Front-run­ner for Jus­tice’s civil rights divi­sion de­fended re­tailer in bias case

The Washington Post Sunday - - POLITICS & THE NATION - BY SARI HORWITZ sari.horwitz@wash­ Julie Tate con­trib­uted to this re­port.

The front-run­ner to over­see the Jus­tice Depart­ment’s civil rights divi­sion is a for­mer Bush ad­min­is­tra­tion of­fi­cial and vet­eran con­ser­va­tive Washington lawyer who has rep­re­sented sev­eral com­pa­nies that were sued for dis­crim­i­na­tion.

At­tor­ney Gen­eral Jeff Ses­sions has rec­om­mended to the White House that Eric S. Dreiband head the civil rights divi­sion, which over­sees the Jus­tice Depart­ment’s poli­cies on is­sues such as vot­ing rights, po­lice bru­tal­ity and trans­gen­der rights.

In one of his most high-pro­file cases, Dreiband rep­re­sented Aber­crom­bie & Fitch be­fore the Supreme Court two years ago when the cloth­ing re­tailer was sued for re­fus­ing to hire a 17-year-old Mus­lim woman be­cause she wore a head­scarf that con­flicted with the com­pany’s dress code.

Aber­crom­bie & Fitch said it didn’t have a rea­son to know that the woman’s head­scarf was cloth­ing re­quired by her reli­gion. In its Supreme Court brief, the com­pany ar­gued that peo­ple ap­ply­ing for jobs should not be al­lowed “to re­main silent and to as­sume that the em­ployer rec­og­nizes the re­li­gious mo­ti­va­tions be­hind their fash­ion de­ci­sions.”

The Supreme Court dis­agreed in an 8-to-1 rul­ing for the Mus­lim woman.

Dreiband is a part­ner at Jones Day, which has at least 14 at­tor­neys who have joined the Trump ad­min­is­tra­tion. At the firm, he has suc­cess­fully rep­re­sented to­bacco com­pany R.J. Reynolds in an age dis­crim­i­na­tion case and Bloomberg in a preg­nancy dis­crim­i­na­tion case.

Dreiband was also in­volved in a re­cent Supreme Court case, rep­re­sent­ing the Ro­man Catholic arch­bishop of Washington, which sued the Obama ad­min­is­tra­tion over the con­tra­cep­tive cov­er­age man­date of the Af­ford­able Care Act. The law re­quired group health plans and is­suers of health in­sur­ance to pro­vide cov­er­age for con­tra­cep­tive meth­ods, but there were ex­emp­tions for re­li­gious em­ploy­ers. Re­li­gious or­ga­ni­za­tions had to cer­tify that they had re­li­gious ob­jec­tions to pro­vid­ing the cov­er­age.

Dreiband and other Jones Day lawyers, in­clud­ing so­lic­i­tor gen­eral nom­i­nee Noel J. Fran­cisco, ar­gued that the law im­posed a sub­stan­tial bur­den on re­li­gious or­ga­ni­za­tions — and also made re­li­gious or­ga­ni­za­tions com­plicit and vi­o­lated their con­sti­tu­tional pro­tec­tions. The Supreme Court passed on mak­ing a de­ci­sion in 2016, largely be­cause it was still dead­locked after Jus­tice An­tonin Scalia’s death.

Dreiband, who is from Indianapolis and Fort Wayne, Ind., re­ceived his un­der­grad­u­ate de­gree from Prince­ton Univer­sity, where he ma­jored in his­tory. An of­fen­sive line­man for his col­lege foot­ball team, he tried out un­suc­cess­fully for the St. Louis Car­di­nals NFL team after graduation. He earned a master’s de­gree in the­o­log­i­cal stud­ies, with a con­cen­tra­tion in ethics and pub­lic pol­icy, from Har­vard Univer­sity, and a law de­gree in 1992 from North­west­ern Law School.

From 1997 to 2000, he worked for In­de­pen­dent Coun­sel Ken­neth W. Starr and led the in­ves­ti­ga­tion and suc­cess­ful pros­e­cu­tion of President Bill Clin­ton’s for­mer as­so­ciate at­tor­ney gen­eral, Web­ster Hubbell.

Un­der the Bush ad­min­is­tra­tion, he served as deputy ad­min­is­tra­tor of the La­bor Depart­ment’s Wage and Hour Divi­sion and gen­eral coun­sel of the Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion.

Les­lie Sil­ver­man, Bush-ap­pointed vice chair­man of the EEOC, said that Dreiband was “well re­spected by the staff.”

“He has in­cred­i­ble in­tegrity, he’s very bright and he really be­lieves in the civil rights laws,” Sil­ver­man said.

At the EEOC, Dreiband was in­volved in an­other a law­suit with Aber­crom­bie & Fitch — but this time on the other side.

In 2004, the EEOC joined a pri­vate class-ac­tion dis­crim­i­na­tion law­suit against Aber­crom­bie & Fitch, al­leg­ing that the com­pany pro­moted whites at the ex­pense of mi­nori­ties. The com­pany agreed to set­tle the case and was or­dered to pay $40 mil­lion to black, His­panic and Asian em­ploy­ees and job ap­pli­cants.

Civil rights ad­vo­cates said they do not know much about Dreiband’s back­ground. Kris­ten Clarke, president and ex­ec­u­tive di­rec­tor of the Lawyers Com­mit­tee for Civil Rights Un­der Law, said that “it will be im­por­tant for the Se­nate to care­fully re­view his record if he in­deed is the nom­i­nee be­cause he has been on both sides of civil rights mat­ters.”

“His ex­pe­ri­ence han­dling some civil rights mat­ters does not an­swer key ques­tions about his views on vot­ing rights, polic­ing re­form and other core as­pects of the divi­sion’s work,” Clarke said.

Dreiband did not re­spond to re­quests for an in­ter­view. A spokesman for Jones Day also de­clined to com­ment.

In 2013, Dreiband co-wrote a piece in Forbes mag­a­zine op­pos­ing “ban the box,” an ef­fort by civil rights ad­vo­cates to pre­vent em­ploy­ers from asking about an ap­pli­cant’s crim­i­nal record when they ap­ply for a job.

Sev­eral com­pa­nies, in­clud­ing Koch In­dus­tries, Wal­mart, and Bed Bath and Beyond have joined the ban-the-box move­ment in re­cent years. But Dreiband wrote in his ar­ti­cle that “if the govern­ment is en­ti­tled to have law-abid­ing work­ers, then surely pri­vate em­ploy­ers are as well.”

If nom­i­nated and con­firmed, Dreiband would take over the divi­sion at a time when Ses­sions has be­gun to re­verse Obama ad­min­is­tra­tion pol­icy. In a law­suit against Texas, the civil rights divi­sion dropped its long-stand­ing po­si­tion that Texas in­tended to dis­crim­i­nate in its strict voter ID-law — a po­si­tion up­held by a fed­eral judge in Texas two months later.

In Bal­ti­more, the divi­sion tried to de­lay a hear­ing on a sweep­ing po­lice re­form agree­ment while Ses­sions asked his pros­e­cu­tors to re­view all such re­form agree­ments with trou­bled po­lice forces na­tion­wide. And in Fe­bru­ary, the divi­sion’s civil rights at­tor­neys joined the Ed­u­ca­tion Depart­ment in re­vok­ing fed­eral guide­lines spec­i­fy­ing that trans­gen­der stu­dents have the right to use pub­lic school bath­rooms that cor­re­spond with their gen­der iden­tity.

Last month, a group of con­ser­va­tive lawyers wrote a let­ter to Ses­sions, urg­ing him to rid the civil rights divi­sion of “ide­o­log­i­cal rot.” The lawyers ac­cused President Barack Obama’s civil rights divi­sion of serv­ing “purely ide­o­log­i­cal ends with rigid­ity un­matched in other fed­eral of­fices.”

In re­sponse, a group of lib­eral or­ga­ni­za­tions, in­clud­ing the Amer­i­can Civil Lib­er­ties Union, Peo­ple for the Amer­i­can Way and Pub­lic Cit­i­zen, wrote to Ses­sions, say­ing that “the divi­sion’s ca­reer staff must not be politi­cized by the in­com­ing Jus­tice Depart­ment po­lit­i­cal ap­pointee . . . and must be free to pur­sue the divi­sion’s mis­sion with­out in­ap­pro­pri­ate po­lit­i­cal in­ter­fer­ence.”

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