President-Elect Donald Trump has offered the job of Attorney General of the United States to Senator Jeff Sessions (R- Alabama). The announcement raised eyebrows in some circles due to Senator Sessions’ history and recent statements about several hot-button civil rights issues. The Department of Justice plays a significant role in interpreting and enforcing many federal civil right laws.
The concern over Sessions’ civil rights record goes back decades. In 1986, the Senate refused to confirm Sessions when he was nominated to a federal judgeship when a wide variety of racist statements made by Sessions came to light, including referring to the NAACP as “un-American.” Sessions voting record over his two decade tenure in the Senate is also causing concern. Sessions has been an outspoken critic and frequent negative vote on fair housing, criminal justice reform, immigration reform, LBGT rights and marriage equality. Sessions was strongly criticized during the election for his comments that alleged groping of women by Donald Trump was not sexual assault.
The Attorney General’s power to interpret and enforce federal civil rights protections is substantial. In prior Republican administration the Civil Rights Division has been limited in the types of cases filed and has rolled back interpretation of various laws. DOJ has substantial discretion over whether to pursue claims against state and local governments under various laws, including those overseen by the EEOC. DOJ has primary jurisdiction in interpret and enforce the ADA, and a significant role over many other laws. The Attorney General will influence the selection of the various Division heads, and can mold enforcement using a variety of tactics, including setting priorities for enforcement, the exercise of prosecutorial discretion, and revisiting guidance or regulations issued by prior administrations.
If confirmed, employers and higher education institutions may see drastic impacts from a Sessions led DOJ. It is easy to foresee a reduction in in federal enforcement of racial, sexual orientation, and national origin discrimination cases against employers and universities. One area where there is likely to be a shift in interpretation is gender and sex discrimination, including by not limited to VAWA and Title IX. It would not be surprising if DOJ tried to roll-back or not enforce interpretations of sex or gender discrimination as including sexual orientation or transgender issues. While Senator Sessions still faces a Senate Confirmation process that many commentators argue is far from guaranteed, if he is confirmed, the change in leadership will certainly have noteworthy and palpable consequences for employers.