Trump’s Nominee For Civil Rights Chief Faces Brutal Confirmation Hearing

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Kevin Daley Supreme Court correspondent
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President Donald Trump’s nominee to lead the civil rights division at the Department of Justice, Eric Dreiband, will appear before the Senate Judiciary Committee Wednesday for what many expect to be a bruising confirmation hearing.

Dreiband is a former anti-discrimination enforcer turned corporate lawyer with a masters degree from the Harvard Divinity School. He served as general counsel at the Equal Employment Opportunity Commission (EEOC) during the Bush administration before entering private practice, where he has spent the last decade.

At first blush, Dreiband’s record seems difficult to parse, and in some respects appear flatly contradictory. The nominee’s history with retailer Abercrombie & Fitch brings the dynamic into sharp relief. Just two years ago in 2015, Dreiband represented Abercrombie before the U.S. Supreme Court in a Title VII action brought by an aggrieved Muslim job applicant, who sued the company over its refusal to allow employees to wear traditional religious headwear. Former Justice Antonin Scalia wrote an opinion for a seven-justice majority siding with the applicant.

But a decade earlier as general counsel at the EEOC, Dreiband reached a landmark settlement with Abercrombie after employees and applicants alleged systemic discrimination in hiring and recruitment practices. The retailer agreed to ensure women and minorities were promoted to middle management positions and paid out some $50 million.

Most of the institutional civil rights firmament is therefore wary of Dreiband and oppose his confirmation. The NAACP characterized Dreiband as a “dangerous choice,” while the Leadership Conference on Civil and Human Rights styles him a persistent advocate of “anti-civil rights positions.” Though these groups have failed to stop other contentious Trump nominees, their rebukes all but ensure a brutal confirmation process, especially for a post as sensitive as assistant attorney general for the civil rights division.

But nonpartisan career employees who worked with Dreiband at EEOC dispute those assertions. David B. Grinberg, a 20-year veteran of the agency who worked under administrations of both political parties, told The Daily Caller News Foundation that Dreiband was among the most accomplished general counsels who served during his two decades with EEOC.

“It’s as if some of these groups are living in a parallel universe where they are intentionally excluding everything Eric did at the EEOC,” he told TheDCNF. “You don’t hear anything about it.”

“His record of accomplishment at the EEOC as general counsel is unmatched in modern times,” he added.

Grinberg’s claims refer to several metrics of agency success, which show Dreiband’s EEOC significantly outpaced the Obama-era EEOC in terms of suits filed, suits resolved, and damages secured.

According to publicly available figures compiled by the agency, EEOC filed an average of 418 suits during the two years Dreiband served as general counsel. During the Obama years, the agency averaged just 205 suits, less than half Dreiband’s yearly average.

The same holds true concerning number of suits resolved. Under Dreiband, the agency averaged 379 resolutions per year. During the Obama administration, that figure was 246.

The most substantial disparity in performance appears with respect to financial awards. Where Dreiband averaged $137 million in damages secured in settlements, verdicts, or fines each year, the Obama EEOC won just $60 million.

Civil rights group counter that such outcomes are the natural result of austerity policies which diminished staff and resources. Given its achievements amidst persistent budget cuts, they argue the Obama EEOC’s record is more, not less, impressive.

The companies against which Dreiband won awards include some of the countries largest employers. Ford Motor Company paid out an $8.5 million settlement in 2005 at the conclusion of a class action brought by black employees pursuing skill trades apprentice positions. The class argued the written test for such positions had a disparate impact on black applicants. Under the terms of the settlement, Ford agreed to fill 280 apprentice posts with members of the class. The test in dispute was abandoned shortly thereafter.

“The EEOC is pleased to have been able to work cooperatively with Ford and the United Auto Workers in reaching a mutually satisfactory resolution to this matter,” Dreiband said at the time. “Employers must consider how all aspects of selection processes, including written tests, may adversely impact members of a particular demographic group.”

In another instance, EEOC reached a voluntary agreement with Home Depot, under which the company paid $5.5 million to a coalition of current and former employees for sex and race discrimination. The dispute arose from several of the companies Colorado stores, where middle management berated female and minority employees, then punished those who reported discriminatory conduct. The company also agreed to submit to regular audits for compliance with anti-discrimination requirements.

Dreiband also promoted the formation of a strategic litigation task force within the agency, in hopes of using carefully selected cases to spur large-scale change in employment practices.

Throughout his tenure, Grinberg says Dreiband generally enjoyed the support of the agency’s nonpartisan career staff.

“Eric earned the respect, admiration, and appreciation of the career attorneys and staff at the EEOC,” he told TheDCNF. A group of career EEOC lawyers submitted a letter supporting his confirmation to the Judiciary Committee on Aug. 30.

“Eric showed respect for and trust of the career civil servants with whom he worked at EEOC, and we believe he will carry that same style of leadership with him at DOJ,” the letter reads. “He is collegial, friendly, fair, and open minded, and was always ready to listen to advice from those career staff without prejudging their intent based on presumed political views.”

And in that vein, Grinberg argues the line against Dreiband is the product of an uncharitable evaluation of his record.

“Eric has been subjected to extremely unfair personal attacks that seek to defame and discredit his character, his good name, and his record,” he told TheDCNF. “Frankly, it’s reprehensible.”

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