI matters are investigated; the applications of the
statutes, including the enforcement and resolution mechanisms
available; and the Department’s efforts to impact the policing
landscape through these two statutes.
II. Section 12601

In 1994, Congress passed the Violent Crime Control and Law
Enforcement Act. 2 The statute authorizes the Department to
investigate law enforcement agencies that engage in a pattern or
practice of conduct that deprives individuals of rights secured by the
Constitution or federal law and to obtain equitable and declaratory
relief to eliminate the pattern or practice. 3 The Act was passed after a
series of congressional hearings to determine how the federal
government could address systemic police misconduct, 4 as section
1983 5 actions by private plaintiffs could result in monetary damages,
but faced significant limitations on obtaining injunctive relief against
law enforcement agencies. 6
The Department’s Special Litigation Section (SPL) enforces
section 12601, sometimes in partnership with local U.S. Attorneys’
Offices. SPL does this work by investigating state and local law
enforcement agencies thought to have engaged in a pattern or practice
of unlawful conduct, negotiating reform agreements with those
agencies that SPL has found to have engaged in a pattern or practice,
and enforcing the terms of any agreements reached. This work is done
by SPL attorneys, investigators, community outreach specialists, and
paralegals, as well as expert consultants who work alongside SPL
staff and assist SPL in its efforts. (We discuss the important role of
U.S. Attorneys’ Offices later in this article.) Since the statute’s
2 Violent Crime Control and Law Enforcement Act of 1994 Pub. L. No. 103-
322, 108 Stat. 1796 (1994).
3 Violent Crime Control and Law Enforcement Act of 1994 § 210401, 34
U.S.C. § 12601(a)–(b).
4 See H.R. REP. NO. 102-242, at 136 (1991). (House Report on Omnibus Crime
Control Act of 1991).

5 42 U.S.C. § 1983.
6 See City of Los Angeles v. Lyons, 461 U.S. 95, 112–113 (1983).

passage, the Department has opened 73 investigations and entered
into 40 agreements. 7
A. Investigation
The Assistant Attorney General for Civil Rights decides whether to
open an investigation. Many factors play into SPL’s decision to
recommend opening an investigation. An investigation can be opened
based on SPL’s research. SPL reviews publicly available information,
including media articles, reports issued by academics and advocates,
and civil lawsuits filed against the jurisdiction. SPL also may speak
with community organizations or local attorneys about misconduct
issues in the area. Finally, SPL can review and assess complaints filed
with SPL about a particular jurisdiction. A U.S. Attorney’s Office can
also recommend opening an investigation by submitting a
recommendation to SPL.
In determining whether an investigation should be opened, SPL
considers whether the matter involving the jurisdiction is one that
many law enforcement agencies are struggling with, such as issues
with excessive force, unlawful search and seizure, discriminatory
policing, and deficient internal and external accountability systems.
Reforms successfully negotiated and adopted in one jurisdiction can
serve as models for implementation for other law enforcement
agencies. On the other end of the spectrum, SPL also considers
whether the matter involving the jurisdiction represents a novel,
developing issue that SPL has not previously investigated. Finally, an
investigation can also be opened based on a request from the
jurisdiction itself if the basis for the request is supported by SPL
research and the other factors mentioned above.
Once an investigation is opened, SPL staff, along with its expert
consultants, meet with the jurisdiction to learn more about its police
operations; evaluates the agencies’ policies and procedures; reviews
and analyzes relevant agency data and records; and speaks with
police officers, union officials, community members, plaintiff’s
attorneys, and advocacy groups about areas of concern within the
department. SPL staff and experts also participate in ride-alongs with
7See DEP’T OF JUST., THE CIVIL RIGHTS DIVISION’S PATTERN AND PRACTICE
POLICE REFORM WORK: 1994–PRESENT 3 (2017). Since the issuance of that
report, SPL has opened investigations into the Springfield, Massachusetts;
Minneapolis, Minnesota; Louisville, Kentucky; and Phoenix, Arizona police
departments.

police officers, observe police trainings, and tour police facilities.
Because an investigation is thorough, comprehensive, and usually
wide-ranging—for example, the number of documents reviewed for an
investigation can easily range in the thousands, if not tens of
thousands—it typically takes many months to complete.
At the conclusion of an investigation, based on SPL’s
recommendation, the Assistant Attorney General for Civil Rights
determines whether (1) there is reasonable cause to believe that there
is a pattern or practice of conduct in violation of the Constitution or
federal law; (2) there is not a pattern or practice of conduct; or
(3) there is insufficient evidence to determine whether there is a
pattern or practice. To determine whether to recommend that there is
a pattern or practice, SPL staff considers several factors, including the
frequency of the violations, whether the violations evidence similar
patterns or trends, and whether the violations are more than just
sporadic acts and indicate the regular practice of the agency. If, based
on SPL’s recommendation, the Assistant Attorney General determines
that there is insufficient evidence to determine a pattern or practice,
SPL notifies the jurisdiction and closes the investigation. If, based on
SPL’s recommendation, the Assistant Attorney General concludes
there is reasonable cause to believe there is a pattern or practice, SPL
sends the jurisdiction a formal, public report detailing the steps it
took to complete its investigation and the evidence supporting its
conclusions. SPL then attempts to negotiate an agreement that
addresses the violations and deficiencies found.
B. Negotiation
Negotiations involve complex talks that could take months to
resolve. SPL speaks to community members, advocacy groups, police
officers, union members, and other interested stakeholders to
determine what they hope to see included in a reform agreement.
Based on that information, SPL drafts an agreement that is
specifically tailored to the jurisdiction and addresses the
constitutional deficiencies found there. The substance of the
agreement varies widely by jurisdiction and the violations found, but
most agreements require the jurisdiction to revise its policies, develop
or enhance its trainings, and create data systems that will improve
the way the agency functions and officers engage in their policing
activities. SPL works cooperatively with the jurisdiction during
negotiations, as its objective (and typically the objective of the
jurisdiction) is to begin the reform process as soon as possible.

Although there have been situations where litigation has been
warranted, 8 most cases have been resolved short of contested
litigation. Indeed, in some cases, SPL and the jurisdiction issue a
statement, called a “Statement of Intent” or “Agreement in Principle,”
that signals the parties’ intent to avoid litigation and reach a
negotiated agreement. The statement also sets forth a general
framework for negotiations.
Consistent with guidance from the Attorney General, in determining
whether a court-enforceable agreement is warranted, SPL looks at the
nature of the underlying violation, the nature and scope of the
proposed remedies, the Department’s interest in the form of the
resolution, and the public’s interest in the violation and the remedies. 9
SPL also has an interest in making sure that any monitor selected to
enforce the agreement is “independent, highly qualified, and free from
conflicts of interest.” 10 The Attorney General recently issued specific
recommendations on the use of monitors in future civil settlement
agreements and principles that monitors and their teams must abide
by to increase efficiency and efficacy. 11
8 See United States v. Town of Colorado City, No. 12-cv-8123 (D. Ariz. 2012)
(trial verdict for the Department resulting in court injunction and decree);
United States v. Johnson, No. 12-cv-1349 (M.D.N.C. 2012) (trial verdict for
Alamance County but reform agreement reached while case was pending
appeal); United States v. Maricopa County, No. 12-cv-981 (D. Ariz 2012)
(litigation to enforce court order requiring reforms); United States v. City of
Meridian, No. 13-cv-978 (S.D. Miss. 2012) (suit filed after city initially
declined to negotiate agreement); United States v. City of Columbus, No. 99-
cv-1097 (S.D. Ohio 1999) (suit filed but agreement later reached resolving
claims); United States v. City of Ferguson, No. 16-cv-180 (E.D. Mo. 2016)
(suit filed after city council initially rejected negotiated consent decree);
United States v. City of New Orleans, 12-cv-1924 (E.D. La. 2012) (suit filed to
compel compliance with negotiated and agreed-upon consent decree).
9 See Memorandum from the Att’y Gen. to Heads of Civ. Litigating
Components & U.S. Att’ys, Civil Settlement Agreements and Consent

Decrees with State and Local Government Entities at 3–4 (Apr. 16, 2021).
10 Id. at 4.
11 See Memorandum from the Att’y Gen. to Heads of Civ. Litigating
Components & U.S. Att’ys (Sept. 13, 2021) (Civil Settlement Agreements and
Consent Decrees with State and Local Government Entities).

C. Enforcement
Enforcement of an agreement often spans years. Agreements are
expected to last up to five years or even longer, depending on the
constitutional violations found and the scope of the remedies. The
agreements are typically court-enforceable settlement agreements
overseen by an independent monitor, although some agreements are
monitored by SPL. The independent monitor is selected by the parties
and, for matters where there is a court-enforceable agreement,
approved by the court. Selected monitors have a wealth of experience
in policing and usually have a team of experts with backgrounds in
policing, data analysis, and community organizing who assist them in
their work.
The monitor’s primary responsibility is to observe and assess the
law enforcement agency’s progress in complying with the agreement
and to report to the court and the public on the jurisdiction’s efforts.
The monitor also provides much needed technical assistance to the
agency as it begins to adopt and implement reforms and serves as an
intermediary to the parties to help resolve any disputes before they
require court involvement.
Courts play an important role in enforcing agreements. Courts
typically hold regular status conferences to assess firsthand the
jurisdictions’ progress in complying with the agreements. Courts also
hold public hearings on various matters, such as monitor selection, for
example, to ensure that the public has an opportunity to fully
understand agreement-related processes and weigh in on issues of
public concern. Finally, courts serve as the final arbiters for any
disputes that the monitors and parties are unable to resolve.
Once the jurisdiction has substantially complied with the terms of
the agreement, the agreement ends. The monitor helps determine
whether the jurisdiction has reached substantial compliance by
conducting compliance reviews and outcome assessments. Compliance
reviews measure the jurisdiction’s compliance with each of the
provisions of the agreement and are typically done by audit, although
some qualitative analysis is done as well. Outcome assessments
measure whether implementation of the agreement by the jurisdiction
has resulted in constitutional policing. The outcome assessments
create a second method for assessing compliance—meaning that a
jurisdiction can fail to meet substantial compliance under the
compliance review mechanism but can still be found in substantial
compliance if it demonstrates by its outcomes that the jurisdiction

reduced or eliminated the practices that gave rise to the constitutional
violations.
III. The effect of section 12601 on the

policing landscape
SPL’s work in this area has been instrumental in changing the
practices of several police departments across the country. Some
recent examples include:
A. Seattle
In March 2011, SPL and the U.S. Attorney’s Office for the Western
District of Washington opened a joint investigation into the Seattle
Police Department (SPD). In December 2011, SPL and the U.S.
Attorney’s Office (USAO) found that SPD engaged in a pattern or
practice of excessive force. The investigation also raised concerns that
certain SPD practices, particularly those related to pedestrian
encounters, could result in discriminatory policing against minority
communities. In September 2012, the parties entered into a consent
decree. 12 The consent decree calls for the city and SPD to make
reforms related to use of force, crisis intervention, stops and
detentions, bias-free policing, supervision, and its external
accountability system. 13 The court has found that the city is in
compliance with all of the enumerated consent decree provisions.
Compliance reviews continue, however, to assess whether consent
decree compliance was sustained during the protest events of 2020.
B. New Orleans
In May 2010, SPL opened an investigation into the New Orleans
Police Department (NOPD). In March 2011, SPL found that NOPD
engaged in a pattern or practice of excessive force; unlawful stops,
searches, and arrests; and gender discrimination. SPL’s investigation
also raised serious concerns about discriminatory policing based on
race, national origin, and LGBT status. In January 2013, the parties
entered into a consent decree. 14 The consent decree requires the
12 See Consent Decree Regarding the New Orleans Police Department, City of
New Orleans, No. 12-cv-1924, ECF No. 159-1.
13 Id.
14 See Settlement Agreement and Stipulated [Proposed] Order of Resolution,
United States v. City of Seattle, No. 12-cv-1282 (W.D. Wash July 27, 2012),
ECF No. 3-1; Stipulation and Order for Modification and for Entry of

NOPD to make reforms related to the use of force; crisis intervention;
investigatory stops and detentions, searches, and arrests; custodial
interrogations; bias-free policing; community engagement; training;
supervision; and accountability. 15 The city is currently in compliance
with the use of force, crisis intervention, and custodial interrogations
provisions of the consent decree.
C. Ferguson
In September 2014, SPL opened an investigation into the Ferguson
Police Department (FPD). In March 2015, SPL found that FPD
engaged in a pattern or practice of excessive force; unlawful stops,
searches, and arrests; and discriminatory policing. SPL further
determined that FPD and the Ferguson municipal court focused on
revenue generation at the expense of public safety and constitutional
law enforcement. In April 2016, the parties entered into a consent
decree. 16 The consent decree requires the city and FPD to make
reforms related to use of force; stops, searches, and arrests; bias-free
policing; and ensuring due process and equal protection in the
prosecution and resolution of municipal charges 17. Compliance is still
underway.
D. Baltimore
In May 2015, SPL opened an investigation into the Baltimore Police
Department (BPD). In August 2016, SPL found that BPD engaged in a
pattern or practice of excessive force; unlawful stops, searches, and
arrests; and discriminatory policing against African Americans and
those with mental health disabilities. SPL also identified concerns
with the department’s accountability system and its handling of
sexual assault investigations and transport practices. In January
2017, the parties entered into a consent decree. 18 The consent decree
Preliminary Approval of the Parties’ Settlement Agreement and Stipulated

Order of Resolution, City of Seattle, No. 12-cv-1282, ECF No. 13.
15 Settlement Agreement and Stipulated [Proposed] Order of Resolution,
supra note 14; Stipulation and Order for Modification and for Entry of
Preliminary Approval of the Parties’ Settlement Agreement and Stipulated
Order of Resolution, supra note 14.
16 See Consent Decree, City of Ferguson, No. 16-cv-180, ECF No. 41.
17 Id.
18 See Consent Decree, United States v. Police Dep’t of Baltimore City, No.
17-cv-99 (D. Md. Jan. 12, 2017), ECF No. 2-2.

requires the city and BPD to make reforms related to use of force;
crisis intervention; stops, searches, and arrests; bias-free policing;
misconduct investigations and discipline; handling of reports of sexual
assault; and transportation of persons in custody. Since the entry of
the consent decree, BPD has finalized almost all of the policies on the
topics listed above and satisfied the majority of the threshold
requirements regarding responding to individuals in crisis. The
department has also made great strides in developing and delivering
training related to use of force; stops, searches and arrests; and
responding to reports of sexual assault.
IV. The role of USAOs in section 12601

matters
The involvement of USAOs in the enforcement of section 12601 is
varied but, in many cases, significant. The degree to which a local
USAO is involved is largely up to the discretion of the USAO itself.
The decision of how much involvement a USAO may have in any
section 12601 matter is often influenced by the following factors:
• the degree to which the U.S. Attorney desires his or her office
to be directly involved in the matter;
• the amount of time and resources that the USAO can afford to
devote to the matter;
• the USAO’s relationship with the community and the
community’s desire for local involvement (for example, in
Seattle, 34 community groups wrote to both SPL and the local
USAO requesting the opening of an investigation); and
• the USAO’s relationship with local law enforcement and the
potential impact on that relationship from participation in the
section 12601 matter.
Regardless of the extent of their role in the matter, however, the
input of USAOs is important. In some districts with active section
12601 matters, the USAO acts predominantly as local counsel,
providing information and guidance on local court rules and practices.
In others, the USAO additionally serves to connect SPL with
important stakeholders, including relevant community groups and
leaders, and provides local insight regarding relevant political issues
and cultural norms. In others, like the Seattle Police Department
Consent Decree, the USAO serves as a full partner, engaging in an

equal share of the work in the investigation, negotiation, and
compliance monitoring (or litigation) phases of the case. In Seattle,
this partnership entailed the dedication of one to two Assistant U.S.
Attorneys (AUSAs) in addition to the one to two SPL attorneys staffed
on the case. The attorneys from both groups then worked in constant
partnership and lock step with one another, including at least weekly
calls to coordinate efforts. Both the USAO and SPL attorneys
attended meetings, participated in drafting, and appeared before the
court for hearings in the matter. The benefits of this shared work have
been invaluable. The AUSAs provide not only local perspective and
relationships, but also an ability to be on the ground for in-person
attendance at relevant meetings and events and to manage local press
inquiries and messaging. In turn, SPL attorneys provide the national
perspective and subject-matter expertise in the arena of section 12601
law and practice. SPL attorneys are also able to connect people
working on the matter with relevant people in other jurisdictions who
have faced the same or similar issues.
SPL’s work continues to move forward, with investigations recently
opened into the Minneapolis, Minnesota; Louisville, Kentucky; and
Phoenix, Arizona police departments. SPL will continue to use section
12601 to address systemic misconduct and create lasting change
within law enforcement agencies.
V. Title VI
Title VI of the Civil Rights Act of 1964 19 is another tool that the
Department uses to address systemic police misconduct, often, but not
always, in concert with section 12601. Title VI prohibits
discrimination based on race, color, and national origin in entities that
receive federal financial assistance. 20 Title VI is founded on the
premise that people of all backgrounds contribute to the public funds
that subsidize law enforcement agencies (LEAs) and other state and
local government entities. Because these “recipients of federal
financial assistance” benefit from public funds, Title VI attaches a
nondiscrimination requirement to the receipt and use of such funds.
Most state and local LEAs receive federal financial assistance from
19 Civil Rights Act of 1964 tit. VI, 42 U.S.C. § 2000d to 2000d–4a.

20 42 U.S.C § 2000d.

the Department, 21 and many also receive funding from other federal
agencies, 22 such as the Departments of Homeland Security,
Agriculture, and Defense. With so many LEAs receiving federal
assistance, both from the Department and other federal agencies,
Title VI confers broad jurisdiction to address race and national origin
discrimination in policing.
A. Jurisdiction and coordination
Each federal agency that provides grants or other federal financial
assistance is responsible for enforcing Title VI. With more than two
dozen agencies implementing the statute, the Department is charged
with ensuring consistent interpretation, government-wide
coordination, and leadership under Executive Order 12,250. 23 This
Executive Order provides for the consistent and effective
implementation of Title VI and other laws prohibiting discrimination
in programs and activities receiving federal financial assistance. This
government-wide coordination and leadership responsibility has been
further delegated to the Division and, specifically, to the Federal
Coordination and Compliance Section (FCS). Given its unique role
under Title VI, FCS plays an integral part in advancing the Division’s
Title VI policing work and often works in concert with the SPL
Section, USAOs, the Office of Justice Programs (OJP), and other
funding components. FCS carries out its Title VI functions in a
number of ways, including by leading or serving as co-counsel on
Title VI investigations and enforcement activities, providing legal
counsel on Title VI interpretation, through regulatory and sub-
regulatory action, and by referring Title VI matters to the appropriate
office.
21 See e.g. DEP’T OF JUST., FY 2017 BUDGET REQUEST: STATE, LOCAL AND
TRIBAL ASSISTANCE,
https://www.justice.gov/jmd/file/820816/download#:~:text=By%20funding%20
over%2013%2C000%20of,enforcement%20agencies%20practicing%20commun
ity%20policing.
22 E.g. Police departments in the US: Explained, USAFACTS,
https://usafacts.org/articles/police-departments-
explained/?gclid=EAIaIQobChMI5KCSi8O78gIVw9SzCh0pIwfQEAMYASAA
EgJuoPD_BwE (last visited Dec. 2, 2021).
23 Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980).

Title VI matters come to our attention in a number of ways: through
complaints filed directly with FCS 24 or via the Division’s complaint
portal, 25 coordination meetings with other Department sections and
components, information from our USAO or federal agency partners,
outreach to community organizations, news articles or other publicly
available information, and similar mechanisms.
Beyond its broad Title VI leadership role under Executive Order
12,250, FCS also plays a lead role in the implementation of Executive
Order 13,166, 26 which focuses on overcoming language barriers in
both federal operations as well as in federally funded activities. These
dual roles of Title VI and language access legal experts put FCS
squarely at the nexus of policing and language access, 27 with the
Section serving as a resource for both federal agencies and law
enforcement communities on overcoming language barriers in police
work.
Apart from language access and intentional race, color, and national
origin discrimination, the Department has the authority to pursue an
array of other claims under Title VI, including discrimination that has
a discriminatory impact, retaliation, and access to data. Of note, while
Title VI intent claims can also be enforced through private action,
disparate impact cases can only be enforced by federal funding
agencies 28 following the Supreme Court’s decision in
Alexander v. Sandoval. 29
B. Title VI enforcement and case examples
Once in receipt of a complaint or information alleging a Title VI
violation, FCS conducts a funding check to determine which agency
(or agencies) or components have jurisdiction. Within the Department,
funding components include OJP, the Money Laundering and Asset
Recovery Section of the Criminal Division (MLARS), the Office on
24See NOTICE ABOUT INVESTIGATORY USES OF PERSONAL INFORMATION, DEP’T

OF JUST., CIV. RIGHTS DIV. (n.d.),
https://www.justice.gov/file/1259441/download.
25 U.S. DEP’T OF JUST. CIV. RIGHTS DIV., https://civilrights.justice.gov/#report-
a-violation.
26 Exec. Order No. 13,166, 65 Fed. Reg. 50,121 (Aug. 11, 2000).
27 See State and Local Government, DEP’T OF JUST, https://www.lep.gov/state-
local-government (last visited Dec. 2, 2021).

28 DEP’T OF JUST., TITLE VI LEGAL MANUAL § VII(B) (2021) [hereinafter TITLE
VI LEGAL MANUAL].
29 532 U.S. 275 (2001).

Violence Against Women, and the Office of Community Oriented
Policing Services (COPS). All of these components provide funding to
state and local LEAs, among other entities, and several have their
own internal offices that receive complaints and undertake
investigations, monitor compliance with the terms of funding, or both,
such as OJP’s Office for Civil Rights 30 and the Grants Monitoring
Division of COPS. 31 Given the potential for multiple offices to have
coinciding jurisdiction in Title VI matters, FCS and the funding
components routinely coordinate with each other to determine where
a complaint investigation is best assigned. FCS similarly coordinates
with other federal agencies on jurisdictional matters. Consistent with
implementing regulations, internal Departmental memoranda, and
occasional agreements with other agencies, FCS handles an array of
Title VI investigations itself, often in partnership with USAOs.
Though USAOs do not have standalone authority, that has not served
as a barrier to their full participation as co-counsel in Title VI
matters. 32
As noted earlier, a vast array of conduct is regulated by Title VI.
Allegations in the policing context include discriminatory
enforcement, discrimination in investigative activities (crediting
witness accounts in a discriminatory manner and/or unequal
treatment of complainants); following up on internal affairs
complaints in a discriminatory manner; retaliating against
complainants; discriminatory hiring in the context of Title VI
employment grants; language accessibility concerns in investigative
interviews or in administering advice of rights; refusal to provide the
federal granting agency access to documents and information; and
many others. Just as Title VI encompasses an array of potential
claims, so too does it permit a range of potential remedies, allowing for
significant flexibility in fashioning a remedy that fits the conduct of
concern. Many cases result in settlement agreements that
contemplate policy and procedural revisions, training, data collection,
and reporting. While remedies can be broad, they are also scalable
30 Dep’t of Just., Office for Civil Rights, Title VI of the Civil Rights Act of
1964,
https://www.ojp.gov/sites/g/files/xyckuh241/files/media/document/ocr_titlevi.p
df.
31 DEP’T OF JUST., GRANT MONITORING STANDARDS AND GUIDELINES FOR ALL
COPS GRANTS AND COOPERATIVE AGREEMENTS (2014).


and can be tailored to specific issues of concern—for example, 911
dispatch procedures; officer training; data collection; hiring
procedures (in the case of employment grants); language access
procedures; providing the federal granting agency with access to
documents and information as required by Title VI implementing
regulations; or to settle concerns limited to discrete enforcement areas
like domestic violence investigations. Remedies can also include
damages in select situations; however, compensatory damages are
generally not available for claims based on an agency’s disparate
impact regulations. Finally, agency enforcement can also result in
limitations on funding or termination of federal financial assistance.
Given the range of enforcement outcomes, there is no one-size-fits-
all approach in every Title VI policing matter. While certain matters
may be best addressed by conducting a full investigation that may
result in a letter of findings and further enforcement efforts or even
fund termination, others may require more limited follow up, such as
a telephone intervention, a statement of interest filing in private
litigation, or working with other components or agencies that have a
related open matter involving the same LEA. One constant in federal
agency Title VI investigations, however, is that Title VI requires an
attempt at voluntary resolution before litigation. 33 This voluntary
compliance focus helps to promote the significant flexibility in
addressing and resolving Title VI matters described above.
The following examples demonstrate some of the many possible uses
of Title VI in law enforcement cases but by no means cover the full
range of available options under Title VI. For more in-depth
information on Title VI jurisdiction, uses, case examples, and FCS’s
role, consult FCS’s Title VI page, 34 the recently revised FCS Title VI
Legal Manual, 35 or the Justice Manual section on FCS. 36
33 See, e.g., 28 C.F.R. § 42.106 (Department Title VI regulations) (“[e]ach

responsible Department official shall, to the fullest extent practicable, seek
the cooperation of recipients in obtaining compliance with this subpart and
shall provide assistance and guidance to recipients to help them comply
voluntarily with this subpart”).
34 Title VI of the Civil Rights Act of 1964, DEP’T OF JUST.,
https://www.justice.gov/crt/fcs/TitleVI (last visited Dec. 2, 2021).

35 TITLE VI LEGAL MANUAL, supra note 28.

1. Hazleton Police Department: policy change
without pattern or practice evidence
In 2014, FCS received a complaint against the Hazleton Police
Department (HPD) from a legal services organization in
Pennsylvania. The complaint alleged, among other issues, that a
Spanish speaking, limited English proficient (LEP) resident of
Hazleton, Pennsylvania, walked into police headquarters with his 12-
year-old son to report that the son was abused by his stepfather. HPD
did not provide an interpreter, and the father had to rely on his son,
the victim of the alleged abuse, to interpret.
Based on these allegations, FCS launched a Title VI investigation.
The investigation revealed that HPD, despite policing a jurisdiction
that is at least 22% Spanish speaking and LEP, had no policy on
communicating with LEP individuals and no officers fluent in
Spanish.
In accordance with Title VI voluntary compliance measures, FCS
approached the city to discuss these concerns and negotiated a policy
and standard operating procedures directly with the HPD Chief, with
counsel’s consent. 37 Because of this direct working relationship
between FCS and the HPD Chief, FCS was able to tailor the draft
policy to address the Chief’s stated concerns and build in flexibility for
the high LEP/small city context. The policy also benefited from
community input, including interpreted feedback from the Spanish
speaking population in Hazleton.
Unique to Title VI, recipients must agree to certain
nondiscrimination obligations as a condition of receiving federal
financial assistance. These conditions can serve as catalyst in
encouraging voluntary compliance, and FCS has worked with funding
components to encourage compliance by directing recipients to review
their agreements.
2. Padilla v. NYPD: Targeted Department
involvement in private Title VI litigation leads to
reform
Apart from complaint investigations brought by the Department,
another mechanism for harnessing Title VI compliance in the policing
context is through targeted Department involvement in private
37Press Release, Dep’t of Just., Justice Department Settles Investigation into

Language Barriers in the Hazleton Police Department (May 28, 2021).

litigation, as demonstrated by the Padilla matter. In that case, Legal
Services of New York City filed a civil action alleging that the NYPD
failed to overcome language barriers in interactions with LEP
individuals seeking police assistance. 38 Specifically, the plaintiffs
alleged that responding officers often relied on abusive spouses who
spoke English and ignored the accounts of (often female) LEP victims
of domestic abuse and other crimes. 39 In several incidents, officers
arrested the LEP victim without even attempting to communicate in
the individual’s primary language. 40 Plaintiffs’ complaint alleged
violations of Title VI, the Safe Streets Act, and the Equal Protection
Clause. 41
The Department filed a Statement of Interest (SOI) to clarify,
among other things, that, under Title VI, language-based
discrimination is national origin discrimination. 42 The SOI went on to
point out that the Department had made the NYPD aware of
continuing problems in its interactions with LEP individuals, thereby
putting the NYPD on notice, and that a failure to correct these
problems despite having received notice may be proof of an intent to
discriminate. 43 Soon after the Department filing, the parties requested
a stay of the proceedings to commence settlement negotiations before
an EDNY Magistrate Judge, with the Department participating. The
negotiations resulted in significant reforms to the NYPD’s policies,
procedures, and training related to interactions with LEP
individuals. 44
38 Second Amended Complaint and Demand for Jury Trial, Padilla v. City of
New York, No. 13-cv-00076 (E.D.N.Y. Sept. 12, 2013), ECF No. 33.
39 Id.
40 Id.
41 Id.
42 Statement of Interest of the U.S. Regarding Defendants’ Motion to Dismiss,
Padilla, No. 13-cv-00076, ECF No. 41.

43 Id. at 23–24.
44 Press Release, City of New York Police Dep’t,, NYPD and Legal Services
NYC Announce New Language Access Policies (May 24, 2017).

3. Maricopa County Sheriff’s Office and Montgomery
County Police Department: Title VI as a tool to
collect and analyze data
As foreshadowed at the beginning of this discussion, Title VI can be
an effective tool to obtain data and access to evidence in cases
involving discrimination by recipients of federal funds, either as a
standalone claim or in tandem with section 12601 or other statutory
or constitutional claims.
For example, in 2009, the Division launched an investigation of the
Maricopa County Sheriff’s Office (MCSO), a recipient of federal
financial assistance, alleging that MCSO violated the national origin
nondiscrimination provisions of Title VI in its treatment of LEP
Latino inmates, in addition to claims under 42 U.S.C. § 14141 (now
12601) and the Fourth and Fourteenth Amendments. In March 2009,
the Division sent MCSO an initial data request consisting of
approximately 51 requests for documents. MCSO responded in May
with a partial production responsive to 3 of the United States’ 51
document requests. The United States followed up with several
additional document requests, and in response, MCSO informed the
United States that it would not respond further to any requests for
information. On July 7, 2009, then-MCSO Sheriff Joe Arpaio held a
press conference and announced publicly that MCSO would not
cooperate with the United States’ investigation, either by providing
documents or permitting interviews with personnel.
The Department’s Title VI implementing regulations (like the Title
VI implementing regulations of other federal agencies) require that
recipients of federal financial assistance provide the Department with
access to information, personnel, and facilities. The provision states:
“Access to sources of information. Each recipient shall permit access
by the responsible Department official or his designee during normal
business hours to such of its books, records, accounts, and other
sources of information, and its facilities, as may be pertinent to
ascertain compliance with this subpart.” 45
Similarly, the assurance agreements applicable to recipients of
Department funding also require cooperation from recipients. 46 Under
4528 C.F.R. § 42.106(c).

46Dep’t of Just., Certified Standard Assurances,
https://www.ojp.gov/sites/g/files/xyckuh241/files/media/document/standardass
urances.pdf.

a standard assurance, a recipient agrees that “[i]t will give the
awarding agency or the [Government Accountability] Office, through
any authorized representative, access to and the right to examine all
paper or electronic records related to the financial assistance.” 47
In response to MCSO’s refusal to respond to the United States’
document requests, FCS and SPL filed a lawsuit demanding
enforcement of the access provision. 48 MCSO ultimately complied, and
in June 2011, the United States and MCSO entered into an agreement
to resolve the Title VI action alleging a failure to cooperate. 49 Title VI
and other funding statutes, therefore, provide a unique and useful tool
to ensure access to LEA records and information.
In other circumstances, Title VI investigations have led to policing
reform and data collection. For instance, in 2000, the Department
entered into an agreement with the Montgomery County, Maryland,
Police Department (MCPD) to resolve a Title VI and Safe Streets Act
investigation of more than 150 complaints from individuals alleging
that MCPD officers racially discriminated against African Americans
by, among other things, selecting individuals for traffic stops,
pedestrian stops, and searches based on biased criteria; failing to
adequately receive, investigate, and monitor complaints of
discrimination filed by nonwhites; engaging in excessive use of force;
and displaying discourteous conduct. 50 Following an investigation of
several years, the Department team shared their findings and
recommendations with the MCPD and the Montgomery County
Fraternal Order of Police and negotiated a voluntary compliance
agreement, which included traffic stop data collection and analysis,
among other provisions. 51 Of note, the MCPD resolution was
significant for being the Department’s first negotiated police
misconduct settlement to include a police union as a party to the
resolution.
47 U.S. Off. Mgmt. & Budget, Standard Assurance Form,

https://omb.report/icr/201907-1121-004/doc/93558101.pdf (OMB Approval
No. 1121-0140).
48 Complaint, United States v. Maricopa Cnty., No. 10-cv-01878 (D. Ariz.
Sept. 2, 2010), ECF No. 1.

49 Agreement, Maricopa Cnty., No. 10-cv-01878, ECF No. 1.
50 Memorandum of Agreement between the Dep’t of Just, Montgomery Cnty.
Maryland, the Montgomery Cnty. Dep’t of Police, and the Fraternal order of
Police, Montgomery Cnty. Lodge 35, Inc. (Jan 14, 2000).
51 Id.

C. Why Title VI?
These cases, and others, demonstrate the versatility of Title VI as a
civil rights compliance tool, for example:
• Title VI applies whether there is just one or a handful of
allegations (as in Hazleton), or a multitude of allegations (as in
Montgomery County).
• It can be used to achieve isolated, specific outcomes (LEP access
in domestic violence cases, as in Padilla); to address a limited
issue such as training, complaint procedures, or community
messaging; or to accomplish broad, system-wide changes (often
in tandem with section 12601 or other applicable statutes), as in
the MCSO case.
• Title VI can be deployed to gain access to records and
information, as in the MCSO access litigation, and to drive
record keeping and analysis.
• Owing to its private right of action for intent claims, Title VI
envisions a role for communities and private parties to hold
systems accountable, while preserving a discrete onramp for the
federal government to participate in private litigation, as in
Padilla.
• Title VI can promote positive relationships between LEAs and
the federal government, as part of a voluntary compliance effort,
but it can also be harnessed, if necessary, to withdraw federal
funding or to accomplish civil rights objectives through litigation.
• State and local LEAs may be interested in voluntary compliance
under Title VI to head off the time, resource, and autonomy
concerns they may have with other enforcement options.
• LEAs are, in part, the architects of their own reforms, creating
an investment in their success and sustainability.
USAOs have played a key role in Title VI efforts by spotting Title VI
opportunities as a result of community engagement efforts; working
with FCS to develop prophylactic, proactive training for LEAs,
particularly on language access matters; and serving as full partners
on Title VI cases, including a current investigation where the Central
District of California is partnering with the Housing and Civil
Enforcement Section and FCS to bring a housing case aimed at

dismantling policing activities that support segregation. 52 USAOs
have therefore been integral to the Division’s efforts to deploy Title VI
in innovative ways and impact the direction and development of Title
VI law. As in section 12601 cases, the involvement of USAOs in Title
VI efforts is limited only by the extent to which a USAO wants to, or
can afford to, be involved. Also important to a USAO’s calculus may be
the fact that Title VI matters can resolve in any number of ways that
diverge from traditional litigation pathways.
This article discusses only a small fraction of the uses of Title VI. In
addition to FCS’s ongoing, robust docket of Title VI cases, other
federal agencies, as well as OJP’s Office of Civil Rights, also conduct
important Title VI enforcement work. FCS welcomes additional
opportunities to discuss Title VI collaborations with the USAO
community, Department funding components, and other federal
agencies.
VI. Conclusion
Enforcement of section 12601 and Title VI provide opportunities for
improving use-of-force and stop practices, putting measures in place to
address discriminatory policing, reforming policies and practices
regarding interactions with LEP individuals, and changing how LEAs
interact with the public. SPL and FCS look forward to continuing to
work with our partners in the Department to use section 12601 and
Title VI to address systemic misconduct and ensure greater
accountability and more effective policing nationwide.
52First Amended Complaint and Demand for Jury Trial, United States v.
City of Hesperia, No. 19-cv-02298 (C.D. Cal. Sept. 10, 2020), ECF No. 31.

About the Authors
Nicole Porter is a Trial Attorney with the SPL Section of the
Department and has focused on police accountability issues for most
of her 23-year legal career. Nicole graduated from Tennessee State
University and the University of Tennessee College of Law.
Christina Fogg was an Assistant U.S. Attorney with the U.S.
Attorney’s Office for the Western District of Washington. She also
served as the Office’s Civil Rights Coordinator for Civil Enforcement.
Bharathi Venkatraman is the U.S. Attorney’s Office Coordinator in
the Federal Coordination and Compliance Section (FCS) of the Civil
Rights Division. She has served in various positions with the Division,
including as a Trial Attorney and later Special Counsel for Trafficking
in Persons in the Criminal Section; Acting Deputy Chief in FCS; as
well as Special Assistant U.S. Attorney in DC. She has taught courses
at the National Advocacy Center and has previously written for the
U.S. Attorney’s Bulletin and Police Chief Magazine, among other
publications. She joined the Department under the Attorney General’s
Honors Program in 1996.


The Civil Rights of
Institutionalized Persons Act—
A Guide for Assistant United
States Attorneys
Michael E. Campion
Chief
Civil Rights Unit
District of New Jersey
Christopher N. Cheng
Trial Attorney
Special Litigation Section
A prisoner writes a U.S. Attorney’s office about excessive force in a
state prison. A patient in a mental health facility calls about not
receiving medications for a serious medical condition. A local
newspaper reports unsanitary conditions in a juvenile detention
center. A federal agent observes grossly overcrowded conditions in a
jail. An employee notifies a federal inspector general of patient abuse
in a state center for persons with developmental disabilities. All these
allegations could potentially fall under the Civil Rights of
Institutionalized Persons Act (CRIPA), 1 a civil statute that protects
institutionalized persons from systemic violations of their federal
rights. 2 This article provides a basic guide to the statute. Section I
discusses the scope of the statute and its procedural, certification
requirements. Section II discusses the ways a U.S. Attorney’s Office
can work with Civil Rights Division (Division) staff on CRIPA
matters.
1Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997–1997j.

242 U.S.C. § 1997a. The federal rights in question must be based on the United
States Constitution when CRIPA is the basis for an action against a jail,
prison, or other correctional institution. Id.

I. Introduction to the Civil Rights of
Institutionalized Persons Act
CRIPA authorizes the United States to seek injunctive relief against
a state, or a state political subdivision, when the jurisdiction engages
in a pattern or practice of violating the federal rights of persons held
in prisons, jails, juvenile detention centers, mental hospitals, facilities
for persons with developmental disabilities, public nursing homes, and
other custodial facilities. 3 The statute authorizes the United States to
file a new action in the name of the United States or intervene in a
private action involving institutional conditions. 4
A. CRIPA authority and scope of relief
The United States can seek CRIPA relief only for “pattern or
practice” violations of federal rights. 5
CRIPA does not create new substantive rights. The United States
can obtain injunctive relief only for violations of rights under the
Constitution or other federal law. The United States’ evidentiary
burden, however, is no higher than a private plaintiff’s burden. The
statutory language does not impose any additional proof requirements
besides those that already apply to a private action based on the same
fact allegations. 6
CRIPA only applies to institutions. The statute defines an
institution as any facility that “is owned, operated, or managed by, or
3 42 U.S.C. §§ 1997, 1997(a).

4 See S. REP. 96-416, at 8 (1979); H.R. REP. NO. 96-897, at 9 (1980) (Conf.
Rep.). Before CRIPA, the Department of Justice had already been litigating
institutional conditions cases for years, but a few courts cast doubt on
whether the Attorney General had inherent authority and standing to
enforce constitutional claims. In response, Congress passed CRIPA.
5 42 U.S.C. §§ 1997a, 1997c.
6 United States v. Pennsylvania, 863 F. Supp. 217, 218–220 (E.D. Pa. 1994).
The United States’ burdens may be lower than plaintiffs to the extent a legal
defense may be pre-empted by federal supremacy. See, e.g., United States v.
Cnty. of Los Angeles, 635 F. Supp. 588, 593–594 (C.D. Ca. 1986) (state law
pre-empted because application would obstruct or frustrate federal CRIPA
enforcement). But see United States v. State of Michigan, 868 F. Supp. 890
(W.D. Mich. 1994) (no federal right to inspect prison without state’s consent);
see also United States v. Erie Cnty., 724 F. Supp. 2d 357 (W.D.N.Y 2010) (no
heightened pleading requirements for CRIPA claims).

provides services on behalf of any State or political subdivision of a
State” and is used by persons with certain disabilities or conditions,
inmates, pretrial detainees, or juveniles. 7 Private facilities do not
count as institutions if the only nexus to the state is licensing or
funding from specific Social Security and supplemental security
income statutes. 8
The United States may seek any “such equitable relief as may be
appropriate to insure the minimum corrective measures necessary to
ensure the full enjoyment of such rights, privileges, or immunities.” 9
The United States is authorized to enforce a range of federal laws
conferring “rights, privileges, or immunities” on institutionalized
persons. For healthcare facilities, that includes rights created by
federal statutes, such as the Americans with Disabilities Act (ADA). 10
For prisons, jails, and other correctional facilities, however, CRIPA
authorizes equitable relief “insofar as such persons are subjected to
conditions which deprive them of rights, privileges, or immunities
secured or protected by the Constitution of the United States.” 11
Examples of such equitable relief include court-enforceable
injunctions and consent decrees requiring improvements to policies
and procedures, training, staffing, accountability, and physical plant.
7 42 U.S.C. § 1997. The Civil Rights Division, Special Litigation Section is the
unit that is typically responsible for CRIPA investigations and litigation in
the U.S. District Courts. As discussed in section II, U.S. Attorneys’ Offices
often work together with the Special Litigation Section on CRIPA
investigations and any resulting litigation. JUSTICE MANUAL 8-2.261. The
Special Litigation Section also has “pattern or practice” authority to
investigate police departments and other law enforcement agencies under
34 U.S.C. § 12601. Like with CRIPA, U.S. Attorneys’ Offices may investigate
police departments and law enforcement agencies in partnership with the
Special Litigation Section. JUSTICE MANUAL 8-2.262. The police misconduct
statute also covers juvenile justice agencies, so allegations about juvenile
incarceration can fall under both that statute and CRIPA.
8 42 U.S.C. § 1997(2). Basically, this provision excludes privately owned and
operated nursing homes from CRIPA.

9 42 U.S.C. § 1997a(a).
10 42 U.S.C. § 12101.
11 Id. The Prison Litigation Reform Act also limits the scope of relief in
prisoner cases. 18 U.S.C. § 3626.

The United States may also seek similar improvements through
voluntary remediation and private settlement agreements. 12
B. CRIPA procedures and certification requirements
To initiate a CRIPA lawsuit, the Attorney General must personally
sign the complaint and certify that the United States complied with
the statute’s procedural requirements. 13 To meet the certification
requirements, the United States typically provides at least two
written notices to the jurisdiction. Once the notices are given, the
Attorney General can make the certification required to initiate
litigation.
First, the United States gives the jurisdiction seven days’ notice
before commencing a formal investigation of an institution. 14 The
Assistant Attorney General for Civil Rights “retains final authority” to
approve commencement of a formal investigation. 15 After the
United States issues the investigation notice letter, a Department of
Justice (Department) team will review documents, interview
witnesses, and conduct a facility inspection. 16 The team usually
includes Department attorneys, staff, and independent experts
specially retained for the investigation. 17 If a jurisdiction does not
voluntarily cooperate with a CRIPA investigation, the United States
12 See, e.g., Special Litigation Section Cases and Matters, DEP’T OF JUST.,
https://www.justice.gov/crt/special-litigation-section-cases-and-
matters/download (updated Nov. 24, 2021).
13 42 U.S.C. §§ 1997a, 1997b, 1997c.
14 42 U.S.C. § 1997b. The notice of investigation is only required if the
United States files a regular complaint. If the United States seeks to

intervene in an existing, private lawsuit, the requirements are reduced. For
instance, the United States only needs to provide 15 days’ notice of the
alleged conditions that violate persons’ rights and the supporting facts.
15 JUSTICE MANUAL 8-2.261. The Assistant Attorney General can delegate her
authority, where appropriate. When a U.S. Attorney’s Office receives any

delegated authority, it still needs to coordinate with the Division.
16 For a short period, the Civil Rights Division used the term “Notice Letter”
when referring to the 49-day letter. Consistent with updated Division

practice and to avoid confusion, this article refers to the notice of a new
investigation as the “notice letter” and the 49-day letter as a “findings
report.” See Special Litigation Section Cases and Matters, supra note 12.
17 As discussed in more detail below in part II, a U.S. Attorney’s Office may
participate at this and other stages of a CRIPA case.

can subpoena records. 18 CRIPA also prohibits retaliation against
persons reporting unlawful conditions. 19
Second, the United States notifies the jurisdiction of the conditions
that violate persons’ rights, the facts giving rise to the alleged
conditions, and the minimum measures that, if taken, will resolve the
conditions. 20 Typically, the United States meets this requirement by
issuing a findings report that is based on the expert interviews, tours,
document review, and other information obtained over the course of
the investigation. Before initiating legal action, the United States
must give the jurisdiction at least 49 days’ notice of the alleged
conditions that violate the rights of institutionalized persons. In other
words, the United States must issue the findings report at least 49
days before filing a complaint. The 49-day period also gives the parties
time to discuss settlement or other voluntary remedies. 21 In practice,
if good faith settlement discussions are making progress, they can go
on for much longer than 49 days. 22
For a complaint initiating a new action, the Attorney General must
also specifically certify that the Department made a “good faith effort”
to consult with state officials regarding federal “financial, technical, or
other assistance,” which may help the state correct any violations, and
that “reasonable efforts at voluntary correction have not succeeded.” 23
For intervention, the Attorney General must certify “such
intervention by the United States is of general public importance and
will materially further the vindication of rights, privileges, or
18 42 U.S.C. § 1997a-1.
19 42 U.S.C. § 1997d. The statute also has various miscellaneous provisions,
such as requiring a report to Congress, requiring various disclaimers and
notices, and a section on prisoner grievance procedures. 42 U.S.C. §§ 1997e to
1997j.
20 42 U.S.C. §§ 1997b(a)(1), 1997c(b).
21 See also 42 U.S.C. § 1997b(a)(2)(B), (C). The Attorney General’s
certification indicates that there has been an “opportunity for informal

methods of conference, conciliation and persuasion” and that the Attorney
General is satisfied that the state has had “reasonable time to take corrective
action.”
22 For intervention, similar findings must be made at least 15 days before
filing the motion to intervene, and no motion may be filed “before 90 days
after commencement of the action” unless the court shortens or waives this
waiting period. 42 U.S.C. § 1997c(a).
23 42 U.S.C. § 1997b.

immunities secured or protected by the Constitution or laws of the
United States.” 24
In summary, CRIPA gives the United States the authority to seek
injunctive relief to address a range of unlawful conditions in state and
local institutions. While the Assistant Attorney General for Civil
Rights and Division staff have primary responsibility for enforcing
CRIPA, U.S. Attorneys’ Offices can also play an important role in
CRIPA cases. Division staff will work closely with Assistant U.S.
Attorneys (AUSAs) located in the same district as a targeted
institution or the offices of any responsible state officials. In doing so,
Division staff frequently partner with U.S. Attorney’s Offices to jointly
conduct CRIPA investigations, negotiations, monitoring of
settlements, and litigation, if necessary. Because of CRIPA’s complex
requirements, it is helpful to discuss in more detail how an AUSA can
participate at each stage of the CRIPA process.
II. Enforcing CRIPA: the critical role of

U.S. Attorneys’ Offices
U.S. Attorneys’ Offices can play a critical role in enforcing CRIPA. 25
This role may vary depending on the size, structure, and civil rights
experience of the U.S. Attorney’s Office. This section first discusses
how each office’s resources and civil rights practice can affect its
participation in CRIPA matters, and second, it addresses how AUSAs
can participate at each stage of the CRIPA process.
A. Civil rights practices at U.S. Attorneys’ Offices
Each U.S. Attorney’s Office can significantly contribute to enforcing
CRIPA. The civil rights experience of a U.S. Attorney’s Office,
however, may guide how an office allocates its resources to such cases.
In recent years, several U.S. Attorneys’ Offices created civil rights
units or sections. 26 These offices have tasked AUSAs and staff with
24 42 U.S.C. § 1997c(b)(1)(B).
25 JUSTICE MANUAL 8-2.100, 8-2.261.
26 See, e.g., Press Release, Dep’t of Just., Acting United States Attorney Mark
J. Lesko Announces Formation of Civil Rights Team in the Office’s Civil

Division (June 18, 2021); Press Release, Dep’t of Just., Maryland U.S.
Attorney’s Office Creates Civil Rights Unit to Prosecute Hate Crimes and
Violations of Federal Law and to Address Discrimination in Housing,
Education, and Other Sectors (Mar. 11, 2021); Press Release, Dep’t of Just.,

handling affirmative civil rights investigations and litigation. Many of
these offices partner with the Division on CRIPA matters.
Other U.S. Attorneys’ Offices are developing civil rights practices. 27
Their civil rights units are either relatively new, or the offices are still
considering the best structure for a civil rights practice within their
offices. Working on CRIPA cases allows their AUSAs to work closely
with Division personnel. CRIPA work can further enhance the
districts’ civil rights enforcement capabilities. It also gives office
personnel an opportunity to see what institutional reform cases
require in terms of resources, and it exposes those personnel to the
types of legal and administrative issues that arise in sensitive civil
rights matters that may be scrutinized at the highest levels of the
Department. The Division benefits from working with these offices, as
they provide local contacts and additional resources, including
energetic AUSAs who may be interested in working on significant civil
rights issues.
Still, other U.S. Attorneys’ Offices, especially smaller offices, do not
have fully dedicated civil rights units or sections. Although every U.S.
Attorney’s Office has a Civil Rights Coordinator assigned to liaison
with the Division, not every office has AUSAs who focus exclusively on
civil rights enforcement. Nonetheless, in many of those offices, Civil
Division AUSAs still pursue affirmative civil rights cases. Even if
these offices have limited resources they can devote to affirmative civil
rights cases, they can still partner with the Division on a CRIPA
matter by providing targeted support.
B. CRIPA enforcement by U.S. Attorneys’ Offices:
beginning to end (and everything in between)
Depending on the structure of a U.S. Attorney’s Office and available
resources, AUSAs can work on every aspect of a CRIPA investigation.
This section discusses multiple stages of a CRIPA case, the potential
role of AUSAs at each stage, and examples of such work.
U.S. Attorney Announces Establishment of Civil Rights Enforcement Unit

(Oct. 27, 2020); Press Release, Dep’t of Just., U.S. Attorney Ortiz Announces
Creation of Civil Rights Unit (Feb. 16, 2016).
27 Goldberger et al., Building a Civil Rights practice for Civil Enforcement in
a United States Attorney’s Office, 70 DOJ J. FED. L. & PRAC., no. 1, 2022, at
69.

1. The beginning: a pre-investigation review
As the primary federal law enforcement office in its district, a U.S.
Attorney’s Office may be the first to learn of concerns that may
warrant a CRIPA investigation. For example:
• a parent calls a U.S. Attorney’s Office’s civil rights hotline to
report that a county jail fails to provide appropriate mental
health care to her child or to other detainees;
• a federal agent may advise an AUSA of unlawful use of force at a
state prison;
• the local press may contact the U.S. Attorney’s Office for
comment on a report about horrific, unsanitary conditions at a
state psychiatric hospital;
• a county prosecutor may provide a tip to a civil rights AUSA that
correction officers at a local jail fail to prevent prisoner-on-
prisoner sexual abuse;
• during a community outreach event, a concerned citizen may
approach an AUSA to urge the office to examine allegations that
a juvenile detention system failed to keep its residents safe from
physical abuse by staff;
• community stakeholders may reach out to a civil rights AUSA to
express concern about alleged unlawful use of physical restraints
on individuals with developmental disabilities at state hospitals;
or
• a local advocacy group may advise a civil rights AUSA of a
lawsuit it filed that alleges a county jail violated the Constitution
through its use of race-based policies.
When receiving this type of information, a U.S. Attorney’s Office
may engage in a pre-investigation review to determine whether a full
investigation may be appropriate. 28 The review often includes
analyzing materials received from complainants and others, speaking
with complainants, and reviewing publicly available information. 29 No
28 JUSTICE MANUAL 8-2.110. If a U.S. Attorney’s Office is unable to conduct a

pre-investigation review, it should forward the complaint and other
information to the Special Litigation Section. Id.
29 Id.

one from the jurisdiction should be contacted at this pre-investigation
stage. AUSAs who have less experience with the statute should
consider contacting their Division colleagues as soon as possible. The
Division’s attorneys and staff may have suggestions on how to obtain
information, what information is most useful for justifying an
investigation, and relevant legal concerns. An office with more
experienced practitioners and a longer-standing civil rights practice
should still consult with the Division as soon as the office believes the
matter may generate a formal investigation. At this preliminary
stage, consultation does not have to be extensive. A few phone calls, e-
mails, and other informal communications may, however, help an
AUSA avoid some of the potential pitfalls that exist even at this stage
of a CRIPA case.
If the pre-investigation review suggests an investigation may be
warranted, the U.S. Attorney’s Office should reach out to the Division
to discuss next steps in more detail. 30 Where the U.S. Attorney’s Office
and the Division decide to partner, both offices should discuss the
parameters of the partnership, including AUSAs’ roles at each stage of
the process. 31 The level of involvement by an AUSA is often guided by
the structure of the U.S. Attorney’s Office (for example, whether it has
a dedicated civil rights practice) and whether it has resources
available to staff the matter. Division of responsibilities is determined
on a case-by-case basis. 32
In cases where the Division conducted a pre-investigation review,
the Division should notify the U.S. Attorney’s Office before initiating a
CRIPA investigation in the U.S. Attorney’s district. 33 When notified,
the U.S. Attorney’s Office and the Division should consult to
determine whether the offices will partner on the investigation and, if
so, each office’s role. 34
Before an investigation is formally opened, Department attorneys
must first seek authority to investigate from the Assistant Attorney
General for the Division. 35 In cases handled by U.S. Attorney’s Offices,
AUSAs may be tasked to prepare that recommendation and will work
with the Division in finalizing the recommendation to the Assistant
30 Id.
31 Id.
32 JUSTICE MANUAL 8-2.110, 8-2.261.
34 JUSTICE MANUAL 8-2.110, 8-2.261.


Attorney General. 36 In cases primarily handled by the Division, the
Division will prepare the investigation recommendation but will
typically seek the U.S. Attorney’s concurrence in that
recommendation.
2. The Investigation
The contours of a CRIPA investigation vary from case to case.
Nonetheless, most investigations include the following:
• a formal notice of investigation to the jurisdiction;
• requests for information (through document requests or a
subpoena) from the jurisdiction;
• document review and analysis;
• witness interviews;
• expert interviews and review; and
• a comprehensive site tour of the institution.
In cases where AUSAs are members of a CRIPA case team, AUSAs
typically share responsibility with Division trial attorneys in handling
these tasks. Where the U.S. Attorney’s Office is unable to fully
partner, AUSAs may still provide support to the Division trial
attorneys or handle specific investigatory tasks. The U.S. Attorney’s
Office and the Division should consult to clearly identify those tasks to
be handled by AUSAs and their staff.
3. After the investigation: findings report,
negotiation, and resolution
Not only do AUSAs participate in labor-intensive investigations,
they may also significantly contribute to every aspect of a CRIPA
matter. In most instances, where the U.S. Attorney’s Office
participated in an investigation, it will maintain the same level of
participation after a findings determination. In other words, an AUSA
who handled significant components of an investigation should expect
to be involved in drafting the findings report; settlement negotiations;
filing a civil action, if applicable; litigation and trial, if necessary; and
monitoring compliance with the resolution.
36 Id.

In cases where a U.S. Attorney’s Office is less involved during an
investigation, in appropriate cases, it could increase its involvement in
the later stages of the case. Because the U.S. Attorney’s Office may
have experience with the defendant, local practice, and the U.S.
District Court, the involvement of the U.S. Attorney’s Office may
enhance the Division’s enforcement efforts. While contested CRIPA
litigation is rare, AUSAs may be closely involved as local counsel. For
example, an AUSA may be at counsels’ table for the entire duration of
any bench trial, which can last several weeks.
4. Compliance enforcement
Work on a CRIPA enforcement matter does not end when the
parties reach a settlement or a judicial determination is reached after
trial. Department attorneys expend considerable time and resources
ensuring that a jurisdiction implements reforms and that the reforms
are sustainable. This stage of a CRIPA matter may include review of
revised policies and practices, witness interviews, additional site tours
and inspections, interacting with an independent monitor, and
participating in compliance hearings before the court. Where
compliance is not achieved, Department attorneys may engage in
post-agreement litigation to obtain additional court-ordered remedies,
including orders of contempt, appointment of special masters, and
other relief.
AUSAs on a CRIPA case team typically continue to work on
compliance enforcement. Because achieving compliance may take
several years, the U.S. Attorney’s Office should be prepared to assign
additional AUSAs to the matter if staffing changes become necessary.
If a U.S. Attorney’s Office was less involved in the investigation or
litigation stages, but it has the capacity to increase its partnership at
the compliance stage, it should consult with the Division to develop a
staffing plan.
5. Statements of interest
AUSAs may also draft statements of interest. Federal law
authorizes the Department to file a statement of interest in any
private litigation in state or federal court where the United States has
an interest in the issues before the court. 37
37 28 U.S.C. § 517.

Some private litigation has a significant impact on the
constitutional or statutory rights the Department protects in CRIPA
matters. Rather than intervene in the private litigation, a statement
of interest may be more appropriate to address the United States’
interests related to its enforcement of the federal rights protected by
CRIPA. 38
Where a U.S. Attorney’s office identifies a case it believes is
appropriate for the filing of a statement of interest, it should contact
the Division as early as possible to discuss sending a recommendation
to the Assistant Attorney General for Civil Rights for approval to do
so. 39 If approved, an AUSA may be tasked to draft the submission to
the court. If the AUSA is tasked to be the primary drafter, the
Division should review the statement of interest before it is filed.
Similarly, if the Division seeks to file a statement of interest, it should
discuss collaborating with the U.S. Attorney’s Office in the district
where the submission will be filed. 40
6. Recent examples of CRIPA enforcement by U.S.
Attorneys’ Offices
In recent years, several U.S. Attorneys’ Offices have partnered with
the Division on CRIPA investigations, litigation, and statements of
interest. The cases span the many CRIPA subject areas described in
this article and illustrate the variety of ways the offices can
participate in institutional reform cases. For example, in just the last
three years, U.S. Attorneys’ Offices have partnered with the Division
in taking the following actions under CRIPA:
• The District of New Jersey and the Middle District of Florida
participated in CRIPA investigations to protect the rights of
prisoners to be safe from staff sexual abuse. 41 In 2020, the
Department issued findings reports to New Jersey and Florida.
38 Id.; see also JUSTICE MANUAL 8-2.170(C).

39 JUSTICE MANUAL 8-2.170(C). Similarly, if a U.S. Attorney’s Office identifies
a state or federal appellate court matter that would be appropriate for an
amicus brief, it should send a recommendation to the Section Chief of the
Appellate Section. JUSTICE MANUAL 8-2.170(D).
41 Special Litigation Section Case Summaries, DEP’T OF JUST.,
https://www.justice.gov/crt/special-litigation-section-case-
summaries/download#EdnaMahan (updated Nov. 24, 2021).

In 2021, the District of New Jersey’s case resulted in a consent
decree with the State of New Jersey.
• The District of Massachusetts partnered with the Division in an
investigation of mental health treatment and solitary
confinement in Massachusetts’ prisons. In 2020, the Department
issued a findings report to the Massachusetts Department of
Correction, identifying systemic failures to provide adequate
mental health care and appropriate housing to prisoners in
mental health crisis. 42
• All of the U.S. Attorneys’ Offices in Alabama joined in a
statewide investigation of conditions in the Alabama men’s
prisons. They are presently in active litigation against Alabama
to remedy the state’s failure to protect prisoners from prisoner-
on-prisoner violence and sexual abuse and to enjoin the state
from continuing to subject prisoners to unlawful use of force and
unsafe and unsanitary conditions. 43
• The District of New Jersey joined an investigation of the
Cumberland County Jail. Earlier this year, the Department
issued a findings report that concluded that the Cumberland
County Jail violated the constitutional rights of prisoners by
failing to provide adequate suicide prevention and mental health
care. The letter included a finding that the jail failed to ensure
that inmates with opioid use disorder received medication-
assisted treatment. 44
• In 2019, the Middle District of Georgia and the Division filed a
statement of interest in a private federal action to set forth the
Department’s position concerning unlawful use of restrictive
housing with respect to prisoners with serious mental illness. 45
• The District of South Carolina participated in an investigation of
the Broad River Road Complex, a long-term juvenile
commitment facility. In 2020, the Department issued a findings
report that relied on CRIPA and the ADA. The Department cited
state officials for failing to protect youth from harm and
42 Id.
43 Id.
44 Id.
45 Id.

misusing isolation instead of adopting effective behavioral
management tools. 46
• In 2021, the Eastern District of Arkansas joined in the filing of a
statement of interest in support of protection and advocacy
agencies. The statement of interest supported the agencies’ right
to obtain state records pursuant to CRIPA and the Protection
and Advocacy for Individuals with Mental Illness Act of 1986. 47
• The Central District of California partnered with the Division in
an investigation of San Luis Obispo County Jail. In August 2021,
the Department issued a findings report that the jail violates the
constitutional rights of prisoners by, among other things, failing
to provide adequate medical and mental health care and using
excessive force. The report also found that the jail violates the
ADA by denying prisoners with mental health disabilities access
to services, programs, and activities because of their disabilities.
• The Eastern District of Virginia has worked closely with the
Division to monitor a consent decree governing conditions in the
Hampton Roads Regional Jail. The District was also involved in
the original investigation and settlement negotiations, which
resulted in an agreement to improve isolation and mental health
practices. 48
• All three U.S. Attorneys’ Offices in Louisiana are working with
the Division to investigate whether state prisons are detaining
prisoners beyond their release dates. 49
In addition to these matters from just the past few years, U.S.
Attorneys’ Offices across the country are actively partnering with the
Division on open CRIPA investigations, as well as compliance with
CRIPA consent decrees and settlement agreements.
46 Id.
47 Department of Justice Statement of Interest, Disability Rts. Ark., Inc. v.
Graves, No. 20-cv-01081 (E.D. Ark Feb. 10, 2021), ECF No. 18.
48 Special Litigation Section Case Summaries, supra note 41.
49 Id.

III. Conclusion
In summary, CRIPA provides the Department with an important
tool for addressing unlawful conditions in public institutions. A
United States Attorney’s Office can play an important role at each
stage of the CRIPA process. AUSAs and other office personnel have
worked on investigations, negotiations, litigation, and post-judgment
enforcement. The statute’s procedures and the underlying substantive
law can be complex, so communication between Department personnel
is well-advised.
About the Authors
Michael Campion became an Assistant U.S. Attorney in the District
of New Jersey in 2007. Since 2013, his practice has focused almost
exclusively on handling a wide array of affirmative civil rights
investigations and litigation. He is currently the Chief of the U.S.
Attorney’s Civil Rights Unit, a position he has held since the unit’s
inception in 2016.
Christopher Cheng has been a trial attorney with the Civil Rights
Division, Special Litigation Section, since 1993. He has worked on a
variety of CRIPA matters, including litigation over jail, prison, and
hospital conditions. He has led investigations of correctional facilities,
juvenile facilities, training centers, mental hospitals, and nursing
homes across the country.


The Employment Litigation
Section’s Sexual Harassment in
the Workplace Initiative and How
to Get Involved
Shayna Bloom
Trial Attorney
Jen Swedish
Trial Attorney
Julia Quinn
Trial Attorney
Through its enforcement of Title VII of the Civil Rights Act of 1964,
the Employment Litigation Section (ELS) of the Department of
Justice’s (Department) Civil Rights Division has long made it a
priority to redress sexual harassment in state and local government
workplaces. In late 2017, a national spotlight was placed on sexual
harassment through several high-profile cases and grassroots
movements. In 2018, seeing a need to put even greater emphasis on
combating harassment at work, ELS redoubled its efforts through the
creation of its Sexual Harassment in the Workplace Initiative (SHWI),
which uses both time-tested and newer approaches to more effectively
address and prevent sexual harassment in these environments. 1
1Several other sections of the Civil Rights Division also address sexual
misconduct within their jurisdictions. ELS coordinates with these sections
when appropriate, which include:
• The Criminal Section, which may bring criminal charges under

18 U.S.C. § 242 when an alleged harasser deprives victims of
constitutional rights while acting under color of law, that is, while
acting in the official capacity as a government actor. See Fara Gold,
2022 Update: Prosecuting Sexual Misconduct by Government Actors,
DOJ J. FED. L. & PRAC., no. 2 (forthcoming Mar. 2022); Fara Gold,

This article intends to introduce the reader to SHWI and to
encourage U.S. Attorney’s Offices (USAOs) to get involved. To provide
context for SHWI’s work, the article begins with an overview of ELS
and its enforcement authority under Title VII.
As described in more detail below, SHWI is aimed at preventing
workplace sexual harassment on multiple fronts. Since 2018, ELS has
successfully resolved several sexual harassment cases, obtaining over
$2.7 million in monetary damages and injunctive relief aimed at
lasting systemic change in several state and local government
workplaces. To ensure the success of ELS’s injunctive relief efforts, a
goal of SHWI is to identify best practices to prevent and correct sexual
harassment in state and local government workplaces. Through
SHWI, ELS also has engaged in outreach efforts, participating in
several events intended primarily to educate state and local
Investigating and Prosecuting Law Enforcement Sexual Misconduct

Cases, 66 U.S. ATT’YS BULL., no. 1, 2018, at 77.
• The Educational Opportunities Section and the Federal Coordination
and Compliance Section, which can enforce Title IX of the Education
Amendments of 1972 when sexual harassment occurs at a school,
college, or university receiving federal funding from the Department, or
in coordination with other federal agencies that fund the institution (a
discussion of Title IX is available elsewhere in this issue).
• The Educational Opportunities Section, which can also protect students
from sex discrimination under Title IV of the Civil Rights Act of 1964
when sexual harassment occurs at a public school.
• The Special Litigation Section, which has authority under the Civil
Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, as well as
34 U.S.C. § 12601, to protect inmates or residents of jails, prisons,
juvenile facilities, mental health facilities, nursing homes, and facilities
for people with intellectual or developmental disabilities, as well as
those who encounter the police.
• The Housing and Civil Enforcement Section, which targets sexual
harassment that violates the Fair Housing Act through its Sexual
Harassment in Housing Initiative (a discussion of that Initiative is
available elsewhere in this issue).
These collaborative efforts allow the Civil Rights Division to combat sexual
misconduct through multiple avenues, buttressing ELS’s work enforcing
Title VII.

government employers about their obligations under Title VII.
Importantly, ELS often partners with USAOs in its litigation and
outreach efforts, and this article concludes with ways that Assistant
U.S. Attorneys (AUSAs) can get more involved in SHWI.
I. Introduction to the Employment

Litigation Section
ELS is part of the Department’s Civil Rights Division. Initially,
ELS’s primary purpose was to exercise the Attorney General’s
enforcement authority under Title VII of the Civil Rights Act of 1964,
as delegated to the Assistant Attorney General for Civil Rights. Later,
ELS’s docket expanded to include other areas, including the
enforcement of Executive Order 11,246, which prohibits employment
discrimination by federal contractors, and the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA), which
prohibits employers from discriminating based on military status or
obligation. 2 ELS is based in Washington, DC, but it maintains a
nationwide practice that relies heavily on its partnerships with
USAOs throughout the country.
II. ELS’s enforcement authority under

Title VII
ELS enforces Title VII of the Civil Rights Act of 1964, 3 as amended,
against state and local government employers. Title VII bars
employment discrimination based on race, color, sex (including
pregnancy, sexual orientation, and gender identity), national origin,
and religion. 4 It proscribes many forms of differential treatment based
on those protected categories, including hiring, termination, non-
promotion, and disparate terms and conditions of employment, as well
as retaliation for opposing a practice made unlawful under the Act. 5
In the 1980s and 1990s, the Supreme Court clarified that Title VII
2 An overview of USERRA is available elsewhere in this issue.

3 Civil Rights Act of 1964 tit. VII, 42 U.S.C. §§ 2000e to 2000e-17.
4 See Civil Rights Act of 1964 § 703, 42 U.S.C. § 2000e-2.
5 See id.

outlaws sexual harassment in the workplace, as discussed in section
III, infra. 6
ELS and the U.S. Equal Employment Opportunity Commission
(EEOC) share responsibility for the enforcement of Title VII. ELS is
authorized to seek remedies for employment discrimination by state
and local governments, as well as their agencies and political
subdivisions, while the EEOC has enforcement authority with respect
to private employers and the federal government. ELS’s enforcement
authority has considerable reach given the large number of public
sector employees in the United States: The most recent census data
suggests that over 15 million people in the United States work for
state or local government employers in education, law enforcement,
public health and safety, transportation, and other critical fields. 7
ELS has authority to enforce Title VII through two frameworks:
section 706 and section 707. 8 Section 706 provides that, when an
individual files a charge of discrimination with the EEOC, and the
EEOC finds reasonable cause to believe Title VII was violated but is
unable to conciliate the charge, the EEOC refers the charge to the
Attorney General. 9 ELS receives those charges and reviews them for
possible litigation. While these section 706 cases are filed in the name
of the United States, charging parties have an absolute right to
intervene and often do. ELS can recover monetary damages, though
not punitive damages, and wide-ranging injunctive relief in section
706 cases. When ELS declines to litigate a charge on behalf of the
United States, it issues a notice of right to sue letter, which gives the
charging party the ability to file a lawsuit in federal court based on
the charge.
Section 707 provides ELS with a different type of authority under
Title VII. Specifically, it gives the Attorney General self-starting
authority to initiate a full investigation into suspected discrimination,
6 See, e.g., Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986); Faragher v.
City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth,
524 U.S. 742 (1998).
7 See 2020 ASPEP Datasets & Tables, CENSUS BUREAU,
https://www.census.gov/data/datasets/2020/econ/apes/annual-apes.html (last
visited Dec. 17, 2021).
8 Civil Rights Act of 1964 § 706, 42 U.S.C. § 2000e-5; Civil Rights Act of 1964
§ 707, 42 U.S.C. § 2000e-6.

9 A Commissioner’s Charge may also be initiated by an EEOC Commissioner
and would follow the same process. Most charges are filed by private
individuals.

and where the Attorney General finds a pattern or practice of
discrimination in violation of the statute, the Department can file a
lawsuit without any underlying EEOC charge. Many of ELS’s
section 707 cases challenge employment practices that have disparate
impacts on protected groups, but others focus on systemic disparate
treatment.
Often, ELS brings section 707 disparate treatment cases under the
framework set forth in International Brotherhood of Teamsters v.
United States, 10 with bifurcated liability and damages phases. If ELS
can establish a standard operating procedure of discrimination in the
first phase, the United States is immediately entitled to prospective
injunctive relief, as well as a rebuttable presumption that all members
of a protected group were victims of the systemic discrimination. 11
Thus, section 707 is a powerful tool for addressing discrimination that
impacts large groups of applicants or employees and can be used to
redress a wide range of harms, including systemic sexual
harassment. 12
III. Prohibited sexual harassment under

Title VII
Although Title VII does not expressly prohibit harassment, the
Supreme Court has interpreted the statute’s prohibition on
discrimination to encompass several types of harassment, including
10 431 U.S. 324 (1977).

11 Id. at 361 (1977).
12 Some courts approach the Teamsters framework differently in sexual
harassment pattern-or-practice cases, so it is important to check the case law

before proceeding under this theory. See, e.g., Jenson v. Eveleth Taconite Co.,
824 F. Supp. 847, 876 (D. Minn. 1993) (failing to apply the rebuttable
presumption of liability during the damages phase and instead maintaining
plaintiff’s burden of persuasion to establish that each individual victim
subjectively perceived the workplace as hostile); Equal Emp. Opportunity
Comm’n v. Pitre, Inc., 908 F. Supp. 2d 1165, 1177–78 (D.N.M. 2012)
(applying Jenson’s Phase II approach); Equal Emp. Opportunity Comm’n v.
CRST Van Expedited, Inc., 611 F. Supp. 2d 918, 937–38 (N.D. Iowa 2009)
(same), Equal Emp. Opportunity Comm’n v. Int’l Profit Assocs., Inc., No. 01 C
4427, 2007 WL 3120069, at *17 (N.D. Ill. Oct. 23, 2007) (requiring, during the
damages phase, that the plaintiff establish that the harassment each victim
experienced was both objectively and subjectively hostile).

sexual harassment. 13 Since first recognizing the viability of a Title VII
sexual harassment claim in its unanimous decision in Meritor Savings
Bank v. Vinson, 14 the Court has fleshed out the legal standards for
determining when offensive conduct amounts to a Title VII violation
and when employers may be held liable for such actionable
harassment. The Court also has created an affirmative defense
available to employers under certain circumstances.
Unlawful sexual harassment is unwelcome workplace conduct that
is motivated by the victim’s sex and that either results in a tangible
employment action being taken against the victim (quid pro quo
sexual harassment) or is severe or pervasive enough to alter the terms
and conditions of the victim’s employment (hostile work environment
sexual harassment). 15
Anyone can perpetrate or experience sexual harassment. The
harasser can be of the same or a different sex or sexual orientation
than the victim. A harasser can be a supervisor, co-worker, or even a
third party, such as a customer of the employer.
IV. ELS’s sexual harassment in the

workplace initiative
Although ELS has always enforced Title VII’s prohibitions on sexual
harassment, its 2018 founding of SHWI represents a new effort to
address workplace sexual harassment on multiple fronts while using
new strategies.
One major reason SHWI is so important is that the state and local
government employers ELS has authority to sue under Title VII
present risk factors for sexually hostile work environments and
workplace harassment that are different from those usually seen in
the private sector. Research conducted by industrial/organizational
psychologists and other scientists have identified several major risk
factors for high rates of sexual harassment in the workplace. Three of
these are commonly found in state and local government workplaces:
(1) a high male-to-female ratio; (2) non-formal environments or
13 42 U.S.C. § 2000e-2; Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66–67,
73 (1986).
14 477 U.S. 57 (1986).
15 Quid pro quo sexual harassment is when an employee’s submission to, or
rejection of, unwelcome sexual conduct by an individual is used as a basis for

employment decisions affecting that individual. See 29 C.F.R. § 1604.11(a).

environments where employees embrace a casual or non-professional
attitude; and (3) workplaces where there is a lack of formal procedures
for reporting sexual harassment or a lack of a human resources
department.
These risk factors are common among ELS’s typical defendants,
including fire and rescue agencies, corrections departments, and law
enforcement agencies. For example, in many fire departments,
firefighters sleep, eat, and live together in the firehouse while they are
on shifts of 24 hours or more. And police officers may spend much of
their time in patrol vehicles or walking a beat together. These
non-traditional work environments can produce the type of
atmosphere where uncivil behavior and harassment can flourish if
employers do not take measures to prevent it.
These risk factors are borne out by surveys of women in fire and
rescue agencies and law enforcement agencies in particular. When
women enter a profession where they need to be included as “one of
the boys,” and being “one of the boys” translates into unprofessional
behavior, it can create a problematic situation. Some women put up
with a great deal of incivility and even illegal behavior to fit in.
Indeed, a recent survey of female firefighters found that nearly 40%
have experienced verbal harassment and sexual advances, almost 17%
have experienced hazing, and over 5% have been sexually assaulted
on the job. 16
Not only is harassment in public sector workplaces prevalent, but
women are also hesitant to report it. As this quote from a recent study
of female police officers illustrates, women may avoid reporting based
on these workplaces’ particular dynamics, where working with
partners or in teams is the norm: “When asked why Patricia did not
report [her sexual assault,] she explained she felt like she couldn’t
because he was her superior and she feared that she would quickly get
a negative reputation as either a ‘slut’ or a ‘bitch,’ look like a victim,
and would be ostracized in the department.” 17 Police officers also may
experience a workplace culture in which the chain of command is
16 Sara A. Jahnke, et al., The Prevalence and Health Impacts of Frequent

Work Discrimination and Harassment among Women Firefighters in the US
Fire Service, 2019 BIOMED RSCH. INT’L 1, 6 (2019).
17 Timothy C. Brown, et al., Playing the Game: A Qualitative Exploration of
the Female Experience in a Hypermasculine Policing Environment, 23 POLICE

QUARTERLY no. 2, 2020, at 161.

prioritized above all else, and if a supervisor is the harasser, that can
completely foreclose avenues for complaints.
A. SHWI’s components
SHWI has three distinct components aimed at combating sexual
harassment at state and local government employers: (1) a focus on
litigation opportunities; (2) the identification of best practices and
tools to prevent and correct sexual harassment; and (3) an outreach
effort to educate public employers and the public about their
obligations and rights.
1. Litigation
Litigation is a key aspect of ELS’s efforts to prevent and correct
workplace sexual harassment. Through litigation, ELS demonstrates
that it is ready and willing to bring employers into court when there is
evidence of workplace sexual harassment that could have been
stopped. This should put employers on notice that attention to sexual
harassment prevention is crucial.
Since its inception, the SHWI has yielded eight significant pieces of
litigation specifically aimed at combating workplace sexual
harassment. ELS also has opened many other investigations over the
years and will continue to do so wherever they arise. In many of these
matters, ELS partnered with USAOs, working together from
investigation to case resolution. The following examples are a few
publicly reported highlights of this imperative work.
United States v. Cumberland County, Tennessee
In March 2021, ELS and the USAO for the Middle District of
Tennessee brought suit against Cumberland County, Tennessee. 18 In
its complaint, the United States alleged that Michael Harvel, the
Director of Cumberland County’s Solid Waste Department, sexually
harassed 10 women he supervised, including both employees and
community service workers assigned to perform community service
through the court system or as a condition of probation. 19 This case
was based on charges of discrimination referred by the EEOC in
18 Complaint, United States v. Cumberland Cnty., Tenn., No. 21-cv-00012

(M.D. Tenn. Mar. 8, 2021), ECF No. 1.
19 Id. at 1, 3–9.

which the charging parties alleged that they and other women at the
Solid Waste Department were discriminated against based on sex. 20
The United States alleged that Harvel’s harassment constituted
quid pro quo sexual harassment and created a hostile work
environment. 21 Specifically, Harvel subjected two women to quid pro
quo sexual harassment when he made submission to his unwelcome
sexual advances and requests for sexual favors a condition for
receiving employment benefits. 22 Harvel further subjected all 10
women to a hostile work environment based on sex. 23 He regularly
touched them sexually without their consent, including kissing them
and groping their breasts, thighs, buttocks, and vaginas. 24 He also
made unwelcome sexual advances toward many of the women,
propositioning several for oral or penetrative sex, forcing one woman
to view or touch his penis, and threatening to rape another woman. 25
Harvel also regularly made offensive sexual remarks, commenting on
their bodies and talking about what he wanted to do to them
sexually. 26
Moreover, Cumberland County’s sexual harassment policy and
reporting procedures during the time of Harvel’s conduct were
woefully ineffective. Not only did the policy fail to require supervisors
to report harassment, but the majority of the women harassed did not
even know how to report their harassment. 27 Cumberland County
disseminated its sexual harassment policy and reporting procedures
only to full-time employees; 28 9 of the 10 women who Harvel harassed
never saw these materials because they were only part-time
employees or community service workers. 29 Further, Cumberland
County provided no training on sexual harassment whatsoever until
after the women filed EEOC charges. 30 Following the EEOC’s cause
finding, Cumberland County began efforts to improve its sexual
20 Id. at 2–3.
21 Id. at 10–11.
22 Id. at 11.
23 Id. at 10.
24 Id. at 6.
25 Id. at 6–7.
26 Id. at 7.
27 Id. at 8.
28 Id.
29 Id. at 4–6.
30 Id. at 8.

harassment policy and reporting procedures and to train its
employees.
The USAO actively partnered with ELS to investigate and resolve
the matter. An AUSA from the Middle District of Tennessee worked
with ELS attorneys during the investigation and settlement
discussions. She participated in interviews and negotiations and
collaborated on all court filings.
Shortly after the United States filed its complaint, the parties
entered into a consent decree providing for monetary and injunctive
relief. 31 Under the decree, Cumberland County paid the 10 women
approximately $1.1 million in compensatory damages. 32 As part of the
settlement, Cumberland County agreed to further reforms to continue
improving its sexual harassment policy, reporting procedures, and
anti-harassment training. 33 Cumberland County will be under the
consent decree until September 2022. 34
United States v. Mobile County Sheriff’s Office and Mobile County
Sheriff
In March 2021, ELS filed a complaint in the U.S. District Court for
the Southern District of Alabama, alleging that female corrections
officers working for the Mobile County Sheriff’s Office were regularly
subjected to severe and pervasive sexual harassment by male
inmates. 35 The complaint arose from EEOC charges filed by 12 female
correctional officers. 36 It alleges that male inmates at the Mobile
Metro Jail frequently engage in exhibitionist masturbation, known as
31 Consent Decree, United States v. Cumberland Cnty., Tenn., No. 21-cv-
00012 (M.D. Tenn. Mar. 24, 2021), ECF No. 15.

32 Id. at 5.
33 Id. at 4–7.
34 Id. at 9. In July 2021, the Criminal Section and the USAO for the
Middle District of Tennessee announced the unsealing of a nine-count

indictment charging Harvel with civil rights violations relating to his
sexual harassment of women at the Solid Waste Department. If
convicted, Harvel faces a maximum sentence of up to life in prison.
See Press Release, Department of Justice, Former Tennessee County Official
Indicted for Kidnapping and Sexual Assault (July 16, 2021).
35 Complaint, United States v. Mobile Cnty. Sheriff’s Off., No. 21-CV-00114
(S.D. Ala. Mar. 10, 2021), ECF No. 1; see also First Amended Complaint,
Mobile Cnty. Sheriff’s Off., No. 21-CV-00114, ECF No. 58.
36 First Amended Complaint at 2, Mobile Cnty. Sheriff’s Off., No. 21-CV-
00114, ECF No. 58.

“gunning,” and verbally harass female officers with sexual slurs and
propositions. 37 In its complaint, the United States also contends that
inmates threaten sexual violence against, and use sexually degrading
language towards, female correctional officers, and that male
employees are “rarely, if ever,” subjected to any of these harassing
behaviors. 38 The complaint alleges that, despite the employees’
hundreds of reports objecting to the harassment, the Sheriff’s Office
did not take the complaints seriously, instead, dismissing their
complaints and making comments such as: “You shouldn’t be looking
so cute,” “If I was an inmate, I’d gun you too,” and “Put on your big
girl pants.” 39 ELS’s complaint states that the charging parties and
similarly situated female Sheriff’s Office employees suffered physical
distress, emotional distress, and loss of sick leave when they were
compelled to take leave to avoid or escape the incessant sexual
harassment. 40 The case is currently in active litigation.
United States v. Orlando Fire Department
In March 2021, ELS and the USAO for the Middle District of Florida
brought a case against Orlando, Florida. 41 Charging party Dawn
Sumter served as an assistant chief in the Orlando Fire Department
(OFD). 42 She was the youngest assistant chief in the history of OFD, 43
and it was widely expected that she would one day be OFD’s first
female fire chief. Sumter contended that, after being hired by OFD,
she was subjected to sexual harassment by former OFD Fire Chief
Roderick Williams from at least 2015 to 2017. 44 At first, Williams and
Sumter did not see each other on a regular basis, and the harassing
incidents occurred three to five times per year. 45 They consisted of
long hugs that Williams would give Sumter whenever they met. 46
During the hugs, Williams “would . . . whisper comments into
Sumter’s ear such as ‘you look beautiful’ or ‘I wish I wasn’t
37 Id. at 6.
38 Id. at 8.
39 Id. at 17.
40 Id. at 7.
41 Complaint, United States v. City of Orlando, No. 21-CV-00565 (M.D. Fla.
Mar. 29, 2021), ECF No. 1.

42 Id. at 4.
43 Id.
44 Id. at 5.
45 Id.
46 Id.

married.’” 47 This behavior increased once Williams promoted Sumter
to assistant chief in 2017. 48 The hugs became more frequent and
persistent. 49 On two occasions shortly after her promotion, Sumter
could feel Williams’s erect penis when he hugged her. 50
Sumter filed a charge of discrimination with the EEOC. 51 Following
the filing of her charge, Williams and other senior OFD leadership
subjected Sumter to a retaliatory hostile work environment, including
moving her to a less prestigious position and cutting her duties in
half. 52 The cumulative effect of the hostile work environment
effectively “froze” her from decision making and eliminated her
chances of future promotion, including promotion to fire chief. 53
Following the EEOC’s determination of reasonable cause to believe
OFD violated Title VII, the United States conducted a supplemental
investigation and received authorization to file a complaint against
the city. Once again, the USAO was an active partner with ELS. In
particular, an AUSA from the Middle District of Florida took a leading
role in negotiations, including a lengthy mediation.
On March 29, 2021, the United States filed a complaint and a
motion to enter a consent decree in the U.S. District Court for the
Middle District of Florida 54 that resolved the United States’ complaint
and a separate complaint that Sumter filed. 55 Two days later, the
court entered the consent decree. 56 The consent decree provided for
$251,500 in compensatory damages to Sumter, as well as attorney’s
fees to Sumter’s counsel. 57
In terms of non-monetary relief, the consent decree also provided
broad-based injunctive relief that included: (1) The United States’
review of OFD’s anti-discrimination, anti-harassment, and
anti-retaliation policies; (2) the United States’ review of OFD’s
47 Id.
48 Id. at 6.
49 Id.
50 Id. at 6–7.
51 Id. at 8.
52 Id. at 9–13.
53 Id. at 14.
54 Consent Decree, City of Orlando, No. 21-CV-00565, ECF No. 3-1.
55 Complaint, Sumter v. City of Orlando et al., No. 20-CV-02347 (M.D. Fla.
Dec. 22, 2020), ECF No. 1.

56 Order Granting 3 Motion for Entry of Consent Decree, City of Orlando, No.
21-CV-00565, ECF No. 4.

57 Id. at 4.

complaint investigation procedures for complaints of sexual
harassment and retaliation; and (3) the United States’ review of
OFD’s anti-discrimination, anti-harassment, and anti-retaliation
training materials. 58 The United States retained an expert in EEO
complaint and investigation policies and procedures to assist with this
review and to make recommended changes for implementation of the
policies, complaint investigation procedures, and training materials
where necessary. The city must also submit quarterly reports to the
United States regarding complaints of sexual harassment and
retaliation. 59 The consent decree is scheduled to expire in October
2022. 60
United States v. Houston
In February 2018, ELS and the USAO for the Southern District of
Texas filed suit against the City of Houston. 61 Two female charging
parties alleged that they were subjected to a hostile work environment
based on sex when they were employed as firefighters with the
Houston Fire Department (HFD) at Station 54. 62 The women
experienced incidents such as men urinating on the walls, floors, and
sinks of the women’s bathroom and dormitory; someone disconnecting
the cold water to scald the women while they were showering; and
someone deactivating the female dormitory’s announcement speakers
so the women could not respond to emergency calls. 63 The charging
parties further alleged that the conduct culminated in death threats
and vulgar slurs written on the walls of their work and living spaces
at Station 54 and on their personal possessions. 64 This conduct
continued despite at least nine complaints to management. In
addition, other female firefighters who previously worked at Station
54 made similar complaints to HFD about sex-based discrimination
even before the charging parties worked there. 65 Unfortunately, HFD
did not take meaningful steps to stop the harassment. 66
58 Id. at 7–8, 14.

59 Id. at 19.
60 Id. at 23.
61 Complaint, United States v. City of Houston, No. 18-cv-00644 (S.D. Tex.
Feb. 28, 2018), ECF No. 1.

62 Id. at 1.
63 Id. at 7–8.
64 Id. at 9–10, 16.
65 Id. at 4–5.
66 Id.

The USAO was a full partner in the litigation of this case. Two
AUSAs from the Southern District of Texas served as key
collaborators at every turn. They took depositions, engaged in strategy
discussions, collaborated on filings, participated in settlement
negotiations, and provided other invaluable assistance on the case.
In late October 2020, shortly before trial was scheduled to begin, the
case settled. 67 The consent decree ordered by the court requires the
city to provide training to certain supervisory staff and provide proof
of compliance for up to 12 months. 68 The city also agreed to pay one
charging party $275,000 to resolve the claims of sex-based harassment
and retaliation stemming from her employment with HFD. 69 In a
separate settlement agreement executed in April 2020, the city agreed
to pay $67,500 to the other charging party to resolve similar claims
alleged by the United States in its complaint via a separate settlement
agreement. 70 The consent decree expired on December 5, 2021. 71
2. Efforts to improve remedies
In addition to a renewed emphasis on bringing cases, a goal of SHWI
is to improve the remedial measures that ELS uses to resolve its
cases. ELS’s regular practice involves implementing injunctive relief,
often under a court’s supervision, as a key part of any case or
settlement—even when a case is brought on behalf of a single
individual under section 706 of Title VII. To that end, an important
part of SHWI’s work is to ensure that such relief includes the most
efficient and successful approaches to preventing sexual harassment
in state and local government workplaces.
Members of SHWI are currently working to identify best practices to
prevent and correct sexual harassment at state and local government
employers. These efforts include synthesizing academic research in
fields such as industrial/organizational psychology, general
psychology, and human resources; using resources produced by the
67 Consent Decree, City of Houston, No. 18-cv-00644, ECF No. 191.

68 Id. at 4–6, 9.
69 Id. at 7.
70 Joint Motion for Dismissal with Prejudice, City of Houston, No. 18-cv-
00644, ECF No. 192; see also Houston City Council Meeting Notes, Agenda
Item #19 (Apr. 21, 2020),
https://houston.novusagenda.com/agendapublic/CoverSheet.aspx?ItemID=195
24&MeetingID=427 (last visited Dec. 16, 2021).
71 Order, City of Houston, No. 18-cv-00644, ECF No. 195.

EEOC Select Task Force on the Study of Harassment in the
Workplace; and applying the recommendations of experts and
practitioners. In addition to working to improve employers’ existing
anti-harassment policies, procedures, and trainings, ELS is
considering less traditional remedial measures to include in its
consent decrees. These include, for example, communication strategies
that demonstrate management’s prioritization of anti-harassment
efforts. ELS is also studying enhanced accountability measures that
ensure proportionate responses to substantiated harassment
allegations and that require managers and supervisors to play a role
in preventing and correcting harassment. ELS is also working to
identify data collection tools, such as climate surveys, to assess the
effectiveness of the injunctive relief agreed on in any settlement. The
end result will allow ELS to work more effectively with state and local
government employers to ensure systemic change.
3. SHWI outreach efforts
Finally, ELS has engaged in concerted outreach efforts to further
the goals of SHWI. Given the pervasive and widespread nature of
workplace sexual harassment and ELS’s dedication to preventing it,
ELS has sought out opportunities to speak with groups of all kinds. In
the past 3 years, ELS has conducted outreach on behalf of SHWI at 10
different events.
Because ELS understands well that USAOs, the EEOC, and
professional associations have on-the-ground connections that can
maximize outreach efforts, ELS has prioritized partnerships with
many such entities in initiating and pursuing outreach. For example,
ELS attorneys presented at the Louisville EEOC Office’s Technical
Assistance Program in August 2020, collaborated with the Phoenix
EEOC office to hold two different events in December 2020, and joined
an event in Puerto Rico hosted by the Miami EEOC office. Other
audiences have included local chapters of the National Employment
Lawyers’ Association.
The SHWI Roundtable in Houston, Texas, in 2019 is an example of
an outreach event where the USAO, EEOC, and ELS coordinated
closely from inception to presentation. The USAO brought its
thorough understanding of the Houston legal community and
interested stakeholders, making sure potential attendees from a
variety of perspectives were included. During the event, AUSAs, along
with EEOC officials and staff, discussed their own work in the
community to combat workplace sexual harassment. AUSAs also

described their own roles in United States v. City of Houston. ELS
attorneys presented on the goals of SHWI, as well as the substance of
Title VII”s prohibitions on sexual harassment and current awareness
about prevention and correction of harassment.
B. Get involved!
USAOs are valuable partners in SHWI’s endeavors to tackle sexual
harassment in state and local government employers, and ELS
welcomes the participation of AUSAs in its cases and outreach efforts.
AUSAs are the eyes and ears of the Department within their
Districts and, as such, can play an important role regarding the
Attorney General’s pattern or practice authority under section 707. If
AUSAs are aware of a state or local government employer that may be
engaging in a pattern or practice of discrimination under Title VII,
ELS encourages them to identify matters for potential investigation.
Upon identification of a matter to ELS, depending on the USAOs’
level of interest, their role in the matter can run the gamut. They can
simply refer the matter to ELS to investigate alone. They can let ELS
know of the matter and provide advice, as local counsel, as ELS
conducts the investigation. Alternatively, if USAOs are interested in
working closely with ELS, ELS welcomes their partnership in the
investigation and any resulting litigation. Even if a matter or case is
not initiated by a USAO, whenever ELS has an investigation or case
in the district, ELS will reach out to the USAO and offer to work
together. ELS values the input and advice of AUSAs as local counsel.
In addition, ELS particularly welcomes the participation of AUSAs
in its SHWI outreach efforts. If AUSAs already engage in outreach
efforts in their communities, ELS would be interested in supporting
these efforts. Members of SHWI could join outreach events to help
publicize SHWI, or AUSAs could discuss SHWI’s work during their
outreach efforts. If AUSAs do not regularly conduct outreach in their
communities but are interested in doing so, ELS can work with the
office to develop an outreach plan, contributing subject matter
expertise to the AUSAs’ familiarity with the key stakeholders in the
District.
To get more involved, please contact SHWI: [email protected].

About the Authors
Shayna Bloom, Jen Swedish, and Julia Quinn are trial attorneys
in the Employment Litigation Section. Ms. Bloom and Ms. Swedish
were original members of SHWI; Ms. Swedish and Ms. Quinn are
current SHWI members. ELS Deputy Chief Clare Geller manages
SHWI.


Protecting Students with
Disabilities from Sexual
Harassment in Education: Title IX
and More
Tiffany Cummins Nick
Trial Attorney (Detailee)/Assistant U.S. Attorney
Educational Opportunities Section/Middle District of Florida
I. Introduction
Title IX of the Education Amendments of 1972 1 is a federal civil
rights law that prohibits discrimination on the basis of sex in
education programs or activities that receive federal funding. 2 Sexual
harassment can constitute discrimination on the basis of sex. 3
Students with disabilities, particularly those who have difficulty
communicating, can be especially vulnerable to sexual harassment. 4
For example, in July 2020, the United States filed a statement of
interest in Doe v. Fulton County School District, a case brought on
behalf of a 14-year-old child with physical and mental disabilities who,
according to the complaint, was the victim of a series of sexual
assaults on a school bus that culminated in rape by one of her peers. 5
The victim relies on assistive technology to communicate and,
according to the complaint, had a monitor on her school bus to assist
her, but the school district elected to remove the monitor and leave
1 Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 235.

2 Education Amendments of 1972, tit. IX, 20 U.S.C. §§ 1681–1688.
3 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986).
4 See Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30026-01,

30,082 (May 19, 2020) (“Students with disabilities are less likely to be
believed when they report sexual harassment experiences and often have
greater difficulty describing the harassment they experience, because of
stereotypes that people with disabilities are less credible or because they may
have greater difficulty describing or communicating about the harassment
they experienced, particularly if they have a cognitive or developmental
disability.”).
5 U.S. Statement of Interest, Doe v. Fulton Cnty. Sch. Dist., No. 20-cv-00975
(N.D. Ga. July 7, 2020), ECF No. 26.

the school bus staffed by just the bus driver. 6 Thereafter, two male
students moved to her seat, groped her, and kissed her breasts. 7 Over
the course of approximately two weeks, the sexual conduct of one of
the two male students gradually escalated, including the exposure of
the victim and himself and oral sex, and culminated in the student
raping the victim on the school bus. 8 The school bus driver never
intervened to protect the victim and did not report either student to
the school district, other than to casually mention to another employee
that he had “noticed something” on his route the last day of the two-
week period of escalating misconduct. 9
Title IX, as well as Title II of the Americans with Disabilities Act 10
(ADA) and section 504 of the Rehabilitation Act, 11 all apply in this
situation. This particular victim is also a student with an
Individualized Education Program (IEP) under the Individuals with
Disabilities in Education Act 12 (IDEA), which assured her a “free and
appropriate public education” (FAPE). 13 While each of these laws has
distinct components, there are legal elements and relevant facts that
can, and often will, intersect and overlap. When reviewing an
allegation of sexual harassment involving a student with a disability,
it is essential to consider each of these statutes independently and
together. Regardless of whether a student with disabilities has an IEP
or 504 plan, the ADA and Rehabilitation Act protect the student
against civil rights violations, including harassment based on
disability.
U.S. Attorneys’ Offices may receive complaints or learn from local
press coverage about the harassment of students with disabilities.
This article provides a roadmap for identifying the salient facts and
6 First Amended Complaint at 5–7, Fulton Cnty. Sch. Dist., No. 20-cv-00975,
ECF No. 21.
7 Id. at 9–12.
8 Id.
9 Id. at 12.
10 Americans with Disabilities Act tit. II, 42 U.S.C. §§ 12131–12134, 12141–
12150, 12161–12165.
11 Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794.
12 Individuals with Disabilities Education Act Pub. L. No. 91-230, 84 Stat.
175 (1970).
13 See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v.
Rowley, 458 U.S 176, 181 (1982) (interpreting 20 U.S.C. § 1412(a)(1);

34 C.F.R. § 300.112).

ensuring effective pleading in Title IX sexual harassment cases,
particularly those involving students with disabilities. Additionally,
while this article will not cover in depth the other legal protections
afforded to students with disabilities, it will touch on the intersection
of sexual harassment with disability-based discrimination. Finally, it
will conclude by explaining the importance of a well-pleaded
complaint in Title IX cases brought on behalf of students with
disabilities.
II. Title IX—legal standards for sexual

harassment in education
Title IX provides that “No person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any education program or
activity receiving Federal financial assistance . . . .” 14 Title IX
conditions an offer of federal funding on a commitment by the
recipient not to discriminate on the basis of sex and, thus, operates
like “a contract between the Government and the recipient of funds.” 15
The United States has a significant interest in ensuring that all
students, including students with disabilities, have access to an
educational environment free of sex discrimination and that the
proper legal standards are applied to claims under Title IX. The U.S.
Department of Justice (Department) coordinates the implementation
and enforcement of Title IX across all executive agencies. Where it
serves as a federal funding agency, or upon referral from the
Department of Education or other funding agencies, the Department
also may bring suit to enforce Title IX and its implementing
regulations.
While Title IX does not expressly provide for a private right of action
against a school district for damages, the U.S. Supreme Court, in two
separate opinions authored by Justice Sandra Day O’Connor, set forth
the circumstances under which a school district may be held liable for
damages in an implied right of action under Title IX.
14Education Amendments of 1972 § 901, 20 U.S.C. § 1681(a).

15Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286 (1998) (citing
Guardians Ass’n v. Civil Serv. Comm’n of New York City, 463 U.S. 582, 599
(1983)).

A. Teacher-on-student sexual harassment—Gebser v.
Lago Vista Independent School District
In Gebser v. Lago Vista Independent School District, a high school
teacher engaged in a sexual relationship with his ninth-grade
student. 16 School officials learned of the relationship when a police
officer found the teacher and student engaging in sexual intercourse.
The teacher was arrested, and the school district terminated his
employment. 17 The student and her mother sued the school district
and the teacher and alleged, among other things, that the school
district was liable under Title IX for the teacher’s sexual
harassment. 18 The issue the Supreme Court considered in Gebser was
whether a teacher’s misconduct is attributable to the school district
that employs him when Title IX was primarily designed to prevent
recipients of federal financial assistance from using the funds
discriminatorily. The Court held that it can be.
The Gebser Court refused to allow recovery based on the principles
of respondeat superior or constructive notice, that is, without actual
notice to a school district official. 19 The Court explained that, “the
knowledge of the wrongdoer himself is not pertinent to the analysis.” 20
Instead, the Court required that “an appropriate person” at the
recipient school have actual knowledge of the teacher’s sexual
harassment and respond with deliberate indifference to that
knowledge. 21 It explained that “An ‘appropriate person’ . . . is, at a
minimum, an official of the recipient entity with authority to take
corrective action to end the discrimination.” 22
The Gebser petitioners could not prevail under the actual notice
standard the Court set forth because no one at the school, other than
the teacher at issue, had knowledge of his sexual relationship with the
student. 23 Therefore, the Court did not expound upon the deliberate
indifference standard or other elements of a sexual harassment claim.
But it laid the groundwork for what was to come just one year later in
16 Id. at 277–78.
17 Id. at 278.
18 Id.
19 Id. at 285.
20 Id. at 291.
21 Id. at 289.
22 Id. at 290.
23 Id. at 291.

Davis v. Monroe County School Board, 24 the foundational case on an
educational program’s liability to a private party for damages arising
from discriminatory harassment.
B. Student-on-student sexual harassment—Davis v.
Monroe County Board of Education
In Davis, a male high school student sexually harassed a female
classmate over a five-month period, including verbal harassment and
“numerous acts of objectively offensive touching,” but the school,
despite its knowledge of the incidents, “made no effort whatsoever
either to investigate or to put an end to the harassment.” 25 Therefore,
the question at issue was whether a recipient of federal education
funding could be liable under Title IX for damages “under any
circumstances for discrimination in the form of student-on-student
sexual harassment.” 26 The Supreme Court answered the question in
the affirmative. 27 Student-on-student sexual harassment may give
rise to a Title IX claim when a school district is deliberately
indifferent to known sexual harassment. 28
In so holding, the Court set forth the legal standard to sustain a
damages claim under Title IX for injuries arising from
student-on-student sexual harassment. In addition to establishing
that the defendant educational entity is a recipient of federal funding,
a plaintiff must demonstrate that (1) the entity had actual knowledge
of the sexual harassment in its programs or activities; (2) the entity
was deliberately indifferent to the harassment; and (3) the sexual
harassment was “so severe, pervasive, and objectively offensive that it
[could] be said to [have] deprive[d] the [plaintiff] of access to the
educational opportunities or benefits provided by the” entity. 29
1. Actual knowledge of the harassment
Looking back to Gebser, the Davis Court explained that the school
district would be held “liable for damages only where the district itself
intentionally acted in clear violation of Title IX by remaining
24 Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629
(1999).
25 Id. at 653–54.
26 Id. at 639.
27 Id. at 651.
28 Id. at 646–47.
29 Id. at 650, 633, 647.

deliberately indifferent” to acts of harassment of which it had actual
knowledge. 30 It is important to note that, in Gebser, the Supreme
Court required the actual knowledge of an “appropriate person.” 31
Absent from the Davis opinion, though, is any reference to the
“appropriate person” requirement in its student-on-student sexual
harassment analysis.
Nevertheless, lower courts have imposed the “appropriate person”
requirement in student-on-student harassment cases under Title IX
and have grappled with which school employees constitute
“appropriate persons” whose knowledge can be imputed to the funding
recipient. 32 For example, courts have recognized that “an ‘appropriate
person’ under Title IX means ‘a school official who has the authority to
halt the known abuse,’ and this fact-based inquiry is not dependent on
job title.” 33 Instead, courts “look beyond title and position to the actual
discretion and responsibility held by an official, and consider the type
and number of corrective measures available to an official.” 34 To
conduct this fact-based inquiry, courts may examine, among other
things, “how [a state] organizes its public schools, the authority and
responsibility granted by state law to [employees] . . . , the school
district’s discrimination policies and procedures, and the facts and
30 Id. at 642 (citing Gebser, 524 U.S. at 290).

31 Gebser, 524 U.S. at 289.
32 On May 19, 2020, the Department of Education published Title IX
regulations that define “actual knowledge” as notice “to any employee of an

elementary or secondary school.” Nondiscrimination on the Basis of Sex in
Education Programs or Activities Receiving Federal Financial Assistance, 85
Fed. Reg. 30,026, 30,495 (May 19, 2020) (to be codified at 34 C.F.R. Part 106)
(citing section 106.30); see also id. at 30,109 (“[N]otice to any elementary and
secondary school employee—including a teacher, teacher’s aide, bus driver,
cafeteria worker, counselor, school resource officer, maintenance staff
worker, or other school employee—charges the recipient with actual
knowledge, triggering the recipient’s response obligations.”).
33 S.E.S. ex rel. J.M.S. v. Galena Unified Sch. Dist. No. 499, No. 18-2042,
2020 WL 1166226, at *34 (D. Kan. Mar. 11, 2020) (quoting Murrell v. Sch.
Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1247 (10th Cir. 1999)).
34 Saphir v. Broward Cty. Pub. Sch., 744 F. App’x 634, 638 (11th Cir. 2018)
(not precedential); cf. Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334,
350 (11th Cir. 2012) (“The questions of how far up the chain of command one
must look to find an ‘official’ is necessarily a fact-intensive inquiry, since an
official’s role may vary from organization to organization.”).

circumstances of the particular case.” 35 Therefore, while Davis does
not explicitly require an official of the recipient entity with authority
to take corrective action (that is, an “appropriate person”) to have
actual knowledge, the best practice is to plead with specificity all facts
available to support a finding that an appropriate person had actual
knowledge of the harassment at issue.
2. Standard for “deliberate indifference” to known
threats or incidents of harassment
Looking back to Gebser, the Davis Court explained that funding
“recipients could be liable in damages only where their own deliberate
indifference effectively caused the discrimination.” 36 “A recipient
cannot be directly liable for its indifference where it lacks the
authority to take remedial action.” 37 The Court imposed this high
standard “to eliminate any ‘risk that the recipient would be liable in
damages not for its own official decision[,] but instead for its
employees’ independent actions.’” 38 Additionally, the Court reasoned
that, when “the misconduct occurs during school hours on school
grounds, [that] misconduct is taking place ‘under’ an ‘operation’ of the
recipient,” and “the recipient retains substantial control over the
context in which the harassment occurs.” 39 If a plaintiff establishes
the school district had actual knowledge of the harassment, then the
plaintiff must show that the school district acted with deliberate
indifference to the known threats or incidents of harassment. 40
The Davis Court was concerned about second-guessing the
disciplinary actions made by school administrators in cases involving
student sexual harassment. Accordingly, the Court held that funding
recipients should be deemed deliberately indifferent “only where the
recipient’s response to the harassment or lack thereof is clearly
35 Hawkins v. Sarasota Cnty. Sch. Bd., 322 F.3d 1279, 1286 (11th Cir. 2003).
36 Davis ex rel. LaShonda D., 526 U.S.at 642–43 (cleaned up) (citing Gebser,
524 U.S. at 291); see also id. at 645 (“The deliberate indifference must, at a
minimum, ‘cause [students] to undergo’ harassment or ‘make them liable or
vulnerable’ to it.”) (alteration in original).
37 Id. at 644.
38 Id. at 643 (citing Gebser, 524 U.S. at 290–91); see also I.F. v. Lewisville
Indep. Sch. Dist., 915 F.3d 360, 368–69 (5th Cir. 2019) (“Deliberate
indifference is an extremely high standard to meet.” (citation omitted)).
39 Davis ex rel. LaShonda D., 526 U.S. at 630.
40 Id. at 633.

unreasonable in light of the known circumstances.” 41 The Court
believed this standard would be “sufficiently flexible to account both
for the level of disciplinary authority available to the school and for
the potential liability arising from certain forms of disciplinary
action.” 42 In defending the propriety of the standard, the court
explained that “Title IX does not require school districts to purge
themselves of harassment, take specific disciplinary actions, nor
comply with parents’ remedial demands.” 43
Over time, courts have expounded upon Davis’s deliberate
indifference standard, developing “pre-assault” and “post-assault”
approaches to showing liability for Title IX damages claims. 44 In a
typical pre-assault claim, a plaintiff asserts that a school’s deliberate
indifference to a known, substantial risk of sexual harassment caused
or led to subsequent sexual harassment or assault of the plaintiff. In
Simpson v. University of Colorado Boulder, for instance, the Tenth
Circuit found that Colorado University’s (CU) failure to adequately
supervise high school athletic recruits who sexually assaulted the
plaintiffs could constitute deliberate indifference under Title IX. 45 The
court observed that, “[b]y the time of the alleged assaults of Plaintiffs,
there were a variety of sources of information suggesting the risks
that sexual assault would occur if recruiting was inadequately
supervised.” 46 This information derived from “reports not specific to
CU regarding the serious risk of sexual assaults by student-athletes,”
as well as an incident “[i]n 1997 where a high[ ]school girl was
assaulted by CU recruits at a party hosted by a CU football player.” 47
41 Id. at 648.
42 Id. at 649.
43 Lewisville Indep. Sch. Dist., 915 F.3d at 369.
44 Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1099 (9th Cir. 2020)
(explaining that a “pre-assault claim” “relies on events that occurred before

[the plaintiffs’] assaults”); Karasek v. Regents of Univ. of Cal., 500 F. Supp.
3d 967, 970 (N.D. Cal. 2020) (explaining that a “post-assault claim” is
premised on “a school’s response to a [plaintiff’s] complaint of sexual
misconduct” after the assault); Simpson v. Univ. of Colo. Boulder, 500 F.3d
1170, 1173 (10th Cir. 2007) (reversing summary judgment in favor of the
university; facts known by the university football coach prior to the assault
could meet the deliberate indifference standard).
45 500 F.3d at 1173.
46 Id.
47 Id.

Thus, CU exhibited deliberate indifference to a known risk of sexual
harassment before the assault occurred, making the plaintiff more
vulnerable to the attack itself.
“Post-assault” claims focus on how a recipient responded after it
received actual notice of a plaintiff’s sexual harassment. Courts apply
Davis’s three-part framework to such claims, and plaintiffs must
allege facts showing that the school’s deliberate indifference either
caused them to undergo further harassment or made them vulnerable
to potential further harassment (or both). 48 When considering whether
a funding recipient’s conduct after it learns of sexual harassment
meets the deliberate indifference standard, courts consider whether
remedial measures were taken. Did the school district investigate the
incidents of which it had knowledge? Were the offending individuals
disciplined? Did the school district afford protection for the victim?
Title IX does not require flawless investigations or perfect solutions. 49
That said, “[w]here a school district has actual knowledge that its
efforts to remediate are ineffective, and it continues to use those same
methods to no avail,” or if takes no action at all, the school district
likely acts with deliberate indifference. 50
48 Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 171–73 (1st Cir. 2007),
rev'd on other grounds, 555 U.S. 246 (2009); Farmer v. Kan. State Univ., No.
16-CV-2256, 2017 WL 3674964, at *4 (D. Kan. Aug. 24, 2017), aff’d, 918 F.3d
1094, 1104 (10th Cir. 2019) (“Plaintiffs can state a viable Title IX claim for
student-on-student harassment by alleging that the funding recipient’s
deliberate indifference caused them to be ‘vulnerable to’ further harassment
without requiring an allegation of subsequent actual sexual harassment.”);
Doe 1 v. Baylor Univ., 240 F. Supp. 3d 646, 658 (W.D. Tex. 2017). But see
Kollaritsch v. Mich. St. Univ. Bd. of Trustees, 944 F.3d 613, 623–24 (6th
Cir. 2019) (requiring plaintiff to plead and prove “an incident of actionable
sexual harassment, the school's actual knowledge of it, some further incident
of actionable sexual harassment, that the further actionable harassment
would not have happened but for the objective unreasonableness (deliberate
indifference) of the school's response, and that the Title IX injury is
attributable to the post-actual-knowledge further harassment”).
49 Fitzgerald, 504 F.3d at 174.
50 E.g., Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 261 (6th
Cir. 2000).

3. Severe, pervasive, and objectively offensive
deprivation of educational opportunities or
benefits
In addition to the knowledge and deliberate indifference elements, a
plaintiff can recover damages in a private action under Title IX for
student-on-student harassment only if that harassment is “so severe,
pervasive, and objectively offensive that it effectively bars the victim’s
access to an educational opportunity or benefit.” 51 This element is
necessary to ensure that the harassment rises to the level of
discrimination actionable in a private Title IX damages suit. 52 “The
relationship between the harasser and the victim necessarily affects
the extent to which the misconduct can be said to breach Title IX’s
guarantee of equal access to educational benefits and to have a
systemic effect on a program or activity.” 53 Distinguishing the facts in
Gebser from those in Davis, the Court explained that “[p]eer
harassment, in particular, is less likely to satisfy these requirements
than is teacher-student harassment.” 54
Like the preceding elements of a Title IX student-on-student sexual
harassment claim, this element is highly fact specific. “Whether
gender-oriented conduct is harassment depends on a constellation of
surrounding circumstances, expectations, and relationships, including
but not limited to, the harasser’s and the victim’s ages and the
number of persons involved.” 55 The Davis Court directed courts to
“bear in mind that schoolchildren may regularly interact in ways that
would be unacceptable among adults.” 56 “[S]imple acts of teasing and
name-calling among school children” will not support a private claim
for damages under Title IX. 57 But, on the other end of the spectrum,
numerous courts following Davis have concluded that sexual abuse
and rape are sexual harassment that is so severe, pervasive, and
objectively offensive that it can be said to deprive a student of access
51 Davis, 526 U.S. at 633 (1999).

52 Id. at 650.
53 Id. at 653.
54 Id.
55 Id. at 631 (internal citations omitted).
56 Id.
57 Id. at 652.

to educational opportunities or benefits. 58 Under such circumstances,
courts need not conduct further inquiry into whether the student
suffered a denial of educational resources. 59 Whether conduct between
these two ends of the spectrum is sufficiently pervasive, severe, and
objectively offensive is highly fact specific and is often not an issue
that can be determined by summary resolution. 60
In addition to looking to the harassing conduct itself, a court’s
analysis of this element will also be driven by the effects on the
student and whether the alleged conduct “so undermines and detracts
from the victims’ educational experience, that the victim-students are
effectively denied equal access to an institution’s resources and
opportunities.” 61 Plaintiffs need not show actual physical exclusion by
the harassment to demonstrate that the actions of another student or
students deprived them of an educational opportunity on the basis of
58 See, e.g., Soper v. Hoben, 195 F.3d 845, 854–55 (6th Cir. 1999) (noting that
rape and sexual abuse “obviously qualif[y] as being severe, pervasive, and
objectively offensive sexual harassment that could deprive [a student] of
access to the educational opportunities provided by her school”);
Murrell v. Sch. Dist. No. 1, 186 F.3d 1238, 1248 (10th Cir. 1999) (finding
wrongdoing was sufficiently severe, pervasive, and objectively offensive
where a student “battered, undressed, and sexually assaulted” another
student); Doe v. Howard Univ., 396 F. Supp. 3d 126, 136 n.2 (D.D.C. 2019)
(noting that “[a] single, serious sexual assault can meet the severe, pervasive,
and offensive standard”); T.P. ex rel. Patterson v. Elmsford Union Free Sch.
Dist., No. 11-cv-5133, 2012 WL 860367, at *8 (S.D.N.Y. Feb. 27, 2012) (same);
Bliss v. Putnam Valley Cent. Sch. Dist., No. 06-cv-15509, 2011 WL 1079944,
at *1, *5 (S.D.N.Y. Mar. 24, 2011) (same); Kelly v. Yale Univ., 01-cv-1591,
2003 WL 1563424, at *3 (D. Conn. Mar. 26, 2003) (same).
59 See Soper, 195 F.3d at 854–55; M. v. Stamford Bd. of Educ., No. 05-cv-0177,
2008 WL 2704704, at *9 (D. Conn. July 7, 2008), modified on other grounds,

2008 WL 4197047 (Sept. 9, 2008); Kelly, No. 01-CV-1591, 2003 WL 1563424,
at *3; Doe I v. Dallas Ind. Sch. Dist., No. 01-CV-1092, 2002 WL 1592694, at
*6 (N.D. Tex. July 16, 2002). But see Ross v. Corp. of Mercer Univ., 506 F.
Supp. 2d 1325, 1358 (M.D. Ga. 2007).
60 See Torres v. Pisano, 116 F.3d 625, 631 (2d Cir. 1997) (addressing the
severe and pervasive standard in the context of a hostile work environment

claim based on sexual harassment (referencing DiLaurenzio v. Atlantic
Paratrans, Inc., 926 F. Supp. 310, 314 (E.D.N.Y. 1996)).
61 Davis, 526 U.S. at 651 (referencing Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 67 (1986)).

sex. 62 Plaintiffs can meet this element by demonstrating that the
conduct had a negative impact on their education, such as dropping
grades and absenteeism. 63 Evidence of the psychological effects on the
victim, such as anxiety, depression, or suicidal thoughts requiring
treatment, may also suffice to show sufficiently pervasive and severe
discrimination under Title IX. 64
III. Title IX’s intersectionality with Title II

of the ADA and section 504
Returning to the example of Fulton, the 14-year-old victim’s
disabilities made her a particularly vulnerable target for the boys on
the school bus. Based on the harassment she experienced, she pursued
sex discrimination claims under Title IX and disability discrimination
claims under Title II of the ADA and section 504 of the Rehabilitation
Act. Courts often look to Title IX precedent for guidance when
adjudicating Title II and section 504 damages claims. As further
explained below, however, there is some inconsistency among the
Circuits as to whether Davis’s deliberate indifference standard applies
to disability-based harassment claims for damages. For that reason, it
is important to know your court when pleading harassment cases for
damages on behalf of students with disabilities.
Title II and section 504 ‘“promise non-discriminatory access to
public institutions’—specifically aiming ‘to root out disability-based
discrimination, enabling each covered person . . . to participate
equally to all others in public facilities and federally funded
programs.’” 65 While Title II and section 504 have different causation
62 Id.
63 E.g., Gabrielle M. v. Park Forest-Chicago Heights, Ill. Sch. Dist. 163, 315
F.3d 817, 823 (7th Cir. 2003).
64 J.H. v. Sch. Town of Munster, 160 F. Supp. 3d 1079, 1091 (N.D. Ind. 2016).
65 E.g., J.S., III by & through J.S. Jr. v. Houston Cnty. Bd. of Educ., 877 F.3d
979, 985 (11th Cir. 2017) (citing Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743,
756, 197 L.Ed.2d 46 (2017)). Title II of the ADA provides that “no qualified
individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. Similarly, section 504 states that “[n]o otherwise
qualified individual with a disability in the United States, . . . shall, solely by
reason of her or his disability, be excluded from the participation in, be

language, 66 courts often review claims under the two statutes
similarly, and the Department has argued that the deliberate
indifference standard applies to claims for damages under both
statutes. 67 To state a claim under either Title II or section 504, a
plaintiff must establish:
(1) that [s]he is a qualified individual with a disability;
(2) that [s]he was either excluded from participation in
or denied the benefits of a public entity’s services,
programs, or activities, or was otherwise discriminated
against by the public entity; and (3) that the exclusion,
denial of benefit, or discrimination was by reason of the
plaintiff's disability. 68
To receive damages, a plaintiff must also prove that the defendant
engaged in intentional discrimination, which, for most courts, requires
a showing of “deliberate indifference.” 69 Courts have defined
deliberate indifference in this context to require “both knowledge that
a harm [of] a federally protected right is substantially likely, and a
failure to act upon that . . . likelihood.” 70
denied the benefits of, or be subjected to discrimination under any program

or activity receiving Federal financial assistance.” 29 U.S.C. § 794.
66 Section 504 provides that “[n]o otherwise qualified individual with a
disability . . . shall, solely by reason of her or his disability, be excluded from

the participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity.” 29 U.S.C. § 794(a) (emphasis
added). Under Title II of the ADA, however, “‘discrimination need not be the
sole reason’ for the exclusion of or denial of benefits to the plaintiff.” E.g.,
Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 454 (5th Cir. 2005)
(quoting Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500, 503–04 (5th
Cir. 2002)).
67 Silberman v. Miami Dade Transit, 927 F.3d 1123, 1133 (11th Cir. 2019).
68 Id. at 1134. (quoting Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083
(11th Cir. 2007)).

69 Compare Id. (quoting Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334,
348 (11th Cir. 2012)), with Monahan v. State of Neb., 687 F.2d 1164, 1171
(8th Cir. 1982) (“either bad faith or gross misjudgment” must be shown to
impose liability under section 504 of the Rehabilitation Act), and Hoekstra by
& Through Hoekstra v. Indep. Sch. Dist. No. 283, 103 F.3d 624, 626 (8th
Cir. 1996) (a showing of “bad faith or gross negligence” is required to sustain
ADA claim in education context).
70 E.g., Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001).

In student-on-student disability-based harassment claims brought
under Title II and section 504, the majority of federal courts
addressing the issue have applied the Davis Title IX framework. 71 In
the Title II and section 504 contexts, the Davis standard requires
plaintiffs to show that (1) plaintiff is “an individual with a disability”;
(2) plaintiff was “harassed by fellow students based on [the]
disability”; (3) “the disability-based harassment was sufficiently
‘severe, pervasive, and objectively offensive’ that it effectively deprived
[the plaintiff] of ‘access to educational benefits and opportunities’ at
school”; (4) “the school knew about the disability-based student-on-
student harassment”; and (5) the school “was deliberately indifferent
to it.” 72
While most jurisdictions use the deliberate indifference standard for
disability-based student-on-student harassment cases, some courts
have required “bad faith or gross misjudgment.” This is a standard of
review often used in cases involving disputes over accommodations
provided to students with disabilities. 73 Still other cases have used
both the bad faith or gross misjudgment and the deliberate
indifference standard to sustain a claim for damages under Title II
and section 504. 74
71 S.B. v. Bd. of Educ. of Harford Cnty., 819 F.3d 69, 75–77 (4th Cir. 2016);
Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 995–97 (5th
Cir. 2014); see S.S. v. E. Ky. Univ., 532 F.3d 445, 453–54 (6th Cir. 2008); see
also Long v. Murray Cnty. Sch. Dist., 522 F. App’x 576, 577 (11th Cir. 2013)
(not precedential).
72 E.g., S.B. ex rel. A.L, 819 F.3d at 76 (quoting Davis ex rel. LaShonda D.,
526 U.S. at 650).

73 E.g., E.M. b/n/f Guerra v. San Benito Cons. Indep. Sch. Dist., 374 F. Supp.
3d 616 (S.D. Tex. 2019) (using the bad faith or gross misjudgment standard
to evaluate plaintiff’s claim that the district failed to provide necessary
accommodations and modifications).
74 See, e.g., Barnwell v. Watson, 880 F.3d 998 (8th Cir. 2018);
Doe v. Bradshaw, 203 F. Supp. 3d 168, 191 n.17 (D. Mass. 2016) (“Both
standards have been employed by the courts of appeals.”); cf. S.B. ex rel. A.L,
819 F.3d at 75 (noting that the “district court, likely in an excess of caution,
applied the ‘bad faith or gross misjudgment’ standard as well as the
‘deliberate indifference’ standard”); E.M. b/n/f Guerra, 374 F. Supp. 3d at
625–26 (holding that plaintiff’s peer harassment claim must meet both the
deliberate indifference standard and the “professional bad faith or gross
misjudgment” standard); see also Bradyn S. v. Waxahachie Indep. Sch. Dist.,
No. 18-cv-2724, 2019 WL 3859301, at *8 (N.D. Tex. Aug. 16, 2019) (in a case

Given these varying legal standards, it is important to know your
jurisdiction when pleading a damages claim for disability-based
student-on-student harassment under Title II or section 504. The
United States has argued that the proper standard in this context is
the deliberate indifference standard. But where your jurisdiction may
apply the “bad faith or gross misconduct” standard, it is advisable to
argue for the deliberate indifference standard while also showing that
the facts meet the higher “bad faith or gross misconduct” standard.
IV. IDEA exhaustion defense

Unlike Title IX, Title II of the ADA, and section 504, which are
anti-discrimination protections, 75 the IDEA is a funding statute that
conditions receipt of federal funds on meeting specified procedural
obligations, and that requires every state receiving federal
educational assistance to have in effect a policy that assures all
children with disabilities the right to a FAPE. 76 The IDEA
“guarantees individually tailored educational services” for students
with specific, identified disabilities. 77 It is addressed here because the
denial of certain supports afforded to a student with a disability under
the IDEA may be a relevant and material fact supporting damages
claims for harassment under
Title IX, Title II, or section 504. Unlike these statutes, however, the
IDEA has an administrative exhaustion requirement that must be
satisfied before a plaintiff has standing in court to pursue her right to
relief for denial of FAPE. 78 According to 20 U.S.C. § 1415(l):
Nothing in [the IDEA] shall be construed to restrict or
limit the rights, procedures, and remedies available
where the district uses both the deliberate indifference standard and the
“professional bad faith or gross misjudgment” standard, holding that the
deliberate indifference standard applies to allegations of student-on-student
harassment claims, but “[t]his court has found no Fifth Circuit authority that
recognizes a cognizable claim under § 504 or the ADA for hostile environment
claims based on allegations that a school district and its employees harassed
a student.”).
75 Cf. J.S., III v. Houston Cnty. Bd. of Educ., 877 F.3d 979, 985 (11th
Cir. 2017) (citing Fry v. Napoleon Cmty. Sch., 137 S. Ct. 743, 756 (2017)).
76 20 U.S.C. §§ 1400(c), 1412(a)(1).
77 Fry, 137 S. Ct. at 756.

78 20 U.S.C. § 1415(l).

under the Constitution, the [ADA], title V of the
Rehabilitation Act [including section 504], or other
Federal laws protecting the rights of children with
disabilities, except that before the filing of a civil action
under such laws seeking relief that is also available
under [the IDEA], the [IDEA’s administrative
procedures] shall be exhausted to the same extent as
would be required had the action been brought under
[the IDEA].
Defendants will often attempt to characterize a complaint filed on
behalf of a student with a disability as a denial of FAPE claim under
the IDEA and, thus, subject to the IDEA’s exhaustion requirement.
For any claims, including disability-based student-on-student
harassment claims under either Title II or section 504, the section
1415(l) exhaustion requirement applies only if a plaintiff seeks relief
available under the IDEA, and such relief is limited to a FAPE. 79 In
Fry v. Napolean Community School, the Supreme Court held that, to
determine if the IDEA’s exhaustion requirement applies, courts
should look to “the gravamen of a complaint” to see if the relief sought
is something other than “IDEA’s core guarantee of a FAPE.”80 The
IDEA’s exhaustion requirement applies only if a plaintiff actually
‘‘‘seeks’ relief available under the IDEA—not, as a stricter exhaustion
statute might require, [when] the suit ‘could have sought’ relief
available under the IDEA.” 81 Even though the same conduct might be
a violation of Title II, section 504, and the IDEA, and could give rise to
an IDEA claim, a plaintiff might “instead seek relief from simple
discrimination, irrespective of the IDEA’s FAPE obligation.” 82 So, for
example, the First Circuit recently found that having a service animal
in school is an accommodation under Title II and section 504, but it is
not part of a FAPE. 83
79 Fry, 137 S. Ct. at 748.

80 Id.
81 Id. at 755. While the Supreme Court held that IDEA exhaustion is
required only if the plaintiff seeks relief for the denial of a FAPE, it did not
address the argument that a claim seeking damages is not subject to IDEA
exhaustion because the IDEA does not provide a damages remedy.
82 Id. at 756.
83 Doucette v. Georgetown Pub. Schs., 936 F.3d 16 (1st Cir. 2019); see also
Sophie G. v. Wilson Cnty. Schs., 742 F. App’x 73 (6th Cir. 2018) (not
precedential) (seven-year-old who required toileting assistance and was

Defendants have also raised the IDEA exhaustion defense in
response to a Title IX claim alleged on behalf of a student with a
disability. The United States’ position is that the IDEA’s exhaustion
requirement does not apply to Title IX claims under any
circumstances. Section 1415(l) of the IDEA refers only to claims under
the Constitution, the ADA, section 504, or “other Federal laws
protecting the rights of children with disabilities.” 84 Where the
language of the statute is “plain,” like section 1415(l), the “sole
function” for the court is “to enforce it according to its terms.” 85
Because Title IX is not aimed at protecting children with disabilities
in particular, section 1415(l) does not apply to any Title IX claims.
Given the list of specific statutes identified in section 1415(l), the
“other Federal laws” clause is best read to require exhaustion only for
actions raising claims under statutes similar in kind to the ADA,
section 504, or the IDEA itself—statutes focused on protecting the
rights of persons with disabilities. 86
In 2018, the United States filed an Amicus Curiae brief in Doe v.
Dallas Independent School District to explain this position. 87 The Fifth
Circuit Court of Appeals considered the United States’ argument and
held that, “if a disabled person seeks Title IX relief that a non-
disabled person could also seek and requests relief that is different
from or in addition to a FAPE, the IDEA's exhaustion requirement
does not apply.” 88 While the Fifth Circuit did not go so far as to state
that IDEA’s administrative exhaustion requirement could never apply
denied access to the school district’s after-school program for that reason did
not need to exhaust under the IDEA).
84 20 U.S.C. § 1415(l).
85 United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989).
86 See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1625 (2018) (explaining that
when “a more general term follows more specific terms in a list, the general
term is usually understood to ‘embrace only objects similar in nature to those
objects enumerated by the preceding specific words’”) (citing Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001)); Fry, 137 S. Ct. at 750 (IDEA
exhaustion requirement potentially applies to suits “under the ADA, the
Rehabilitation Act, or similar laws”).
87 Brief for the U.S. as Amicus Curiae Supporting Appellant and Urging
Reversal, Doe v. Dallas Indep. Sch. Dist., No. 18-10720 (5th Cir. Nov. 27,
2018).
88 Doe v. Dallas Indep. Sch. Dist., 941 F.3d 224, 227 (5th Cir. 2019).

to a Title IX claim, it agreed with the United States’ argument that
the requirement did not apply based on the facts before it. 89
Some courts may still find that harassment that causes a denial of
FAPE by creating a hostile environment is necessarily subject to an
exhaustion defense. Other courts agree that exhaustion is not
required for a harassment claim. For example, a Wisconsin court
ruled that a student with autism experiencing verbal and physical
harassment by other students did not have to exhaust under the
IDEA because all that he was seeking was what other students
already had: An environment free of harassment. 90 Strong allegations
in the complaint that the disability harassment to which the victim
was subjected could have occurred in any public facility or could have
been committed against “an employee or visitor” to the school should
be sufficient to avoid dismissal based upon an exhaustion defense. 91
V. Conclusion
The U.S. Supreme Court set a high but surmountable bar for
recovering damages in Title IX sexual harassment suits. Title IX’s
protection from sexual harassment applies to all students, regardless
of whether they have a disability, but a student’s disability can be a
critical factor in evaluating whether a funding recipient acted with
deliberate indifference. A complaint should include facts necessary to
support an inference that school employees who could be deemed an
“appropriate person” had knowledge of the harassment sufficient to
hold the school district liable. Further, when pleading a Title IX
harassment claim, the funding recipient’s knowledge of the needs of a
student with a disability should be fully detailed in the complaint,
especially where the disability makes the student more vulnerable to
harassment. A rote recitation of the Gebser/Davis factors in a
complaint risks dismissal.
When a student with a disability is subject to sexual harassment
that meets the Gebser/Davis factors, there is a strong likelihood that
the student’s rights under the ADA and section 504 have also been
violated. Indeed, the Gebser/Davis factors also apply to disability
harassment claims. Whenever harassment is alleged, deliberate
89 See id. at 228–29.

90 Bowe v. Eau Claire Area Sch. Dist., No. 16-cv-46, 2017 WL 1458822, at *4–
5 (W.D. Wisc. Apr. 24, 2017).
91 Fry, 137 S. Ct. at 756.

indifference is the proper standard to evaluate whether the defendant
can be held liable for damages.
Moreover, while the fact that a student with a disability may have
an IEP may be an important factor to consider under Gebser/Davis,
those facts should be pleaded with care. If the plaintiff does not intend
to pursue a claim under the IDEA, the complaint allegations should
make clear that the gravamen of the plaintiff’s complaint is about
unlawful discrimination under Title IX, Title II, or section 504, and is
not about a denial of FAPE. Otherwise, courts hesitant to delve into
disability-related matters in the context of public education may be
inclined to dismiss a complaint for disability-based harassment for
failure to exhaust the IDEA’s administrative remedies.
In Fulton, the plaintiff alleged harassment claims against the school
district under Title IX, Title II, and section 504. The school district
moved to dismiss the complaint by arguing, among other things, that
the school bus driver who witnessed the harassment lacked the
“substantial supervisory authority” necessary to satisfy the
“appropriate person” requirement under Title IX; that the facts
alleged did not show deliberate indifference; and that the plaintiff’s
claims were barred by plaintiff’s failure to exhaust her administrative
remedies under the IDEA. In its statement of interest, filed to assist
the court just in evaluating the sufficiency of the plaintiff’s Title IX
claim, the United States explained that “[a] school district official’s
title—standing alone—cannot be the basis for categorically excluding
the official as an appropriate person.” 92 The United States pointed to
myriad facts to support finding that the bus driver could be an
“appropriate person” whose knowledge is imputed to the district,
which included the district’s policies giving authority to bus drivers to
ensure the safety and control of students on their busses; imposing
reporting obligations on school district staff; and recognizing that
students with disabilities may be entitled to additional protections
and considerations. The U.S. District Court for the Northern District
of Georgia agreed and denied defendant’s motion to dismiss the
plaintiff’s Title IX, Title II, and section 504 claims.
With well- and strategically pleaded facts, Title IX, Title II, and
section 504 can be effective tools to vindicate the rights of students
with disabilities and protect them from harassment. The Educational
92Statement of Interest at 4, Doe v. Fulton Cnty. Sch. Dist., No. 1:20-cv-

00975 (N.D. Ga. July 7, 2020), ECF No. 26.

Opportunities Section (EOS) is eager to work with U.S. Attorneys’
Offices to promote the success of these matters. Assistant U.S.
Attorneys who learn about cases that concern the sexual harassment
of students with disabilities are encouraged to contact EOS early and
often for support.
About the Author
Tiffany Cummins Nick serves as an Assistant U.S. Attorney
(AUSA) in the Civil Division of the U.S. Attorney’s Office (USAO) for
the Middle District of Florida, Orlando Division, and is currently on
detail to the Educational Opportunities Section of the Department’s
Civil Rights Division as a Trial Attorney. As an AUSA, she principally
handles civil rights investigations and litigation. Before joining the
USAO in 2015, Tiffany worked in private practice doing employment
class and collective action defense in Orlando, Florida, and
Washington, DC, and also served as a Law Clerk to U.S. District
Judge Mary S. Scriven in the Middle District of Florida. Tiffany
received her law degree, cum laude, from the University of Florida
Levin College of Law, and her undergraduate degree, cum laude, from
Wake Forest University.

Sexual Harassment in Housing:
Working with Local Prosecutors
in Sexual Harassment Matters
Erin Meehan Richmond
Sexual Harassment Counsel and Coordinator
Housing and Civil Enforcement Section
Michael E. Campion
District of New Jersey
I. Introduction
The Department of Justice (Department) plays a key role in
enforcing the Fair Housing Act (FHA). 1 The FHA prohibits a range of
discrimination in the housing context, including discrimination based
on sex. Sexual harassment is a form of sex discrimination. Sexual
harassment can be quid pro quo harassment: for example, when a
landlord demands that a tenant engage in unwelcome sexual activity
to obtain an apartment. It can also be hostile environment
harassment: when the harassment is unwelcome and severe or
pervasive.
Under the pattern-or-practice provision of the FHA, the Department
can investigate and file civil lawsuits to remedy a pattern-or-practice
of sexual harassment. 2 The Department may also file suit on behalf of
individuals who have filed complaints of sexual harassment in
housing with the Department of Housing and Urban Development
(HUD). This happens after HUD investigates a complaint, finds
reasonable cause to believe that discrimination took place, conciliation
efforts fail, and the complainant or the respondent elects to resolve
the dispute in federal court. In that event, the Department files suit
on behalf of the complainant. 3
While the Department has brought sexual harassment FHA cases
for decades, its work in this area increased significantly after it
launched its Sexual Harassment in Housing Initiative (Initiative) on
1 42 U.S.C. §§ 3601–3619, 3631.

2 42 U.S.C. § 3614(a).
3 See 42 U.S.C. § 3612(o).

October 3, 2017. The Housing and Civil Enforcement Section of the
Civil Rights Division leads this initiative, in strong partnership with
U.S. Attorneys’ Offices across the country. Its goal is to address sexual
harassment by landlords, property managers, maintenance workers,
loan officers, and other people who have control over housing. Since
the launch of the initiative, the Department has filed over 20 lawsuits
and obtained over nine million dollars in relief for victims of sexual
harassment. Assistant U.S. Attorneys (AUSAs) have worked with trial
attorneys from the Housing and Civil Enforcement Section on many of
these cases and are increasingly leading these types of matters. For
example, the U.S. Attorney’s Office for the District of Minnesota led
the Department’s pattern-or-practice investigation and lawsuit
against Reese Pfeiffer, the owner and manager of numerous rental
properties in and around Minneapolis. 4 The case was resolved by a
consent decree, entered on October 25, 2021, requiring the defendants
to pay $750,000 in monetary compensation, including $736,000 to 23
aggrieved persons, 5 and a $14,000 civil penalty to the United States. 6
The decree also required the engagement of an independent property
manager and permanently enjoins Reese Pfeiffer from managing
rental properties in the future. AUSAs interested in learning more
about the Initiative and working on sexual harassment in housing
matters are encouraged to reach out to the Initiative.
While conducting a civil FHA investigation, you may come across
evidence of sexual harassment that might cross the line into criminal
conduct. For example, you could interview a potential aggrieved
person who tells you that her landlord physically forced her to touch
his genitals or give him oral sex to rent an apartment or avoid
eviction, and in so doing, interfered with her ability to rent or occupy
her home. In such situations, it is important to know your options so
you can take appropriate action. While we will briefly discuss the
criminal portion of the FHA, this article will primarily focus on the
Department’s civil enforcement of the FHA and working with local
prosecutors as they pursue the same alleged harasser for potential
violations of state criminal law.
4 See United States v. Pfeiffer, No. 20-cv-1974, 2021 U.S. Dist. LEXIS 115079
(D. Minn. June 21, 2021).
5 Consent Decree at 8, Pfeiffer, No. 20-cv-1974, ECF No. 81.
6 Id. at 10.

The Criminal Section of the Civil Rights Division and the Criminal
Divisions of the U.S. Attorneys’ Offices enforce the criminal portion of
the FHA. 7 It is a violation of section 3631 for anyone, “by force or
threat of force [to] willfully injure[], intimidate[], or interfere[] with, or
attempt[] to injure, intimidate or interfere with . . . [anyone] because
of his . . . sex.” 8 It is important to note that section 3631 does not have
a pattern-or-practice requirement. In other words, if even one person
experiences harassing conduct that rises to the level of force or threat
of force, there may be a violation of section 3631. If you find evidence
of sexual harassment that may cross the line into criminal conduct,
you, together with the Housing and Civil Enforcement Section, should
consult with the Criminal Section of the Civil Rights Division and the
U.S. Attorney’s Office’s Criminal Division as soon as possible.
If the Criminal Section of the Civil Rights Division and the U.S.
Attorney’s Office’s Criminal Division determine that the Department
does not have jurisdiction, or choose not to exercise it, local
prosecutors may be able to act. Frequently, conduct that deprives
persons of federally protected rights in violation of federal law also
violates state law. Consider familiarizing yourself with the criminal
laws of the state in which you are investigating—laws covering
groping or unwanted touching or penetration, including but not
limited to rape, sexual battery, molestation, sexual assault, and
sexual abuse. If the facts warrant a local prosecutor’s attention, you
may consider contacting the prosecutor’s office. Below are several
questions and answers designed to help you think through what you
need to consider and do as you prepare to reach out to and work with
local prosecutors in a civil FHA sexual harassment matter. These
questions and answers are meant to cover matters that are in the
investigative stage or in litigation. Finally, this article will direct
AUSAs to resources about getting involved with the Initiative.
7 42 U.S.C. § 3631.
8 Id.

II. Questions and answers
A. Is it okay to share information I obtain during my
investigation with local prosecutors?
When state or local authorities are prosecuting an individual for
conduct that also violates federal law, it is Department policy to
cooperate with the local prosecutors unless there is a good faith basis
that is supported by the law, the facts, or other established
Department policy to disagree with the state’s decision to prosecute or
with the state’s conduct in the prosecution. 9 That said, before you
share any information outside of the Department, you must consider
and comply with your professional responsibility obligations.
Specifically, you must comply with the rules related to the
confidentiality of information. In general, all information related to
our representation of the United States is confidential, whatever its
source, and we may not reveal it without the consent of our client. 10
You may consult with a professional responsibility officer (PRO) in
your Department component or U.S. Attorney’s Office, or with the
Department’s Professional Responsibility Advisory Office (PRAO) for
advice and guidance specific to your matter. 11 You may also consult
with your supervisors to determine who is authorized to give your
client’s consent to disclose confidential information to local
prosecutors.
B. Once I have my client’s consent, whom do I
contact?
If you do not already have a relationship with the local prosecutor’s
office, you may want to inquire within your office to see if others have
experience working with that prosecutor’s office. Sections of the Civil
Rights Division or the U.S. Attorney’s Office that enforce criminal
laws may have more opportunities to make such connections.
Additionally, if you have a relationship with other federal law
enforcement agencies, like HUD’s Office of Inspector General, consider
asking your contacts there. You may be able to gather information to
help you determine not only whom to contact, but what it might be
like to work with that prosecutor’s office. If you cannot identify a

10 See MODEL Rules of PRO. CONDUCT r. 1.6 cmt. 3.

contact, consider reaching out to the head of the sex crimes unit at the
local prosecutor’s office.
C. When should I reach out to local prosecutors?
The timing of when you reach out to local prosecutors will vary from
case to case. You may learn that a local law enforcement office has
opened a related state criminal investigation. For example, a potential
aggrieved person may tell you that she filed a complaint with the local
police department about being subjected to sexual harassment by her
landlord and that she is scheduled to give another statement to local
law enforcement. Or a federal agent might advise you that the local
prosecutor’s office opened a state criminal investigation with facts and
allegations that overlap with your civil FHA investigation.
Conversely, you may learn of the investigation directly from a local
law enforcement agency. In these instances, you should reach out to
the local prosecutor’s office as soon as possible. Not only could this
early communication lead to useful information sharing (see below),
but it could also help your office and local prosecutors avoid
unnecessary confusion. Through this communication, both offices can
gain a clearer understanding of the parameters of each other’s cases,
and both offices can make clear to victims and witnesses that two
different agencies may be in touch with them for different, but related,
purposes.
When you have no reason to believe local prosecutors are looking
into the same conduct by the alleged harasser, you should evaluate
the facts and circumstances and where you are in your investigation
before reaching out to the local prosecutor’s office. Does the local
prosecutor’s office have access to information that would advance your
investigation, such as police reports that may corroborate allegations
of harassment or retaliation? Such information may favor reaching
out early. How egregious is the alleged conduct, and is the alleged
harasser still in a position to have contact with tenants and
applicants? How many victims have you identified who would be
willing to speak with the local prosecutor’s office? Is there any benefit
to waiting until you have identified more? It is important to think
through these questions when deciding when to reach out to local
prosecutors. And of course, once you have made contact, it is
important to stay in touch so that each office knows what the other is
doing and neither office unintentionally interferes with the other’s
work.

D. What can or should I share with local
prosecutors?
After you have connected with the local prosecutor’s office, you need
to decide what information to share with them. In many cases, this
will be obvious. Local prosecutors will likely be interested in the
names and contact information of people who experienced harassment
that may have violated state criminal law. It may also be helpful to
share the names and contact information of corroborating witnesses
and copies of corroborating documents you obtained during your
investigation.
When sharing information, be mindful of some potential limitations.
Particularly consider discovery implications. Privileges may protect
your communications with the local prosecutor’s office, but you should
thoroughly research this question before sharing anything beyond
straight-forward factual information.
In addition, you may want to ask witnesses whether they have
concerns about you providing their identity and contact information to
a local prosecutor. By disclosing an unwilling witness’s identity, you
could potentially harm your relationship with the witness without
providing much benefit to the local prosecutor’s office. In those
instances, you might refrain from identifying the witness until that
person is ready to speak to the local prosecutor. In other instances,
however, the facts may be so egregious and suggestive of criminal
conduct that you may still believe it warranted to share that
information with the local prosecutor. Therefore, in your initial and
subsequent conversations with witnesses, it is important to avoid
promising that you will never share their identity and contact
information at a later stage. Finally, whenever you share a witness’s
identity and contact information with local prosecutors, make sure
you inform the witness.
E. What can or should I receive from local
prosecutors?
If a local prosecutor’s office is investigating similar conduct by the
same alleged harasser, it may be able to share highly relevant
information. This, of course, includes the names and contact
information of potential victims and corroborating witnesses. The
local prosecutor’s office may also be able to share witness statements,
court transcripts, police reports, and other documentary evidence. Of
course, you must consider and comply with your professional

responsibility obligations before accepting information from the local
prosecutor’s office. Specifically, you must comply with the rules that
prohibit using methods of obtaining evidence that violate the legal
rights of a person. 12 Determine whether the information the local
prosecutor’s office is offering to share with you is privileged or
otherwise legally protected and consult with a PRO or PRAO for
advice specific to your matter.
Keep in mind that the local prosecutor may have information highly
relevant to your civil FHA investigation but of minimal relevance to a
criminal prosecution. For instance, the prosecutor may have
interviewed individuals who may not have been a victim of a crime
but may have been subjected to harassing conduct that was severe or
pervasive enough to create a hostile housing environment. Similarly,
the prosecutor may be aware of victims who fall outside of the
criminal statute of limitations but may still be aggrieved persons in
your civil FHA case. Seek this information.
F. What other discovery or litigation considerations
should I be thinking about when working with
local prosecutors?
Some common issues arise when there are simultaneous civil and
criminal proceedings. For instance, a witness may be called to testify
or give sworn statements in both civil and criminal proceedings. If a
witness in your civil FHA investigation is scheduled to give a sworn
statement to local prosecutors in the criminal investigation, it may be
helpful to communicate with the local prosecutors in advance of that
statement to share what information you have in your possession
related to that witness. Explore whether it is an option to observe the
witness statement and confer with the local prosecutors and their
team during breaks. You should also consider thoroughly preparing
the witness—who quite possibly has never testified in any proceeding
in any venue—on what to expect. This may help avoid pitfalls
associated with giving two sworn statements. Moreover, by fully
explaining the reason for the two different proceedings—and the
witness’s role in the proceedings—you may help alleviate some burden
on the witness and clear up any confusion.
When facing two simultaneous proceedings, a defendant may seek a
stay in the civil FHA case pending the outcome of the criminal
12 See MODEL RULES OF PRO. CONDUCT r. 4.4.

prosecution. In anticipation of opposing such a motion, you may be
well advised to research the relevant caselaw in your jurisdiction
regarding litigation stays. Nonetheless, even if you believe you could
successfully oppose such a motion, you should consider the potential
benefits of a stay to your civil action.
G. What if I do not have an active sexual harassment
investigation? Would it still be worth doing
outreach to local prosecutors?
Yes. As part of the Department’s Sexual Harassment in Housing
Initiative, many U.S. Attorneys’ Offices have held outreach events in
their districts. Some offices have hosted community roundtables.
Others have held a series of meetings with relevant stakeholders in
their communities. Under either approach, most offices have reached
out to local law enforcement, including local prosecutors’ offices. By
doing outreach to local prosecutors, you can advise them that your
office conducts civil enforcement under the FHA. Then, if a local
prosecutor’s office subsequently learns of harassing conduct, she
would know to reach out to you to pass on information that may
justify a civil FHA investigation, whether or not she ultimately
concludes the conduct does not give rise to a criminal charge.
Additionally, through this outreach, you can develop relationships
with local prosecutors, which may ultimately benefit both offices in
future investigations.
III. Resources for AUSAs

The Initiative provides multiple resources for AUSAs. The Initiative
has developed many helpful materials—in multiple languages—that
AUSAs may distribute as part of their outreach, including flyers, palm
cards, and fact sheets. 13 Additionally, the Initiative created two public
service announcements (PSAs) about working with the Department to
stop sexual harassment in housing. 14 Press releases about the
13 Sexual Harassment in Housing Initiative—Resources, DEP’T OF JUST.,

https://www.justice.gov/crt/sexual-harassment-housing-initiative-resources
(updated Oct. 10, 2019).
14 Department of Justice, DOJ PSA: Sexual Harassment in housing Is Illegal,
YOUTUBE (July 16, 2018), https://www.youtube.com/watch?v=z76bA-mf7o0;

Department of Justice, DOJ PSA: Working with DOJ to Stop Sexual
Harassment in Housing (Aug. 29, 2019), https://youtu.be/vhskfe_7DHc.

Department’s sexual harassment FHA matters and summaries of
many such recent cases are also available. 15 Please reach out to the
Initiative for additional materials designed to assist AUSAs in
organizing and conducting roundtables and investigating and
litigating FHA sexual harassment matters. For interested AUSAs, the
Initiative holds quarterly brown bags with AUSAs across the country.
To learn more about the initiative, please contact Trial Attorney Erin
Meehan Richmond, Sexual Harassment Counsel and Coordinator, at
(202) 307-0385 or [email protected].
About the Authors
Erin Meehan Richmond is a Trial Attorney in the Housing and
Civil Enforcement Section of the Civil Rights Division. Since April
2021, she has served as the Section’s Sexual Harassment Counsel and
Coordinator. Ms. Meehan Richmond joined the Department in 2001
through the Attorney General’s Honors Program.
Michael Campion became an Assistant U.S. Attorney in the District
of New Jersey in 2007. Since 2013, his practice has focused almost
exclusively on handling a wide array of affirmative civil rights
investigations and litigation. He is currently the Chief of the U.S.
Attorney’s Office for the District of New Jersey’s Civil Rights Unit, a
position he has held since the unit’s inception in 2016.
15Sexual Harassment in Housing Initiative—News, DEP’T OF JUST.,

https://www.justice.gov/crt/sexual-harassment-housing-initiative-news
(updated Jan. 7, 2022).


Enforcement of the Fair Housing
Act and Equal Credit Opportunity
Act to Combat Redlining
Samantha Ondrade
Trial Attorney
I. Introduction
This article discusses the Department of Justice’s (Department)
enforcement of the Fair Housing Act 1 and the Equal Credit
Opportunity Act 2 to combat redlining, the practice by which lenders
avoid or exclude communities of color from equal access to credit
based on the demographic characteristics of their neighborhoods. 3 The
Department has long demonstrated a strong commitment to uphold
the promise of equal opportunity for all Americans, and fundamental
to that promise is the right to access lending services free from
discrimination. Providing communities of color with equal access to
credit is the foundation for equal access to homeownership, wealth
building, and social and geographic mobility.
To underscore the Department’s dedication to bringing its full
resources to bear to address redlining problems, Attorney General
Merrick B. Garland and Assistant Attorney General Kristen Clarke
announced in October 2021 the Combatting Redlining Initiative
(Initiative), 4 through which the Civil Rights Division is partnering
with U.S. Attorneys’ Offices (USAOs) nationwide to address patterns
of redlining. This Initiative represents the federal government’s most
1 Fair Housing Act, 42 U.S.C. §§ 3601–3619.

2 Equal Credit Opportunity Act, 15 U.S.C. §§ 1691–1691f.
3 In this article, when referring to the Department’s redlining enforcement
actions, the term “communities of color” refers to census tracts or

neighborhoods where a majority of residents are members of one or more of
the following racial, ethnic, or national origin groups, as defined by the U.S.
Census Bureau: American Indian or Alaska Native, Asian, Black or African
American, Hispanic or Latino, and Native Hawaiian or Other Pacific
Islander.
4 Press Release, Dep’t of Just., Justice Department Announces New Initiative
to Combat Redlining (Oct. 22, 2021).

significant enforcement effort to address redlining and to ensure equal
access to credit for all Americans.
As discussed later in this article, this Initiative is informed by the
successful settlements the Department has obtained as a result of its
redlining enforcement actions, which have expanded financial
opportunities not only for individual borrowers and previously
redlined communities, but for lenders as well.
II. Redlining: a brief background

A. The federal government’s historical role in
redlining
The burgeoning housing market of early and mid-twentieth century
America was replete with banks and savings unions, realtors, and
other private actors that discriminatorily denied loans to communities
of color and sought to exclude people of color from becoming
homeowners or moving into white neighborhoods. But it was the
federal government that institutionalized and endorsed the practice of
discriminatory redlining, beginning in the 1930s, when it launched a
series of New Deal programs designed to make homeownership widely
available to the American public but purposely excluded communities
of color. 5
In 1933, the federal government established the Home Owners’
Loan Corporation (HOLC) to rescue distressed urban homeowners in
default on their mortgages. 6 The HOLC purchased existing mortgages
and issued to homeowners new, low-interest amortized mortgages
with repayment schedules of up to 25 years, 7 ultimately making new
loans to one million American homeowners between 1933 and 1936. 8
A new innovation, the long-term, self-amortizing mortgage allowed
American homeowners to gain equity while their properties were still
mortgaged. 9 To evaluate lending risk, the HOLC created color-coded
5 See generally RICHARD ROTHSTEIN, THE COLOR OF LAW: A FORGOTTEN

HISTORY OF HOW OUR GOVERNMENT SEGREGATED AMERICA (2017); DOUGLAS
S. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND
THE MAKING OF THE UNDERCLASS (1993).
6 ROTHSTEIN, supra note 5, at 63.
7 ROTHSTEIN, supra note 5, at 63–64.
8 Amy E. Hillier, Redlining and The Home Owners’ Loan Corporation, 29 J.
URBAN HISTORY 394, 394 (2003).


“residential security” maps of major American cities in consultation
with local realtors and lenders, giving neighborhoods one of four
“grades”: green for the most desirable, blue for slightly less desirable,
yellow for declining neighborhoods, and red for undesirable or
“hazardous” neighborhoods. 10 HOLC based its color-coded grading
system on a number of criteria, such as the age and condition of
housing; the socioeconomic class and employment status of residents;
and critically, the ethnic and racial composition of the neighborhood.
Virtually all Black neighborhoods were rated hazardous and colored
red on the maps. 11 In contrast, the white, middle-class suburb of
Ladue in St. Louis, for example, was colored green because, according
to the appraiser in 1940, “it had ‘not a single foreigner or negro.”’ 12
The federal government’s explicit association of predominantly
Black neighborhoods with mortgage default risk were further
enshrined in the underwriting practices of the Federal Housing
Administration, established a year after the HOLC. The Federal
Housing Administration guaranteed “bank[-issued] mortgages that
covered 80 percent of purchase prices, had terms of twenty years, and
were fully amortized.” 13 Federal Housing Administration insurance
thereby effectively eliminated the risk of default for banks, which, in
turn, lowered interest rates for borrowers, resulting in a home
ownership boom. 14 To determine eligibility for insurance, the Federal
Housing Administration conducted its own appraisal of subject
properties, guided by a false and discriminatory principle touted by
policymakers at the time: Properties in racially integrated
neighborhoods and white neighborhoods located too close to Black
neighborhoods were too risky to insure, as the Federal Housing
10 Jacob W. Faber, We Built This: Consequences of New Deal Era Intervention

in America’s Racial Geography, 85 AM. SOCIO. REV. 739, 741 (2020);
ROTHSTEIN, supra note 5, at 64; see Hillier, supra note 8, at 395.
11 LaDale C. Winling & Todd M. Michney, The Roots of Redlining: Academic,
Governmental, and Professional Networks in the Making of the New Deal

Lending Regime, 108 J. AM. HIST. 42, 60 (June 2021) (“[A]ll Black
neighborhoods were marked red, with only six known exceptions.”); see
Hillier, supra note 8, at 395.
12 ROTHSTEIN, supra note 5, at 64.
13 Id.
14 MASSEY & DENTON, supra note 5, at 53.

Administration believed property values declined with the growing
presence of Black families. 15
The Federal Housing Administration enshrined this view in two
ways. First, like the HOLC, the Federal Housing Administration
color-coded its own maps, using red to mark areas with concentrations
of an “undesirable element,” such as racial or national origin groups. 16
Second, the Federal Housing Administration’s Underwriting Manual
included this instruction for property appraisers: “If a neighborhood is
to retain stability, it is necessary that properties shall continue to be
occupied by the same social and racial classes. A change in social or
racial occupancy generally leads to instability and a reduction in
values.” 17
To promote the racial homogeneity of neighborhoods, the Federal
Housing Administration favored areas where physical barriers, such
as boulevards or highways, separated Black areas from white areas
and recommended that deeds to properties and subdivisions for which
it issued mortgage insurance include explicit prohibitions against
resale to Black individuals, reasoning in the Underwriting Manual
that higher appraisal ratings were warranted if “[p]rotection against
some adverse influences is obtained,” with one “adverse influence”
being the “infiltration of inharmonious racial or nationality groups.” 18
Following World War II, the newly created Department of Veterans
Affairs (VA) began insuring mortgages for returning servicemembers.
The VA adopted the Federal Housing Administration’s housing
policies, and VA appraisers also relied on the Underwriting Manual. 19
By 1950, the Federal Housing Administration and the VA, together,
were insuring half of all new mortgages nationwide, with the vast
majority directed to white, middle-class suburbs, setting white
Americans on a path to build generational wealth through
homeownership. 20 These government practices further influenced the
private mortgage industry: The Underwriting Manual was widely
publicized and distributed, incentivizing private lenders interested in
15 ROTHSTEIN, supra note 5, at 64–65, 93.

16 Hillier, supra note 8, at 402.
17 FED. HOUSING ADMIN., UNDERWRITING MANUAL § 937 (1938); see Douglas S.
Massey, Still the Linchpin: Segregation and Stratification in the USA, 12

RACE & SOC. PROBS. 1, 2 (2020).
18 ROTHSTEIN, supra note 5, at 65, 83–84 (alteration in original).
19 Id. at 70.
20 Id.; MASSEY & DENTON, supra note 5, at 53.

securing Federal Housing Administration insurance for their
mortgage loans to follow its discriminatory appraisal guidelines. The
percentage of families living in owner-occupied homes skyrocketed
from 44% of the population in 1934 to 63% in 1969. 21 Communities of
color, however, were excluded from the housing boom that
characterized mid-twentieth century America. 22
B. Redlining’s enduring legacy
Redlining—institutionalized by the federal government during the
New Deal era and implemented then and now by private lenders—has
had a lasting negative impact. For American families, homeownership
remains the principal means of building wealth, and the deprivation
of investment in, and access to, mortgage lending services for
communities of color have contributed to families of color persistently
lagging behind in homeownership rates and net worth compared to
white families. 23 The gap in homeownership rates between white and
Black families is larger today than it was in 1960, before the passage
of the Fair Housing Act of 1968. 24 In 2021, the gap is about 30%, with
only 44.6% of Black families owning their homes compared to 74.2% of
white families. 25 Relatedly, data from 2019 show that “the typical
[w]hite family has eight times the wealth of the typical Black family
and five times the wealth of the typical Hispanic family.” 26 These data
evince the enduring effects of redlining.
21 MASSEY & DENTON, supra note 5, at 53.

22 One analysis estimates that, from 1934 to 1968, 98% of Federal Housing
Administration-backed loans were made to white applicants. George Lipsitz,
Government Policies and Practices that Increase Discrimination, in STILL
SEPARATE BUT UNEQUAL: THE STATE OF FAIR HOUSING IN AMERICA, THE NAT’L
COMM’N ON FAIR HOUSING & EQUAL OPPORTUNITY 69 (2008).
24 JUNG HYUN CHOI ET AL., EXPLAINING THE BLACK-WHITE HOMEOWNERSHIP
GAP 1 (2019) at 11 (Figure 1 displaying Black-white homeownership gaps

from 1960 to 2017).
25 Press Release, U.S. Census Bureau, Quarterly Residential Vacancies and
Homeownership, Third Quarter 2021 9 (July 27, 2021).

26 Neil Bhutta et al., Disparities in Wealth by Race and Ethnicity in the 2019
Survey of Consumer Finances, FED. RESERVE SYS. (Sept. 28, 2020).

III. FHA and ECOA enforcement
The Department is committed to using every tool at its disposal to
take on the substantial task of addressing redlining, especially
vigorous enforcement of civil rights laws. The Civil Rights Division’s
Housing and Civil Enforcement Section has primary responsibility for
investigating violations and bringing suit to enforce the Fair Housing
Act (FHA) and may work with USAOs on these investigations and any
resulting litigation. 27 Enacted in 1968, the FHA prohibits
discrimination concerning the sale, rental, and financing of housing
and other residential real estate-related transactions based on race,
color, religion, sex, familial status, national origin, or disability. 28
Although the FHA outlaws lending discrimination related to housing,
other types of lending discrimination, such as discrimination in
consumer or auto lending, were without federal recourse until 1974,
when the Equal Credit Opportunity Act (ECOA) was enacted to
prohibit creditors from discriminating “on the basis of race, color,
religion, national origin, sex or marital status, age,” or source of
income with respect to any aspect of a credit transaction. 29 The
Assistant Attorney General for the Civil Rights Division is authorized
to bring suit to enforce ECOA, and the Housing and Civil Enforcement
Section and USAOs may work together to investigate and litigate
violations of ECOA. 30
The Department may bring civil enforcement actions under the FHA
and ECOA whenever there is reason to believe that an entity is
engaged in a pattern or practice of resistance to the full enjoyment of
rights secured by those statutes. 31 The FHA further authorizes the
Department to bring suit when a defendant has denied rights to a
group of persons and that denial raises an issue of general public
importance. 32 The Department has and will continue to invoke this
authority to bring enforcement actions against lenders who engage in
a pattern or practice of discrimination by redlining communities of
color.
27 JUSTICE MANUAL 8-2.230, 8-2.231.

28 42 U.S.C. §§ 3601–3619.
29 15 U.S.C. §§ 1691–1691f.
30 JUSTICE MANUAL 8-2.230, 8-2.232; 28 C.F.R. § 0.50.
31 42 U.S.C. § 3614(a); 15 U.S.C. § 1691e.

32 42 U.S.C. § 3614(a).

Discriminatory redlining violates both the FHA and ECOA. Modern-
day redlining practices can be as overt as the Federal Housing
Administration’s Underwriting Manual or the HOLC’s red-shaded
maps, but other indicia that a lender has engaged in redlining could
include, but are not limited to, some of the following conduct:
• drawing an assessment area under the Community
Reinvestment Act (CRA) 33 that excludes communities of color;
• failing to maintain or open branch locations in communities of
color but maintaining branches in predominantly white areas;
• marketing, advertising, and conducting outreach only to
predominantly white communities and avoiding communities of
color; and
• generating significantly fewer mortgage loan applications and
making fewer loans in communities of color when compared to
peer lenders. 34
A. The Civil Rights Division and USAOs partner to
combat redlining
Strong partnerships with U.S. Attorneys’ Offices nationwide
facilitate effective enforcement against redlining. USAOs can leverage
their expertise, critical knowledge about the local housing market and
the credit needs of communities of color, and existing relationships
with key stakeholders to bolster the Department’s fair-lending
enforcement actions. The Housing and Civil Enforcement Section has
benefited significantly from partnerships with USAOs to enforce the
FHA and ECOA, and many USAO partners have expressed a desire
and commitment to address potential redlining problems in districts
across the country.
33 Community Reinvestment Act of 1977, 12 U.S.C. §§ 2901–2908.

Institutions subject to the CRA and its enabling regulations must self-
identify the communities that they serve in “assessment areas.” Federal
regulators look at an institution’s assessment area to evaluate whether that
institution is meeting the credit needs of its entire community.
34 For a list of the Housing and Civil Enforcement Section’s prior fair-lending
enforcement matters, see Housing and Civil Enforcement Cases, DEP’T OF

JUST., https://www.justice.gov/crt/housing-and-civil-enforcement-section-
cases-1 (last visited Dec. 9, 2021).

To that end, the Department has announced the Combatting
Redlining Initiative, through which the Civil Rights Division is
partnering with USAOs nationwide to analyze lending patterns across
the country and investigate potential redlining activity. The creation
of this Initiative reflects the Department’s commitment to the
aggressive enforcement of fair lending laws and an expansion of the
Department’s efforts to ensure equal access to credit under the
leadership of Attorney General Merrick Garland.
B. The Department’s redlining settlements and
common relief
In the past 20 years, the Department has developed and resolved 16
redlining cases across the nation, in both rural and urban areas where
historical patterns of residential racial segregation are deeply
entrenched, including in Alabama, Connecticut, Illinois, Indiana,
Michigan, Minnesota, Missouri, New Jersey, New York, Ohio,
Pennsylvania, Tennessee, and Texas. The defendant lenders in these
cases denied equal access to mortgage lending services to communities
of color, and following Department investigations, they agreed to
settle the Department’s claims by changing their lending practices
and providing remedies to residents of previously redlined
neighborhoods for credit the lenders failed to make available to those
neighborhoods.
A key remedial element in the Department’s redlining settlements is
the establishment of a loan subsidy fund. Through these loan subsidy
funds, residents of redlined areas can receive, among other types of
subsidies, a direct grant for down payment or closing cost assistance
or payment on mortgage insurance premiums. These loan subsidies
can enable families in redlined neighborhoods to recognize their
dreams of homeownership.
The Department’s redlining settlements have resulted in more than
$70 million in loan subsidies, a figure that has had tangible benefits
for previously redlined communities nationwide. But these
settlements also feature other, significant forms of relief designed to
foster lending to residents of previously redlined areas and to deter
future violations of the FHA and ECOA. Other forms of relief reached
in the Department’s redlining settlements include requiring the
defendant lenders to:
• redraw their CRA assessment areas to include communities of
color;

• establish new depository branches or loan production offices in
redlined areas;
• assess the residential real estate-related credit needs of
communities of color in their lending service areas;
• enact corrective outreach and advertising measures to promote
products and services to previously redlined areas;
• increase access to financial literacy and credit repair programs
for communities of color; and
• adopt new policies, practices, and procedures to ensure
compliance with fair lending obligations.
The Department’s redlining settlements constitute a “triple win”: A
win for residents of previously redlined areas, a win for communities
affected by redlining, and a win for financial institutions. The relief
awarded in the Department’s redlining cases expand equal access to
credit and homeownership opportunities for historically underserved
residents in redlined communities. These remedial measures may not
only transform communities, but also may result in increased profits
for the banks. Highlighted below are just a few success stories from
the Department’s redlining enforcement actions.
1. United States & CFPB v. BancorpSouth Bank 35
In 2016, following a joint investigation with the Consumer Financial
Protection Bureau (CFPB), the Civil Rights Division and the U.S.
Attorney’s Office for the Northern District of Mississippi filed a
consent order resolving FHA and ECOA claims against BancorpSouth
Bank (BancorpSouth). 36 The complaint alleged that BancorpSouth
engaged in discrimination at virtually every stage of the lending
process—from how the bank solicited loan applications to the
discretion it granted loan officers and underwriters to approve and
price the loans. 37 With respect to redlining, the Department and
CFPB alleged that BancorpSouth excluded nearly all majority-
minority neighborhoods in the Memphis, Tennessee, area from its
lending service area, located all 22 of its branches outside of majority-
minority neighborhoods, and generated only 9% of its loan
35 United States v. BancorpSouth Bank, No. 16-cv-118 (N.D. Miss. 2016).

36 Consent Order, BancorpSouth Bank, No. 16-cv-118, ECF No. 8.
37 See Complaint, BancorpSouth Bank, No. 16-cv-118, ECF No. 1.

applications from majority-minority areas in the Memphis area, while
its peers generated 27.6% of their applications from those areas. 38
Under the terms of the settlement it reached with the Department
and CFPB, BancorpSouth agreed to pay a $3 million civil penalty to
the CFPB and nearly $7 million in relief for impacted individuals and
neighborhoods, of which $4 million was allocated to a loan subsidy
program to benefit residents of previously redlined areas in the
Memphis area. 39 The bank also agreed to invest at least $800,000 in
advertising, outreach, and community partnership efforts; to amend
its pricing and underwriting policies; to develop strong internal
standards to ensure compliance with fair lending obligations; and to
provide employees, senior management, and the Board of Directors
with fair lending training. 40
Beyond the benefits the resolution afforded to the Memphis
community and residents of previously redlined areas in Memphis,
the settlement also was a “win” for BancorpSouth. In addition to
improving its internal policies to promote fair lending, the bank saw
increased profits from its new lending activity in communities of color.
Home Mortgage Disclosure Act (HMDA) Loan Application Rates

Majority-Minority Tracts
Memphis MSA
(created using publicly available HMDA data)
40.00%
35.00%
30.00%
25.00%
20.00%
15.00%
10.00%
5.00%
0.00%
2013 2014 2015 2016 2017 2018 2019 2020
Market Peer Lenders BancorpSouth
38 Id.
39 See Consent Order, supra note 36.
40 Id.

The graph above shows how, following the 2016 redlining
settlement, BancorpSouth broadened its lending to previously
redlined tracts in Memphis. Before 2016, the bank substantially
trailed its peer lenders and all lenders in the mortgage market in
Memphis. The bank’s loan application rates steadily improved in
majority-minority areas in Memphis after 2016, and after only a few
years, the bank began outperforming its peers and all lenders in the
Memphis mortgage market in receiving applications from those same
neighborhoods.
2. United States v. Midwest BankCentre 41
The resolution of the Department’s redlining complaint against
Midwest BankCentre (Midwest) illustrates how enforcement of the
FHA and ECOA to combat redlining can transform communities. This
case was handled jointly by the Civil Rights Division and the U.S.
Attorney’s Office for the Eastern District of Missouri. The complaint
alleged that Midwest BankCentre failed to open a single branch or
loan production office in majority-Black neighborhoods of St. Louis,
Missouri, while maintaining seven branch locations in majority-white
neighborhoods. 42 Further, despite being on notice for several years
that it was underserving communities of color based on its own
annual reports, Midwest took no steps to change its conduct: In a five-
year period, Midwest received less than 3% of its mortgage loan
applications from majority-Black neighborhoods, even while its peers
generated 10.7% of their applications from those areas. 43
At the time the Department settled its redlining claims against
Midwest in 2011, northern St. Louis County, located outside of the
city of St. Louis, had no brick-and-mortar bank branches for miles;
instead, the area was overrun with payday lenders and check-cashing
establishments. 44 The proportion of Black households in St. Louis that
were unbanked—without a deposit or checking account—was the
highest in the country. 45 After the consent order negotiated by the
Department, Midwest established a $900,000 loan subsidy fund and
41 United States v. Midwest BankCentre, No. 11-cv-1086 (E.D.

Mo. 2011).
42 Complaint, Midwest BankCentre, No. 11-cv-1086, ECF No. 1.
43 Id. ¶ 21.
44 Lisa Brown, One Year After Opening, Pagedale Bank Branch Fills Unmet
Need, ST. LOUIS POST-DISPATCH (Nov. 28, 2013).

45 Id.

offered no-fee, no-minimum balance checking accounts to residents of
majority-Black areas in St. Louis. 46 Under the consent order, Midwest
opened a branch in the City of Pagedale, located in the heart of St.
Louis County’s banking desert. 47 The Pagedale branch was Pagedale’s
“first bank branch in its 63-year history.” 48 Midwest soon found that
the Pagedale branch became profitable earlier than it had expected.
After Midwest opened the Pagedale branch, new commercial
enterprises, including a grocery store, movie theater, and health clinic
sprung up around the branch. 49 Because of this development, a few
years later, Midwest voluntarily opened another branch on the ground
floor of one of the largest Black churches in the area.
The beneficial effects of the resolution of this case continue: Midwest
Bank is now often cited in the media for its work in investing in the
previously redlined areas. In 2018, seven years after entering into the
consent order with the Department, Midwest received the
Independent Community Bankers National Community Service
Award “for its high-impact service and economic empowerment
programs that have brought mainstream banking services to more
than 1,200 previously ‘unbanked’ or ‘underbanked’ families in the St.
Louis, Missouri metropolitan area.” 50
IV. Conclusion
Robust enforcement of the FHA and the ECOA by the Civil Rights
Division and U.S. Attorneys’ Offices has been shown to have a
substantial, beneficial impact on residents of previously redlined
areas, those communities, and lenders. By collaborating with U.S.
Attorneys’ Offices nationwide, the Department will continue to
demonstrate its commitment to combat redlining wherever lenders
engage in it.
46 Agreed Order, Midwest BankCentre, No. 11-cv-1086, ECF No. 9.

47 Brown, supra note 44.
48 Id.
49 Id.
50 Press Release, Midwest BankCentre, ICBA Names Midwest BankCentre as
a National Award Recipient For the 2018 National Community Bank Service
Awards (July 25, 2018).

About the Author
Samantha Ondrade is a Trial Attorney in the Housing and Civil
Enforcement Section (HCE) of the Civil Rights Division. Before joining
HCE, Sam worked as a litigation associate in private practice and
clerked on the U.S. Court of Appeals for the Fourth Circuit and the
U.S. District Court for the District of Columbia. She graduated from
Brown University and received her J.D., magna cum laude, from
Georgetown University Law Center.


Testing Can Uncover
Discrimination in Lending
Noah Sacks
Trial Attorney
I. Introduction
The Equal Credit Opportunity Act 1 (ECOA) prohibits discrimination
in credit transactions “on the basis of race, color, religion, national
origin, sex or marital status, or age.” 2 ECOA also prohibits a creditor
from discouraging applications. 3 Despite ECOA’s prohibitions,
protected borrowers continue to face discrimination in obtaining
credit. Detecting discrimination in the lending context can be difficult.
Protected borrowers and credit applicants rarely know if they got the
same deal as other similarly qualified applicants. Also, prospective
borrowers who were discouraged from applying may never know that
they were discouraged because of a protected characteristic.
Testing—when individuals pose as prospective renters, borrowers,
or patrons for the purpose of gathering information—is a powerful tool
in uncovering unlawful discrimination that might otherwise escape
detection. While testing has typically been used to detect
discrimination in housing, the Civil Rights Division’s Fair Housing
1 Equal Credit Opportunity Act, 15 U.S.C. §§ 1691–1691f (1974).

2 See 15 U.S.C. § 1691(a)(1). The Fair Housing Act, 42 U.S.C. §§ 3601–3619
(1968), similarly prohibits discrimination in mortgage lending and other
home lending on the basis of race, color, religion, sex, handicap, familial
status, or national origin. 42 U.S.C. § 3605. Accordingly, discrimination in
home lending is prohibited by both the FHA and ECOA.
3 See 15 U.S.C. § 1691e(g) (providing that certain agencies with
administrative enforcement authority under ECOA “shall refer the matter to

the Attorney General whenever the agency has reason to believe that 1 or
more creditors has engaged in a pattern or practice of discouraging or
denying applications for credit in violation of section 1691(a) of this title.”);
see also 12 C.F.R. §§ 202.4(b), 1002.4(b) (“Discouragement. A creditor shall
not make any oral or written statement, in advertising or otherwise, to
applicants or prospective applicants that would discourage on a prohibited
basis a reasonable person from making or pursuing an application.”).

Testing Program (FHTP) also conducts testing to ferret out unlawful
discrimination in the lending and public accommodation settings.
Recently, the Department of Justice (Department) resolved its first
ever ECOA lawsuit based on evidence uncovered by the FHTP—
United States v. Guaranteed Auto Sales. 4 Guaranteed Auto Sales is an
important case because it not only demonstrates the viability of
testing for discrimination in credit, but that testing can be effective at
detecting discouragement, which occurs during the pre-application
stage. The
pre-application stage is a period when credit discrimination likely
occurs but is seldom caught.
As discussed below, numerous cases, studies, and reports indicate
that discrimination occurs in the credit industry, including when
obtaining a mortgage or financing a vehicle. Testing can be a valuable
tool in combating credit discrimination, and there is a continuing need
for testing in the credit industry.
II. Testing is a valuable tool in gathering

evidence of discrimination
A. Testing methodology
Testers are individuals who, without an intent to rent or purchase a
home or apartment or obtain a loan, pose as renters, purchasers, or
applicants for the purpose of collecting evidence of unlawful
discriminatory practices. 5 Because it is “frequently difficult to develop
proof in discrimination cases[,] . . . the evidence provided by testers is
frequently valuable, if not indispensable.” 6
Testing is typically accomplished through “matched-pair”
testers—individuals who have the same or similar qualifications (for
example, income, employment, credit score) and differ only in a
protected characteristic, such as race, sex, national origin, or religion.
In the housing rental context, matched testers each contact the same
provider to inquire about the availability of units, rent, security
4 No. 19-cv-02855 (D. Md. 2020).

5 See Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982);
United States v. Balistrieri, 981 F.2d 916, 924 (7th Cir. 1992) (accepting
“testing” as method of ferreting out discrimination and explaining how it was
used to show a pattern or practice of discrimination, in violation of 42 U.S.C.
§ 3614).
6 Richardson v. Howard, 712 F.2d 319, 321 (7th Cir. 1983).

deposit, application requirements, and other rental terms. 7 In the
mortgage or lending context, testers may inquire about interest rates,
down payment requirements, or loan amounts for which they may
qualify. 8 The information obtained by the testers is then compared to
see if there are any material differences in how the testers are
treated. For example, a housing provider may tell Black testers that
there are no available units and tell white testers that there is
availability, 9 or lenders may steer home purchasers to certain
neighborhoods based on their race or tell protected borrowers that
they need to put more money down than comparable white
borrowers. 10
Courts, including the Supreme Court, have approved of testing as a
means of uncovering evidence of unlawful discrimination. 11 Testing
has been upheld over challenges based on standing, 12 whether it
violates the Fourth Amendment, 13 and whether the information it
7 See, e.g., Balistrieri, 981 F.2d at 924 (“In conducting a test, the [group
conducting the testing] sends two people posing as customers, one white and
one black, to a realtor, home, or apartment complex. The two people would be
as close to identical in distinguishing characteristics other than race—for
example, age and marital status—as possible. The two would inquire about
the identical type of housing. Differences in response to the two testers—for
example, quoting higher prices to a black, or giving the two testers different
stories about the availability of an apartment—could indicate
discrimination.”).
8 See, e.g., MARGERY AUSTIN TURNER ET AL., DEP’T OF HOUSING & URBAN DEV.
ALL OTHER THINGS BEING EQUAL: A PAIRED TESTING STUDY OF

MORTGAGE LENDING INSTITUTIONS 12 (2002).
9 See e.g., Balistrieri, 981 F.2d at 929 (“Five sets of testers testified in this
case. In each test, the black person was treated less favorably: he or she was
either shown fewer apartments, quoted higher rents, or quoted later dates of
availability; in some cases, all those occurred on the same test.”).
10 See, e.g., Paschal v. Flagstar Bank, 295 F.3d 565, 578 (6th Cir. 2002)
(noting that evidence demonstrated that loan officers advised testers to look
for homes in neighborhoods associated with tester’s race).
11 Havens, 455 U.S. at 373; Balistrieri, 981 F.2d at 924.
12 See, e.g., Havens, 455 U.S. at 373.

13 Northside Realty Assocs., Inc. v. United States, 605 F.2d 1348, 1355
(5th Cir. 1979) (“[T]here was no Fourth Amendment violation because

Northside had no reasonable expectation of privacy with regard to the areas
‘searched’ and the items ‘seized’ by the testers . . . . The testers did no more

uncovers is admissible, relevant, or reliable. 14 As discussed below, the
Department and fair housing organizations have successfully used
testing countless times to combat housing discrimination. 15
B. The FHTP has used testing to uncover
discrimination since 1992
In 1991, the FHTP was established within the Civil Rights
Division’s Housing and Civil Enforcement Section. 16 It began testing
the following year. The program currently tests providers of housing,
lending, and public accommodations to identify violations of the Fair
Housing Act (FHA), ECOA, Title II of the Civil Rights Act of 1964, 17
the Servicemembers Civil Relief Act, 18 and the Americans with
than what any member of the home-buying public is invited, and indeed
welcomed, to do.”).
14 Paschal, 295 F.3d at 578 (finding that testing evidence was relevant and
admissible over Federal Rule of Evidence 403 objections); Richardson, 712

F.2d at 322 (“[T]ester evidence may well receive more weight because of its
source. Testers seem more likely to be careful and dispassionate observers of
the events which lead to a discrimination suit than individuals who are
allegedly being discriminated against.”).
15 See, infra, section II(2); see also United States v. Fountainbleau
Apartments L.P., 566 F. Supp. 2d 726, 731 (E.D. Tenn. 2008); Kate Sablosky
Elengold, Consumer Remedies for Civil Rights, 99 B.U. L. Rev. 587, 589 n.2
(2019) (citing cases).
16 See Fair Housing Testing Program, DEP’T OF JUST.,
https://www.justice.gov/crt/fair-housing-testing-program-1 (updated Sept. 8,

2021) ; see also Bill Lan Lee, An Issue of Public Importance: The Justice
Department’s Enforcement of the Fair Housing Act. 4 CITYSCAPE, no. 3, 1999
at 38–39.
17 Civil Rights Act of 1964 tit. II, 42 U.S.C. §§ 2000a to 2000a-6. Title II
prohibits discrimination on the basis of race, color, religion or national origin

at places of public accommodation such as hotels, restaurants, and places of
exhibition or entertainment. 42 U.S.C. § 2000a
18 Servicemembers Civil Relief Act, Pub. L. No. 108-189, 117 Stat. 2835
(2003). The Servicemembers Civil Relief Act (SCRA) is a law designed to ease
financial burdens on servicemembers during periods of military service. See
50 U.S.C. §§ 3901–4043. The SCRA is a federal law that provides protections
for military members as they enter active duty and covers issues such as
rental agreements, security deposits, prepaid rent, evictions, installment
contracts, credit card interest rates, mortgage interest rates, mortgage
foreclosures, civil judicial proceedings, automobile leases, life insurance,
health insurance and income tax payments. Id.

Disabilities Act. 19 The program conducts systematic testing in
targeted geographic areas, as well as testing based on complaints
against a particular business or housing provider, testing to support
the Division’s
pre-investigations, and testing to determine whether defendants are
complying with consent decrees. The FHTP engages in testing
nationwide, from large cities to small rural towns. The program
frequently conducts testing to assist various U.S. Attorneys’ Offices
with discrimination complaints or pre-investigations. Most of the
FHTP’s testers are Department employees who volunteer to assist
with a particular investigation.
Since 1992, the Department has resolved 110 pattern-or-practice
testing cases with evidence directly generated by the FHTP, leading to
the recovery of more than $14.3 million, including $12 million in
damages and over $2.3 million in civil penalties. 20
Cases generated by the FHTP have often resulted in substantial
damages and civil penalties. For example, the Division’s largest
settlement based on evidence uncovered by the FHTP involved
allegations of race and familial status discrimination by the owners
and managers of a 1,142-unit apartment complex in New Jersey and
was resolved for a total of $1.5 million, including $1.3 million in
damages and a $200,000 civil penalty. 21
The Department has brought lawsuits based on FHTP-generated
testing evidence that demonstrates a wide variety of discrimination,
19 Americans with Disabilities Act of 1990, Pub. L. No. 101-336,
104 Stat. 327.

20 The United States is statutorily authorized to pursue “pattern or practice”
cases under the FHA and ECOA. See 42 U.S.C. § 3614(a); 15 U.S.C. § 1691(e).
21 United States v. Chandler Assocs., No. 97-cv-3114 (D.N.J. Jun. 25, 1997).

including in the availability of housing units, 22 terms and conditions, 23
and steering. 24 Cases based on FHTP evidence have alleged
discrimination on the basis of race, national origin, familial status, 25
and disability, 26 and in public accommodations. 27
22 See, e.g., United States v. Kendall House Apartments, No. 95-cv-2050 (S.D.
Fla. Nov. 13, 1996); see also United States v. S-2 Properties, Inc.,
No. 13-CV-1421, 2014 WL 201086, at *1 (W.D. Pa. Jan. 17, 2014) (denying
defendant’s motion to dismiss United States’ claims that defendant violated
the FHA on the basis of race by telling Black testers that no units were
available); United States v. Habersham Properties, Inc., 319 F. Supp. 2d
1366, 1369
(N.D. Ga. 2003) (finding that testing evidence was sufficient to create
material question of fact whether defendants discriminated against
prospective Black renters on the basis of race regarding availability of units);
United States v. Garden Homes Mgmt., Corp., 156 F. Supp. 2d 413, 416
(D.N.J. 2001) (denying defendant’s motion for summary judgment on United
States’ FHA claims for race and familial status discrimination);
United States v. Village Realty of Staten Island, Ltd, No. 20-cv-04647
(E.D.N.Y. April 5, 2021) (resolving allegations of race discrimination).
23 United States v. Pine Properties, Inc., No. 07-cv-11819 (D. Mass. 2008)
(resolving allegations of national origin discrimination against Cambodian-

American persons).
24 See, e.g., United States v. J & R Assocs., No. 15-cv-11748 (D. Mass. 2015)
(resolving allegations that the owner was steering families with children into
certain buildings, floors, and units).
25 The FHA prohibits discrimination on the basis of familial status, see
42 U.S.C. §§ 3604–3606, which includes whether a person has children. See

42 U.S.C. § 3602(k); Fountainbleau Apartments L.P., 566 F. Supp. 2d at 728
(granting summary judgment on liability on United States’ FHA familial
status claims based in part on tester evidence).
26 See, e.g., United States v. Rose, No. 02-cv-73518 (E.D. Mich. 2005)
(resolving allegations that defendant developers and architects failed to

include accessible features required by the FHA and ADA in apartment
complexes);
United States v. LCW Family Ltd. P’ship, No. 8-13-cv-00350 (D. Neb.
July 30, 2014) (resolving allegations that housing provider refused to waive
“no pets” policy for assistance animals).
27 See, e.g., United States v. Pasco Cnty. Fair Ass’n, Inc., No. 10-cv-01554
(M.D. Fla. 2010) (resolving allegations that defendants charged and quoted
Hispanic customers and prospective customers higher deposit fees for renting
banquet hall); United States v. Satyam, L.L.C, No. 01-cv-0046 (S.D. Ala.
2002) (resolving allegations that hotel discriminated against African

More recently, in United States v. Guaranteed Auto Sales, the FHTP
conducted matched-pair testing at a “buy here, pay here” used car
dealership to determine whether it was discriminating on the basis of
race, a violation of ECOA, against customers who sought to finance
purchases. 28 Multiple matched pairs of Department employee
volunteers each visited the dealership to inquire about financing a
used car. The testers covertly audio recorded their interactions with
the dealership agents so that test coordinators could easily compare
the information and treatment provided to each tester. 29 Based on the
testing work of the FHTP, the Department filed a lawsuit alleging
that white testers were offered more favorable credit terms than
similarly situated Black testers and that the dealership took actions
to discourage Black testers at the same time it encouraged white
American guests by steering them to particular floors and rooms, charging

them higher prices than white guests were charged, and denying them equal
access to hotel facilities and services).
28 Buy here, pay here (BHPH) dealers specialize in the subprime lending
market, selling used cars to customers with poor or marginal credit. Instead
of connecting customers with a bank or other institutional lender to finance
their used car purchases, like a typical car dealership, BHPH dealers provide
financing themselves, allowing customers to enter into installment sale
contracts. BHPH dealers may earn a profit not only from selling cars, but
also from financing them. BHPH finance deals often involve high-mileage,
older vehicles with inflated sales prices and high interest rates. As a result,
approximately 25% to 30% of BHPH customers default on their loans. See
CTR. FOR RESPONSIBLE LENDING, THE STATE OF LENDING IN AMERICA & ITS
IMPACT ON U.S. HOUSEHOLDS 64, 67, 73–74 (2012). Some BHPH dealers
generate revenue by selling and repossessing the same car multiple times.
See, e.g., Williams v. Regency Fin. Corp., 309 F.3d 1045, 1046–47 (8th Cir.
2002) (describing one BHPH dealership’s practices—selling used cars at
retail “for at least twice their cost,” charging 18% interest on installment
contracts, repossessing the car upon the customer’s default, creating a
deficiency through an artificial repo sale, and selling the car to another buyer
to repeat the cycle); Ken Bensinger, A Vicious Cycle in the Used-Car
Business, L.A. TIMES
(Oct. 30, 2011), https://www.latimes.com/business/la-xpm-2011-oct-30-la-fi-
buy-here-pay-here-part1-storyb-story.html (reporting 25% default rate).
29 As noted by one court, the practice of recording tests eliminates factual
disputes over what occurred. See Garden Homes Mgmt., Corp., 156 F. Supp.
2d at 416, n.3 (“Defendants do not controvert the Government's version of the
fair housing tests that occurred, presumably because those tests were tape-
recorded.”).

testers. 30 For example, white testers were offered the option of
splitting their down payments into two payments over a 30-day
period, while Black testers were asked to make the down payment on
the day they visited the lot, even though the Black testers offered
more money down to the dealership. 31 Black testers were told that
they needed a higher down payment than the white testers were told
for the same car (usually $2,000 instead of $1,500). A Black tester was
quoted bi-weekly payments that were higher than what the white
tester was quoted for the same car ($150 instead of $125).
The case was resolved with a consent order, requiring Guaranteed
Auto Sales to take several steps to come into compliance with ECOA,
including ECOA training, adoption of specific fair lending policies and
procedures, and retention and reporting of customer and transaction
data. 32
III. There is a Need for Testing in the

Lending Industry
A. Discrimination continues to occur in the lending
industry
Several studies conclude that Black and Hispanic borrowers face
discrimination in the credit market as compared to similarly situated
white borrowers. For example, a 2019 white paper from the National
Bureau of Economic Research found that “accepted Latinx and
African-American borrowers pay 7.9 and 3.6 basis points more in
interest for home-purchase and refinance mortgages, respectively,
because of discrimination.” 33 The authors estimate that this
discrimination costs Black and Hispanic borrowers $765 million in
extra interest per year. This study controlled for creditworthiness and
30 See Complaint and Jury Demand, Guaranteed Auto Sales, 19-cv-02855,

ECF No. 1.
31 Id.
32 See Consent Order, Guaranteed Auto Sales, 19-cv-02855, ECF No. 13. The
consent order did not include damages for aggrieved applicants or prospective
applicants because available records were insufficient to identify customers
who may have been discriminated against by the dealership.
33 Robert Bartlett, et. al., Consumer-Lending Discrimination in the FinTech
Era 5 (Nov. 2019) (unpublished research paper). A “basis point” is one

hundredth of one percent of the loan amount.

other risk-based variables, including income, loan-to-value ratio,
location of property, and borrower credit score. 34
A recent study using data reported under the Home Mortgage
Disclosure Act (HMDA) 35 found that prospective Black borrowers were
nearly three times more likely to be denied a loan compared to white
applicants with the same income and loan amount. 36 Other studies
have also found that Black applicants are denied loans at rates much
higher than comparable white applicants. 37 A recent study by the
National Community Reinvestment Coalition, which used testing,
found that banks are more likely to encourage white customers to
apply for a loan than better-qualified Black customers. 38
Studies also conclude that unequal treatment regarding credit and
lending may be occurring in the auto sales industry. A recent report
from the National Fair Housing Alliance (NFHA), which was based on
matched-pair testing, found that, in 62.5% of the tests, non-white
testers—who were better qualified than their white counterparts—
received more costly pricing options and that, in 75% of the tests,
white testers were offered more financing options than their better-
qualified, non-white counterparts. 39 NFHA’s recent report follows an
earlier 1995 report, also based on matched-pair testing, finding that
Chicago-area car dealerships attempted to sell the same car for an
34 Id. at 9–10.
35 Home Mortgage Disclosure Act of 1975, 12 U.S.C. § 2801–1810. HMDA and
its implementing regulation, Regulation C, requires banks to collect and
report applicant data, including the race and income of the applicant and
whether a loan was denied. See Id.. Regulation C’s data requirements are
codified at 12 C.F.R. § 1003.4.
36 EMMANUEL MARTINEZ & AARON GLANTZ, HOW REVEAL IDENTIFIED LENDING
DISPARITIES IN FEDERAL MORTGAGE DATA 10 (n.d.).

37 See Lincoln Quillian, Racial Discrimination in the U.S. Housing and
Mortgage Lending Markets: A Quantitative Review of Trends, 1976–2016,

RACE & SOC. PROBS 12, 13–28 (2020) (concluding that Black and Hispanic
mortgage applicants continue to be rejected at higher rates than whites with
similar characteristics and are also more likely to receive high-cost mortgage
products).
38 See ANNELISE LEDERER ET AL., NAT’l Cmty. Reinvestment Coal., LENDING
DISCRIMINATION WITHIN THE PAYCHECK PROTECTION PROGRAM, NATIONAL

COMMUNITY REINVESTMENT COALITION (n.d.).
39 LISA RICE & ERICH SCHWARTZ JR., DISCRIMINATION WHEN BUYING A CAR,
HOW THE COLOR OF YOUR SKIN CAN AFFECT YOUR CAR-SHOPPING

EXPERIENCE, NATIONAL FAIR HOUSING ALLIANCE 5 (2018).

average of approximately $1,100 more to Black males than white
males. 40
B. Past ECOA enforcement by the Department has
focused on pricing and redlining
The Department’s past ECOA cases primarily focused on pricing
discrimination and redlining. Pricing discrimination occurs when
lenders charge different interest rates or fees to similarly situated
borrowers based on a protected characteristic. Redlining is when
banks avoid offering credit services in, or making loans to, a specific
area based on the race or national origin of the residents of those
areas.
In 2018, for example, the Department entered into a settlement
agreement with Pacific Mercantile Bank to resolve claims that the
bank engaged in a pattern or practice of discriminating in the pricing
of mortgage loans on the basis of race and national origin. The
agreement established a million-dollar settlement fund to compensate
persons who were harmed by the bank’s conduct. 41 In 2015, the
Department resolved a lawsuit against Sage Bank alleging that the
bank discriminated on the basis of national origin and race in the
pricing of residential mortgage loans, with a consent decree requiring
the bank to establish a $1,175,000 settlement fund, to amend its
pricing and compensation policies, to establish a monitoring program,
and to have employees undergo fair housing and fair lending
training. 42
The Department has also done a significant amount of post-
application ECOA enforcement on pricing in the auto lending
industry, recovering millions of dollars for auto purchasers who were
discriminated against in the terms of their vehicle financing. 43 In
40 Ian Ayres & Peter Siegelman, Race and Gender Discrimination in

Bargaining for a New Car, 85 AM. ECON. REV. no. 3, 1995, at 304–21.
41 Dep’t of Just., Settlement Agreement Between the United States of
America and Pacific Mercantile Bank (July 2018).

42 Consent Order, United States v. Sage Bank, 15-cv-13969 (D. Mass. Dec. 1,
2015), ECF No. 5.

43 Pre-application discrimination is, for example, when a creditor discourages
a customer from applying for credit on the basis of a protected characteristic.

Post-application discrimination occurs when, for example, the creditor sets
the terms for financing based on a protected characteristic, such as charging

2016, the Department entered into a consent order with Charter
Bank, resolving claims that the bank violated ECOA by
discriminating on the basis of national origin in the pricing of car
loans. 44 The Department has also brought and resolved ECOA
enforcement actions relating to auto finance against Toyota Motor
Credit Corp., 45 American Honda Finance Corp., 46 and Fifth Third
Bank, 47 which established settlement funds worth tens of millions of
dollars to compensate borrowers injured by discriminatory pricing
practices.
The Department’s redlining work has not only obtained financial
compensation, but also required banks to market to, and open
locations in, previously unserved areas. For example, in United States
v. First Merchants Bank, 48 a case alleging that the bank avoided
serving predominantly Black neighborhoods in Indianapolis, the court
approved a settlement that established a $1.2 million loan subsidy
fund, required the bank to devote $500,000 toward advertising,
community outreach and credit repair, and to open a branch in
previously unserved areas of Indianapolis. 49 The Department has also
partnered with the Consumer Protection Financial Bureau to fight
redlining and obtained millions of dollars in relief. 50
Black or Hispanic borrowers higher interest rates than comparable white

borrowers.
44 See Consent Order, United States v. Charter Bank, 16-cv-413
(S.D. Tex. 2016), ECF No. 6. The Complaint is available at

https://www.justice.gov/crt/case-document/complaint-united-states-v-charter-
bank-sd-tex.
45 Consent Order, United States v. Toyota Motor Credit Corp., 16-cv-00725
(C.D. Cal. Feb. 11 2016), ECF No. 7.

46 Consent Order, United States v. American Honda Finance Corp., 15-cv-
05264 (C.D. Cal. July 16, 2015), ECF No. 6.

47 Consent Order, United States v. Fifth Third Bank, 15-cv-00626 ( S.D. Ohio
Oct. 1, 2015), ECF No. 3.

48 United States v. First Merchants Bank, No. 19-cv-02365 (S.D. Ind.
Aug. 12, 2019).

49 See Id.
50 See Consent Order, Consumer Fin. Prot. Bureau v. Hudson City Savings
Bank, F.S.B., No. 15-cv-07056 (D.N.J. Nov. 2015), ECF No. 9 (consent order
resolving redlining claims and requiring bank to establish a $25 million loan
subsidy fund, invest $2.25 million for advertising, outreach, and financial
education, and open two branches in previously unserved neighborhoods).

C. Pre-application testing can fill the gap
The focus on redlining and pricing enforcement leaves a potential
gap in fair lending enforcement. As suggested by recent studies and by
the differential treatment observed in Guaranteed Auto Sales, lenders
may be unlawfully discouraging customers who walk in the door from
applying for loans on the basis of race, sex, or national origin. 51
As demonstrated by the Guaranteed Auto Sales case, testing can be
used to fill the gap and identify discrimination occurring in the
pre-application context. Matched-pair testing can be used to
determine whether lenders and creditors are discouraging customers
from applying for loans or credit and can lead to successful
enforcement actions. Testing can uncover discrimination, including
conduct that deters applicants from applying for credit in violation of
ECOA, which might otherwise escape detection.
IV. Conclusion
Despite ECOA’s prohibitions, protected borrowers continue to face
discrimination in obtaining credit, including when trying to finance
automobile purchases. Testing can be used to uncover discrimination
that occurs in the credit industry at the pre-application stage—
including the discouragement of customers from applying for credit.
Now in its thirtieth year, the Department’s FHTP continues to
investigate potential discrimination in lending, housing, and public
accommodations. The FHTP welcomes U.S. Attorneys’ Offices to refer
potentially testable complaints, provide recommendations for systemic
testing, or request testing to support a pre-investigation. In addition,
the FHTP encourages Department supervisors to allow their non-
attorney employees to volunteer to serve as testers in FHTP
investigations.
51See supra, note 33; see also ANNELISE LEDERE & SARA OROS, NAT’L CMTY.
REINVESTMENT COAL., LENDING DISCRIMINATION DURING COVID-19: BLACK
AND HISPANIC WOMEN-OWNED BUSINESSES, NATIONAL COMMUNITY
REINVESTMENT COALITION (N.D.) (finding that non-white testers received
significantly less information about PPP loan products than their white
counterparts).

About the Author
Noah Sacks is a Trial Attorney in the Housing and Civil
Enforcement Section. Before working at the Civil Rights Division, he
was an Assistant U.S. Attorney for the District of the Virgin Islands.
Noah works on fair housing, fair lending and zoning and religious
land use matters.
The author wishes to thank Holly Lincoln, Director of the FHTP; Lucy
Carlson, Deputy Chief of the Housing and Civil Enforcement Section;
Varda Hussain, Special Litigation Counsel for Fair Lending; Carrie
Pagnucco, Housing and Civil Enforcement Trial Attorney; and Greg
Friel, Deputy Assistant Attorney General; for their contributions to
this article.


Addressing Discrimination Under
the Immigration and Nationality
Act: IER’s Investigations and
Outreach
Lisa Sandoval
Trial Attorney
Immigrant and Employee Rights Section
Tamara Hoflejzer
Trial Attorney
Immigrant and Employee Rights Section
I. Introduction
You likely remember your first day of work at the Department of
Justice (Department). You met new colleagues, saw your office space
for the first time, and attended orientation, where you completed a
mountain of onboarding paperwork. One document that you may or
may not remember completing was the Form I-9, or I-9 for short,
which employers use to verify the identity and work authorization of
the people they hire. For most people, it is probably a form they fill
out and then promptly forget. For others, despite being authorized to
work in the United States, an employer’s misuse or misunderstanding
of this form is a potential discriminatory barrier to employment. For
instance, imagine a recently arrived refugee. She finally escapes
danger and makes it to the United States. She gets a job to help
support her family, and on her first day, she presents valid documents
showing her permission to work. But because she isn’t a U.S. citizen,
her employer rejects those documents and delays her start date until
she can present a driver’s license and Social Security card, both of
which can take weeks or months to obtain. Where does she turn for
help?
The Civil Rights Division’s Immigrant and Employee Rights Section
(IER) may be able to help. IER enforces the anti-discrimination
provision of the Immigration and Nationality Act (INA) by
investigating and, when appropriate, filing an administrative lawsuit

against employers or other entities that violate this law. 1 IER also has
a variety of public resources that assist both workers and employers.
Section 1324b prohibits discrimination based on citizenship status
(including immigration status) and national origin, “unfair
documentary practices” (illustrated above through the example of the
recently arrived refugee), and retaliation.
You may have worked with IER in the past, but even if you have
not, IER may come knocking. IER notifies a U.S. Attorney’s Office
(USAO) when it opens an investigation, settles a matter, or files a
lawsuit in its district. IER also collaborates with USAOs in subpoena
enforcement, which occurs when a target of an IER investigation fails
to provide the information that IER requests. And USAOs have joined
with IER to do outreach to stakeholders in their districts, helping to
amplify IER’s public education efforts.
This article discusses IER’s history, the types of discrimination
prohibited by the INA’s anti-discrimination provision, IER’s
investigations—with a focus on administrative subpoena
enforcement—and IER’s outreach and public resources.
II. IER’s history

IER was established through the Immigration Reform and Control
Act of 1986 (IRCA), 2 which amended many parts of the INA. IRCA
was the first federal law to prohibit employers from hiring
undocumented individuals, and it imposed civil and criminal
sanctions against employers for knowingly hiring such individuals.
IRCA also established the employment eligibility verification process,
which requires employers to verify that the people they hire are
eligible to work in the United States by completing and maintaining
Forms I-9. The Department of Homeland Security generally enforces
these provisions of the INA (referred to as the “employer sanctions”
provisions) and administers the Form I-9.
When Congress passed IRCA, it also created the anti-discrimination
provision to prohibit discrimination based on a person’s national
origin or citizenship status because of concerns that the newly enacted
employer sanctions could result in discrimination against non-U.S.
1See Immigration and Nationality Act § 274B, 8 U.S.C. § 1324b (1952).

2Immigration Reform and Control act of 1986, Pub. L. No.99-603,
100 Stat. 3359.

citizens or anyone perceived as looking or sounding “foreign.” 3 Indeed,
Congress’s concerns were well founded. In 1990, a report by the
General Accounting Office (now the Government Accountability Office
(GAO)) concluded that employer sanctions resulted in widespread
discrimination against non-U.S. citizens and others perceived as
“foreign.” 4
GAO’s conclusion was based, in part, on its survey of a sample of
nearly 10,000 employers—representing 4.6 million employers in the
nationwide survey population—to assess whether employers’
understanding (or misunderstanding) of IRCA resulted in
discrimination. 5 The GAO estimated that, as a result of IRCA’s
employer sanctions, 209,000 employers began rejecting job applicants
whose “foreign” appearance or accent led the employer to suspect the
individual was undocumented. 6 An estimated 346,000 employers said
that they selectively verified employment authorization only for
people who had a “foreign” appearance or accent. 7 And some
employers began both practices. The survey results also revealed that
nearly 15% of employers began hiring only individuals born in the
United States and implementing additional discriminatory policies. 8
IER continues to battle these ongoing forms of discrimination
through its enforcement work, hotlines, and public-facing webinars
and presentations. 9
III. Types of prohibited discrimination

The INA’s anti-discrimination provision prohibits four categories of
conduct. Below are examples of each—in practice, of course, the facts
constituting these forms of discrimination vary. 10
3 GEN. ACCT. OFF., IMMIGRATION REFORM: EMPLOYER SANCTIONS AND THE

QUESTION OF DISCRIMINATION 2 (1990).
4 Id. at 3.
5 Id. at 27–28.
6 Id. at 50.
7 Id. at 6.
8 Id. at 43.
9 See Settlements and Lawsuits, DEP’T OF JUST.,
http://www.justice.gov/crt/settlements-and-lawsuits (updated Dec. 13, 2021),

for more information about IER’s enforcement efforts and settlements.
10 Additional examples are available on IER’s website, including educational
materials. E.g., DEP’T JUSTICE., PROTECTING YOUR RIGHT TO WORK (2019).

A. Citizenship status discrimination
A staffing company hires only U.S. citizens based on an assumption
about its clients’ preferences. 11 A different company hires only U.S.
citizens based on a mistaken belief that federal law requires this
hiring restriction. 12 Or a farmer lays off her entire local workforce,
including U.S. citizens and permanent residents, to replace them with
agricultural guest-workers. 13 Section 1324b prohibits discrimination
against protected individuals based on citizenship status (including
immigration status) in hiring, firing, and recruitment or referral for a
fee. 14 The statute defines “protected individuals” as U.S. citizens, U.S.
nationals, recent lawful permanent residents, refugees, and asylees;
thus, protection against citizenship status discrimination
encompasses the immigration status of certain non-U.S. citizens. 15 As
a result, an employer might commit citizenship status discrimination
by refusing to hire a protected individual, such as a refugee, based on
his specific immigration status, even if the employer hires other non-
U.S. citizens. The provision applies to employers that have four or
more employees. 16 Generally, such employers may not discriminate in
hiring against protected individuals based on their citizenship (or
immigration) status, unless required by law, regulation, executive
order, or government contract. 17
11 For example, IER reached a settlement with a staffing company that

imposed unlawful citizenship restrictions on certain job applicants based on
assumptions about its clients’ preferences. Press Release, Dep’t of Just.,
Justice Department Settles with Texas-Based Staffing Company to Resolve
Immigration-Related Discrimination (Jan. 14, 2021).
12 IER also has reached settlements with employers who restricted hiring to
U.S. citizens because of their mistaken understanding of U.S. law. E.g., Press
Release, Dep’t of Just, Justice Department Settles Discrimination Claim
Against Aerojet Rocketdyne, Inc. (May 17, 2021).
13 E.g., Press Release, Dep’t Just., Justice Department Settles Claim Against
Florida. Strawberry Farm for Discriminating Against U.S. Workers

(June 11, 2019).
14 8 U.S.C. § 1324b(a)(1).
15 8 U.S.C. § 1324b(a)(1), (a)(3); 28 C.F.R. § 44.101(c).
16 8 U.S.C. § 1324b(a)(2)(A).
17 8 U.S.C. § 1324b(a)(2)(C).

B. National origin discrimination
A restaurant refuses to hire a job applicant as a server because she
does not have the same national origin as the country whose food the
restaurant serves. 18 Under Section 1324b, IER generally has
jurisdiction over national origin discrimination in hiring and firing
where an employer has four to fourteen employees. 19 The Equal
Employment Opportunity Commission (EEOC) has jurisdiction over
national origin claims against employers with fifteen or more
employees. 20
C. Unfair documentary practices
An asylee, when completing an I-9 form, provides his employer with
a driver’s license and unrestricted Social Security card—one possible
combination of documents that, together, establish his identity and
work authorization and satisfy I-9 requirements. Because the
employer has a policy of requiring non-U.S. citizens to present an
“immigration document,” the employer rejects these documents and
requests that the asylee, instead, provide his Employment
Authorization Document, commonly known as work permit. After the
worker declines, the employer fires him for refusing to comply with
the request for the specific document. 21 The employer has committed
what is known as an “unfair documentary practice,” the most common
type of prohibited discrimination under the INA. Federal law allows
all work-authorized individuals, regardless of citizenship or national
origin, to choose which valid, legally acceptable documentation to
present to demonstrate their identity and authorization to work in the
United States. 22 Unfair documentary practices occur when an
employer or other entity requests specific, more, or different
documents, or rejects valid documents because of an individual’s
18 E.g., Press Release, Dep’t Just., Justice Department Settles National

Origin Discrimination Claim Against New York Restaurant (Feb. 20, 2018).
19 8 U.S.C. § 1324b(a)(1).
20 8 U.S.C. § 1324b(a)(2)(B); see also 42 U.S.C. § 2000e-2.

21 E.g., Press Release, Dep’t Just., Justice Department Settles with Georgia-
Based Staffing Company to Resolve Immigration-Related Discrimination

Claims (May 24, 2021).
22 8 U.S.C. §§ 1324b(a)(6), 1324a(a)(1)(A).

citizenship status or national origin during the employment eligibility
verification process, which involves the I-9 form. 23
Unfair documentary practices can occur during any stage of the
hiring process. They may occur during the application and interview
stages, onboarding, or re-verification. 24 For instance, an employer’s
request for specific documents based on citizenship status during the
application stage, before any job offer is made, can constitute
discrimination. 25
D. Retaliation
An employer suspends an employee because she called IER to ask
for help addressing a concern that a company may be violating section
1324b. 26 Or an employer fires an employee for participating in an IER
investigation. Section 1324b prohibits employers from intimidating,
threatening, coercing, or retaliating against any individual for
participating in an IER investigation or any other proceeding under
section 1324b or otherwise asserting their rights under this law. 27
23 The I-9 contains three sections: Employees complete section one, which
collects background information and requires employees to attest under
penalty of perjury to their citizenship or immigration status. Employers
complete section two by examining documents that establish the employee’s
identity and work authorization. Employers complete section three to
reverify an employee’s work authorization that expires. The prohibition
against unfair documentary practices is found at 8 U.S.C. § 1324b(a)(6).
24 Re-verification is a process in which employers verify employees’ work
authorization again during employment, typically because employees showed

documentation at hire that established temporary work authorization. 8
C.F.R. § 274a.2(b)(1)(vii).
25 See United States v. Life Generations Healthcare, LLC, 11 OCAHO no.
1227, 23 (2014); see also 28 C.F.R. § 44.101(j).

26 See Press Release, Dep’t Just., Justice Department Settles with Delivery
Services Company. to Resolve Retaliation Claim (July 15, 2021), for an

example of a recent IER settlement to resolve a retaliation claim.
27 8 U.S.C. § 1324b(a)(5).

IV. IER’s investigations: obtaining the
information needed to get the job done
A. Background on IER’s investigative procedures
IER’s investigations can originate from two sources. First, they may
begin based on a charge filed by someone who believes that they have
been discriminated against because of their citizenship status or
national origin. 28 The INA’s anti-discrimination provision requires
IER to investigate all such charges. 29 Second, IER is authorized to
open investigations on its own initiative. 30 If IER has a reason to
believe that discrimination could be occurring, it may use its
independent investigative authority to open an investigation or
expand an existing investigation. 31 USAOs are encouraged to contact
IER if they come across possible discrimination that they believe
might fall within IER’s jurisdiction. IER investigates individual
allegations of discrimination as well as patterns or practices thereof.
IER has access to a range of tools to carry out its enforcement
mandate. The INA grants IER “reasonable access to examine evidence
of any person or entity being investigated.” 32 The INA further
authorizes IER to obtain a subpoena in aid of an investigation by
applying to an administrative law judge (ALJ) at the Office of the
Chief Administrative Hearing Officer (OCAHO), an administrative
tribunal within the Department’s Executive Office for Immigration
Review. The ALJ then may issue the subpoena to IER for service on
the investigated entity. 33
Employers under investigation or other third-party recipients of
subpoenas may challenge a subpoena by filing a petition to revoke or
modify the subpoena before OCAHO. 34 If an employer fails to comply
with an OCAHO decision ordering compliance with a subpoena, IER
28 8 U.S.C. § 1324b(b)(1).
29 Id.; see also 28 C.F.R. § 44.303(a).
30 8 U.S.C. § 1324b(d)(1).
31 Id.; 28 C.F.R. § 44.304(a).
32 8 U.S.C. § 1324b(f)(2); 28 C.F.R. § 44.302(c).
33 8 U.S.C. § 1324b(f)(2); see also 28 C.F.R. § 68.25(a).

34 28 C.F.R. § 68.25(c).

may file an application to enforce the subpoena with the appropriate
federal district court. 35
At the conclusion of IER’s investigation, if IER finds there is
reasonable cause to believe the employer has violated section 1324b,
IER may attempt to settle the matter or seek authorization to file a
lawsuit with OCAHO. If IER does not file a lawsuit within 120 days of
receiving a charge, a charging party has the right to file suit directly
with OCAHO. 36
B. Subpoena enforcement: IER’s and USAOs’ winning
partnership
Before filing an application in federal district court to enforce a
subpoena, IER reaches out to the USAO in the district to notify the
office and discuss a plan for the USAO’s role. USAOs have provided
IER with invaluable assistance in this process, ranging from providing
helpful insight as local counsel to participating in the litigation.
In recent years, IER and USAOs have successfully worked together
on several subpoena enforcement matters, resulting in district courts’
compliance orders that enabled IER to continue its investigations. 37
35 “In case of contumacy or refusal to obey a subpoena lawfully issued under

[section 1324b(f)(2)] and upon application of the administrative law judge, an
appropriate district court of the United States may issue an order requiring
compliance with such subpoena . . . .” 8 U.S.C. § 1324b(f)(2). OCAHO case law
clarifies that IER acts in OCAHO ALJ’s stead in seeking enforcement in
federal district court. See In re Investigation of Creative Res. Pers., Inc., 12
OCAHO no. 1299 (2017); In re Investigation of Wal-Mart Stores, Inc., 5
OCAHO no. 754, 264 (1995).
36 8 U.S.C. § 1324b(d)(1), (2).
37 See Report and Recommendation of U.S. Magistrate Judge, United States
v. Space Expl. Techs. Corp., No. 21-mc-00043 (C.D. Cal. Mar. 29, 2021),
ECF No. 24 [hereinafter SpaceX Report and Recommendation];
Order Accepting Findings and Recommendations of U.S. Magistrate Judge,
Space Expl. Techs. Corp., No. 21-mc-00043, ECF No. 29 [hereinafter SpaceX
Order Accepting Report and Recommendation]; Report and Recommendation
of U.S. Magistrate Judge at 2, United States v. Engineered Metals Co., No.
15-cv-00933, (W.D. Tex. Jan. 31, 2017), ECF No. 19; Order Accepting
Magistrate Judge’s Recommendation, Engineered Meatals Co, No.
15-cv-0093, ECF No. 23 (holding employer in civil contempt for failure to
comply with order enforcing IER subpoena and ordering employer to pay
monetary penalty for certain period of non-compliance); United States v.
Rodriguez, No. 19-cv-960 (E.D. Cal. Mar. 11, 2020).

1. Administrative subpoena enforcement: It’s all in
the relevant details
The test for administrative subpoena enforcement is well
established and generally consistent across circuits; the sections below
explain how the test applies to IER’s subpoenas and present some
recent examples of IER’s work with USAOs on subpoena enforcement
matters. Courts will issue an order to comply with an administrative
subpoena if: (1) Congress granted the agency the authority to
investigate; (2) the subpoenaed information is not too indefinite or, in
a minority of circuits, the agency properly followed procedural
requirements; and (3) the evidence is reasonably relevant to the
investigation. 38
A district court’s inquiry is narrow because judicial review of an
investigation interferes with the proper functioning of the agency and
delays resolving the ultimate question of whether the investigated
entity violated the law. 39 Indeed, the Supreme Court has
characterized a court’s role as “a straightforward one”: “If the charge
is proper and the material requested is relevant, the district court
should enforce the subpoena unless the employer establishes that the
subpoena is ‘too indefinite,’ has been issued for an ‘illegitimate
purpose,’ or is unduly burdensome.” 40
The first two factors, generally, are straight forward and easily met.
The first factor, the agency’s authority to investigate, narrowly focuses
on whether section 1324b authorizes IER to investigate entities and
issue subpoenas pursuant to those investigations. 41 Analysis of the
38 See RNR Enters., Inc. v. SEC, 122 F.3d 93, 97 (2d Cir. 1997) (quoting
United States v. Morton Salt Co., 338 U.S. 632, 652 (1950)); United States v.
Fla. Azalea Specialists, 19 F.3d 620, 623 (11th Cir. 1994) (internal citation
omitted); see also EEOC v. Fed. Express Corp., 558 F.3d 842, 848 (9th Cir.
2009) (applying the factor “procedural requirements have been followed”);
Report and Recommendation, U.S. Dep't of Just. v. Jonas, No. 19-cv-30
(D.N.H. Nov. 1, 2018), ECF No. 11; Order, Jonas, No. 19-cv-30, ECF No. 18
(applying the factor “proper procedures have been employed in issuing the
subpoena”).
39 Fed. Express Corp., 558 F.3d at 848–49 (citing EEOC v. Shell Oil Co., 466
U.S. 54, 81 n.38 (1984)).

40 McLane Co. v. EEOC (McLane Co. I), 137 S. Ct. 1159, 1165 (2017) (citing
Shell Oil Co., 466 U.S. at 72 n.26).

41 8 U.S.C. § 1324b(f)(2); 28 C.F.R. § 44.302(c); SpaceX Report and
Recommendation, supra note 37, at 1; see Amended Report and

second factor is also usually straightforward—IER satisfies it when it
obtains and serves a subpoena that is sufficiently definite or, in the
minority of circuits, properly follows Department regulations for
obtaining and serving the subpoena. 42 In several circuits, a
government official’s affidavit is sufficient to satisfy these factors, as
well as relevance. 43
In contrast to the first two factors, relevance, the third factor, is at
the heart of any subpoena enforcement matter and usually constitutes
the lion’s share of a court’s analysis. While the relevance requirement
is “not especially constraining,” 44 courts tend to conduct a thorough
assessment of this factor. Relevance is “generously construed” to
permit the agency “access to virtually any material that might cast
light on the allegations against the employer.” 45 Indeed, the subpoena
must be enforced unless the information sought is “plainly
incompetent or irrelevant to any lawful purpose of [the agency].” 46 In
some circuits, courts have found that relevance is construed even more
broadly during an investigation than at trial. 47 Employers frequently
argue that a subpoena seeks irrelevant information because the
employer has allegedly not engaged in discrimination, and the charge
or independent investigation is, therefore, meritless. But arguments
attacking the merits of the complaint usually fail, as most courts heed
the Supreme Court’s warning that the subpoena enforcement
Recommendation of U.S. Magistrate Judge, Acosta v. GT Drywall, Inc., No.

17-mc-0006 (C.D. Cal. June 26, 2017), ECF No. 13 [hereinafter GT Drywall,
Inc., Amended Report and Recommendation] (finding the employer satisfied
the first factor because “Congress has granted Petitioner the statutory
authority to issue the Subpoena in connection with its . . . investigation”).
42 Morton Salt Co., 338 U.S. at 652; SpaceX Report and Recommendation,
supra note 37, at 1; see also GT Drywall, Inc., Amended Report and
Recommendation, supra note 41.
43 See, e.g., GT Drywall, Inc., Amended Report and Recommendation, supra
note 41 (citing FDIC v. Garner, 126 F.3d 1138, 1142–43 (9th Cir. 1997));
SEC v. Marin, 982 F.3d 1341, 1357 (11th Cir. 2020); Mazurek v. United
States, 271 F.3d 226, 230 (5th Cir. 2001); In re McVane, 44 F.3d 1127, 1136
(2d Cir. 1995) (“An affidavit from a government official is sufficient to
establish a prima facie showing that these requirements have been met.”).
44 Shell Oil Co., 466 U.S. at 68.
45 Id. at 68–69.
46 Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943).
47 EEOC v. Centura Health, 933 F.3d 1203, 1207 (10th Cir. 2019);
EEOC v. McLane Co., 857 F.3d 813, 815 (9th Cir. 2017).

proceeding should not be used to “test the strength of the underlying
complaint.” 48
As relevance is such a broad factor, and IER is entitled to a wide
array of evidence during its investigation, the types of documents that
IER seeks through a subpoena vary from investigation to
investigation. Some non-exhaustive examples of evidence and
witnesses that OCAHO ALJs have found to be relevant in IER
subpoena litigation include Forms I-9 and associated attachments
(that is, copies of the documents that employees present to prove their
identity and work authorization, such as work permits, passports, and
birth certificates); employers’ policies and procedures regarding their
onboarding process, hiring practices, and employment eligibility
verification practices; information about potential discrimination
victims and other witnesses; and employers’ reasons for rejecting job
candidates and terminating employees. 49
2. Defenses to subpoena enforcement
If the agency satisfies the above elements, the district court must
enforce the subpoena, unless the party being investigated shows that
the subpoena is either unduly burdensome or overbroad. 50
Establishing undue burden and overbreadth are high hurdles for
employers to clear, and no employer has ever done so in an IER
subpoena enforcement matter in federal court.
In arguing undue burden, the subject of a subpoena has the burden
of proving that compliance “threatens to unduly disrupt or seriously
hinder normal operations of a business.” 51 Undue burden is often
48 McLane Co., 137 S. Ct. at 1165; see also Shell Oil Co., 466 U.S. at 72 n.26
(“[A]ny effort by the court to assess the likelihood that the [agency] would be
able to prove the claims made in the charge would be reversible error.”).
49 See, e.g., In re Investigation of Hyatt Regency Lake Tahoe, 5 OCAHO no.
751, 238 (1995); In re Investigation of Carolina Emps. Ass’n, 3 OCAHO no.

455, 605 (1992); In re Investigation of ABM Indus., 5 OCAHO no. 763 (1995).
50 EEOC v. Karuk Tribe Hous. Auth., 260 F.3d 1071, 1076 (describing the
test established in EEOC v. Child’s Hosp. Med. Ctr. Of N. Cal., 719 F.2d
1426, 1428 (9th Cir. 1983)); see McLane Co. I, 137 S. Ct. at 1165; see also
Child’s Hosp. Med. Ctr. of N. Cal., 719 F.2d at 1428 (en banc) (overruled on
other grounds).
51 FTC v. Texaco, Inc., 555 F.2d 862, 883 (D.C. Cir. 1977); see also
EEOC v. Bay Shipbuilding Corp., 668 F.2d 304, 313 (7th Cir. 1981);

evaluated in terms of the projected financial cost of subpoena
compliance, and failure to submit supporting evidence is usually fatal
to an employer’s argument. 52 In distinguishing undue burden from
“any burden,” courts recognize that “[s]ome burden
on subpoenaed parties is to be expected and is necessary” to further
an agency’s legitimate investigation, which is in the public’s interest. 53
Thus, courts have not found that undue burden is established even
when an employer offers credible evidence that compliance with a
subpoena would involve substantial effort, including hundreds of
hours of manual data gathering or review. 54
Overbreadth interrelates with relevance, which, as noted above, is
broadly construed, so a subpoena is overbroad only if it seeks
information so extensive that the subpoena amounts to a “fishing
expedition.” 55 Courts examine a subpoena’s breadth in light of the
agency’s investigation. 56 Thus, IER subpoenas may be legitimately
FTC v. Rockefeller, 591 F.2d 182, 191 (2d Cir. 1979); New Orleans Pub. Serv.
v. Brown, 507 F.2d 160, 165 (5th Cir. 1975).
52 Ord. Adopting the Magistrate Judge’s Report and Recommendation and
Granting the Petition for Enforcement at 16, Elwell v. Bade, No. 19-mc-00020
(S.D. Ind. June 16, 2020), ECF No. 26 (“Respondents have not offered any
evidence that [subpoena compliance] will interfere with their business
operations, prove too costly, or otherwise harm them.”); Ord. and
Memorandum at 11, EEOC v. Sunoco, Inc., No. 08-MC-145 (E.D. Pa. Jan. 27,
2009), ECF No. 8 (rejecting an employer’s general argument that compliance
would be “‘inordinate[ly]’ and ‘significant[ly]’ cost- and time-intensive”)
(alteration in original); EEOC v. Citicorp Diners Club, Inc., 985 F.2d 1036,
1040 (10th Cir. 1993) (declining to find undue burden where employer failed
to offer specific estimate of the cost of compliance).
53 Texaco, Inc., 555 F.2d at 882.
54 See EEOC v. A'GACI, LLC, 84 F. Supp. 3d 542, 552–53 (W.D. Tex. 2015)
(explaining that undue burden is not established even where “hundreds of

hours” of manual review and compilation of personnel data could be
required); Order at 6–7, EEOC v. UPS, No. 06-MC-42 (D. Minn. Sept. 1,
2006), ECF No. 18 (no undue burden where compliance would take 400
hours).
55 FDIC v. Garner, 126 F.3d 1138, 1146 (9th Cir. 1997) (citations omitted).
56 See Texaco, Inc., 555 F.2d at 882 (“There is no doubt that
these subpoenas are broad in scope, but the FTC’s inquiry is a comprehensive
one and must be so to serve its purposes. Further, the breadth complained of
is in large part attributable to the magnitude of the producers’ business
operations.”).

broad to enable IER to obtain the information and documents
necessary to conduct comprehensive investigations and determine
whether employers violated section 1324b.
This issue was front and center in a recent subpoena enforcement
matter in which a large employer argued IER’s subpoena was overly
broad because it requested certain records for all employees hired over
a one-year period, specifically, copies of the documents employees had
shown in the Form I-9 process. 57 The court rejected the employer’s
argument as a “non-starter” because such records were relevant to
determining the employer’s company-wide hiring practices,
particularly in the context of a pattern or practice investigation. 58 The
court also rejected the company’s argument that the requested
documents were “confidential” and, therefore, off limits. 59 While the
INA places strict limits on the use of Forms I-9 and copies of
documents shown in that process, IER has a statutory right to access
this information, and the court held that the employer was “required
by law to obtain, maintain, and disclose those I-9 records on
demand.” 60 The court, therefore, enforced the subpoena. 61
V. IER’s outreach efforts and public

resources: An ounce of prevention is
worth a pound of cure
Besides its investigations and other enforcement work, one of IER’s
most powerful tools for tackling discrimination is public education.
IER is statutorily mandated to educate employers and workers about
their rights, responsibilities, and remedies under the INA’s anti-
discrimination provision. 62 IER, therefore, engages in substantial
outreach efforts consisting of webinars and trainings and manages a
hotline that both workers and employers can call with questions or
57 See SpaceX Report and Recommendation, supra note 37, at 2.

58 Id. at 8.
59 Id.
60 Id.; see 8 U.S.C. § 1324a(b)(3) (“[T]he person or entity must retain” a Form
I-9 “and make it available for inspection by . . . the Special Counsel for
Immigration-Related Unfair Employment Practices,” the statutory head of
IER).
61 SpaceX Order Accepting Report and Recommendation, supra note 37
(adopting magistrate judge’s report and recommendation).

62 8 U.S.C. § 1324b(l).

concerns about discrimination. 63 This outreach work has been crucial
in helping to prevent unlawful discrimination. USAOs can play an
important role in lifting up IER’s public education efforts, and IER
has appreciated USAOs’ collaboration on outreach to stakeholders in
their districts. USAOs can contact IER to discuss setting up
presentations or disseminating information to the public about the
law IER enforces and our hotlines.
On average, IER annually conducts over 100 presentations. During
these events, IER discusses rights and responsibilities under the
INA’s anti-discrimination provisions, IER’s enforcement processes,
and IER’s resources. IER’s presentations are designed to be
interactive for an audience of non-lawyers, and IER conducts many
presentations in both English and Spanish.
Beyond presentations, IER’s hotline is a constant resource and
receives thousands of calls every year in a variety of languages. 64
Through the hotline, IER provides information and assistance to both
workers and employers, and in certain situations, with a caller’s
consent, IER can informally reach out to an employer to resolve issues
on the spot. These informal “interventions” achieve the remedies that
would have otherwise taken months or years to obtain through the
enforcement process. And in doing so, they save hundreds of workers’
jobs a year by helping employers avoid improperly firing or failing to
hire workers.
A hypothetical hotline call illustrates the effectiveness of this
important resource. The recently arrived refugee, discussed at the
beginning, calls IER’s hotline, complaining that a hiring manager
rejected her valid documentation in the Form I-9 process because she
is not a U.S. citizen and won’t let her work until she shows a driver’s
license and Social Security card, both of which can take weeks or
months to obtain. An IER attorney contacts the caller’s employer, with
the caller’s consent, to provide public information, explaining that the
refugee’s documentation, an I-94, is a valid type of document to show
for the Form I-9, and employees get to choose which valid documents
63 IER’s website also has many educational resources for workers. See Worker
Information, DEP’T OF JUSTICE, https://www.justice.gov/crt/worker-
information (last visited Oct. 5, 2021). To find resources for employers, see
Employer Information, DEP’T OF JUSTICE,
https://www.justice.gov/crt/employer-information (last visited Oct. 5, 2021).
64 In addition to IER staff who conduct work in additional languages, IER
utilizes telephonic interpreters available to Department personnel.

to present during the I-9 process. The employer, wanting to hire the
refugee (who was the best qualified candidate), is grateful for the
information and decides to accept the refugee’s documentation. The
worker is thrilled to start her job without delay.
To advance public education, IER also works closely with federal,
state, and municipal agencies and foreign governments. For example,
IER has memoranda of understanding (MOUs) with the EEOC, the
National Labor Relations Board, the U.S. Citizenship and
Immigration Services, and the U.S. Department of Labor. IER also
has MOUs with the embassies and consulates of five foreign
governments. 65 IER’s agency and consular relationships increase
IER’s ability to provide individuals with information about their
rights and responsibilities under the INA and how to contact IER for
assistance. Some of the MOUs also provide for cross-agency referrals
and IER training for agency and consular staff.
VI. Conclusion
Over the years, IER has helped thousands of people facing
discrimination to obtain or keep their jobs and recovered millions of
dollars in back pay for victims of discrimination. IER’s public
education and outreach efforts help workers and employers avoid
discrimination. And where prevention fails, IER’s investigations help
ensure that employers comply with the anti-discrimination provision
of the INA. USAOs can play an important role in working with IER to
get its message out and in helping to ensure that IER has access to
the information it needs to complete its investigations and otherwise
enforce the INA’s anti-discrimination provision.
65 Ecuador, El Salvador, México, Honduras, and Perú.

About the Authors
Lisa Sandoval has served as a trial attorney at IER since November
2019. Before joining IER, she worked at a different federal agency,
where she investigated universities for compliance with Title IX, and
at a boutique law firm in the private sector, where she practiced
employment discrimination law. She began her career at the
Department in 2012 as an Honors Attorney. She attended Vassar
College and received her J.D. from American University Washington
College of Law. She is admitted to practice law in New York and the
District of Columbia.
Tamara Hoflejzer has been a trial attorney at IER since May 2021.
Before joining IER, she served as a senior attorney at the U.S.
Department of Labor’s (DOL) Office of the Solicitor, where she advised
agencies on issues relating to immigration law and international labor
law. She began her career at DOL in 2013 as an Honors Attorney. She
attended the University of California, Los Angeles, and received her
J.D. from Cornell Law School. She is admitted to practice law in New
York.

Note from the Editor-in-Chief
This issue on civil enforcement of civil rights is the first of two
issues dealing with civil rights. As the esteemed Assistant Attorney
General for the Civil Rights Division, Kristen Clarke, wrote in the
Introduction, the work of the Civil Rights Division, partnered with
United States Attorneys’ offices nationwide, “helps to safeguard the
civil and constitutional rights of our nation’s most vulnerable
communities.” For federal attorneys, this issue will give you the
blueprints for protecting these rights to prevent the victimization of
individuals through police and penal misconduct; workplace, school,
and housing sexual harassment; and housing, testing, lending,
employment, and immigration discrimination. For the public, we hope
this issue will expose you to the excellent work being done every day
by those in the Department of Justice who fight the good fight.
The DOJ Journal staff would like to acknowledge Jessica Ginsburg
for acting as a point of contact for this issue and the work of the Civil
Rights Division in pulling everything together. These wonderful
individuals recruited subject-matter experts and put together the list
of topics. And thanks, of course, to our slate of authors, all
outstanding in their respective areas of expertise.
In-house here at Office of Legal Education Publications, I’d like to
acknowledge the hard work of Addison Gantt, Managing Editor; Phil
Schneider, Associate Editor; and our law clerks Rachel Buzhardt,
Kyanna Dawson, Rebekah Griggs, Lilian Lawrence, and William
Pacwa. They all put in hundreds of hours to make this journal not
only accurate, but also friendly to its readers.
And for all our readers, stay safe and well. We hope that’ll you be
around for our follow-up issue on criminal enforcement of civil rights.
Chris Fisanick
Columbia, SC
January 2022

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DEPARTMENT OF JUSTICE

JOURNAL OF FEDERAL LAW AND PRACTICE

Volume 70 January 2022 Number 1

United States Department The Department of Justice Journal of

January 2022 DOJ Journal of Federal Law and Practice 1

2 DOJ Journal of Federal Law and Practice January 2022

January 2022 DOJ Journal of Federal Law and Practice 3

4 DOJ Journal of Federal Law and Practice January 2022

Attorney General’s discretionary authority to address widespread or systemic

January 2022 DOJ Journal of Federal Law and Practice 5

II. The broad scope of the Attorney

respect to state and local government employers, while the Equal

6 DOJ Journal of Federal Law and Practice January 2022

(E.D. Mich. June 13, 2016), ECF No. 1.

(E.D. Pa. 2014), ECF No.1.

January 2022 DOJ Journal of Federal Law and Practice 7

(D. Md. Aug. 21, 2014), ECF No. 4.

20 See 8 U.S.C. §§ 1324b(c)(2), 1324b(d)(1).

8 DOJ Journal of Federal Law and Practice January 2022

27 E.g., Consent Order at 1, United States v. Hous. Auth. of Bossier City,

No. 16-cv-1376 (W.D. La. Oct. 6, 2016), ECF No. 4.

15-cv-01492 (E.D. Mo. Oct. 1, 2015), ECF No. 2-1.

January 2022 DOJ Journal of Federal Law and Practice 9

(D. Md. Sept. 30, 2019), ECF No. 1.

10 DOJ Journal of Federal Law and Practice January 2022

interstate commerce or to be “supported in their activities by State action”).

damages for past harms).

No. 10-cv-1554 (M.D. Fla. July 15, 2010), ECF No. 2.

January 2022 DOJ Journal of Federal Law and Practice 11

50 Complaint at 4–5, United States v. Greyhound Lines, Inc., No. 16-cv-67

(D. Del. Feb. 8, 2016), ECF No. 1.

52 Press Release, Dep’t of Justice, Over $3 Million Paid to Individuals in

Disability Settlement with Greyhound (May 2, 2019).

12 DOJ Journal of Federal Law and Practice January 2022

53 The Attorney General also has authority to reach juvenile detention

with civil subpoena power to facilitate investigations into potential pattern-

57 Amended Complaint at 1, United States v. Alabama, No. 20-cv-1971

No. 20-cv-410 (E.D. Va. Aug. 5, 2020), ECF No. 1.

January 2022 DOJ Journal of Federal Law and Practice 13

64 DEP’T OF JUST., THE CIVIL RIGHTS DIVISION’S PATTERN AND PRACTICE

POLICE REFORM WORK: 1994-PRESENT 6 (2017).

14 DOJ Journal of Federal Law and Practice January 2022

III. Pattern-or-practice cases under

65 See id. at 20–21, 25–34.

1990) (applying Teamsters to Title II pattern-or-practice claim);

70 Id. at 336, 336 n.16.

January 2022 DOJ Journal of Federal Law and Practice 15

IV. The benefits of pattern-or-practice

16 DOJ Journal of Federal Law and Practice January 2022

75 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5).

January 2022 DOJ Journal of Federal Law and Practice 17

78 FED. R. CIV. P. 23(a).

After Wal-Mart v. Dukes, 50 HARV. C.R.-C.L. L. Rev. 176–77 (2015)

18 DOJ Journal of Federal Law and Practice January 2022

84See 28 U.S.C. §§ 2415, 2462 (regarding time limitations on the United

January 2022 DOJ Journal of Federal Law and Practice 19

20 DOJ Journal of Federal Law and Practice January 2022

1 Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020).

January 2022 DOJ Journal of Federal Law and Practice 21

5 Education Amendments of 1972 § 901, 20 U.S.C. § 1681(a).