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