73 J. Kan. Bar Assn. 10, 18-27 (2004). Title VII at 40: A Look Back.

Author:By Elinor P. Schroeder

Kansas Bar Journals

Volume 73.

73 J. Kan. Bar Assn. 10, 18-27 (2004).

Title VII at 40: A Look Back

Kansas Bar Journal 73 J. Kan. Bar Assn. 10, 18-27 (2004) Title VII at 40: A Look Back By Elinor P. Schroeder Now the time has come for this Nation to fulfill its promise ... We face ... a moral crisis as a country and as a people. It cannot be met by repressive police action. It cannot be left to increased demonstrations in the streets. It cannot be quieted by token moves or talk. It is a time to act in the Congress, in your State and local legislative body and, above all, in all of our daily lives.

- John F. Kennedy(fn1)

As far as the writ of Federal law will run, we must abolish not some but all racial discrimination.

- Lyndon B. Johnson(fn2)

On July 2, 1964, President Lyndon B. Johnson signed the Civil Rights Act of 1964(fn3) into law. One source has said that the Act was "the greatest legislative achievement of the civil rights movement ... [and] arguably the most important domestic legislation of the postwar era."(fn4) Even those of us who practice and teach in the area of employment discrimination law, however, sometimes take the existence of Title VII of the Civil Rights Act of 1964,(fn5) the most essential of all the employment discrimination statutes and the basis for all the others, for granted. In this 40th anniversary year of the passage of the Civil Rights Act, it is perhaps worth pausing for a few moments to reflect on the historical context in which the bill was introduced, debated, amended, and passed. I do not have enough space or time to do complete justice to this topic; I have cited several excellent historical works in the footnotes for those who are interested in further exploration. After discussion of the 1964 Act, I will deal more briefly with the three major amendments to Title VII and conclude with a few paragraphs on how the Kansas law fits into this history. Finally, in the interest of providing a look at the path the law has taken over the past 40 years, I have prepared a list of the U.S. Supreme Court's Title VII decisions from the first, Phillips v. Martin Marietta Corp., in 1971, to the most recent, Pennsylvania State Police v. Suders, this year. (see appendix on page 25) The list is as complete as I have been able to make it; if you find omissions, please let me know.

The Civil Rights Act of 1964

Congress passed civil rights bills in 1957(fn6) and 1960.(fn7) Although these acts were generally weak and ineffective because of congressional resistance and lack of support from the White House, the Civil Rights Act of 1957 did establish the United States Commission on Civil Rights, which was charged with studying the problems of race in the United States and making a report with recommendations to Congress. The Commission issued a report in 1961, and its findings proved influential in drafting the legislation that became the Civil Rights Act of 1964.(fn8) The 1957 Act also created the Civil Rights Division in the Department of Justice, to be headed by an assistant attorney general. During both the Kennedy and Johnson administrations, Civil Rights Division attorneys traveled throughout the South, enforcing school desegregation orders and protecting the rights of civil rights demonstrators. Assistant Attorney General Burke Marshall, a Kennedy appointee, was an important figure in the struggle for civil rights during that time.

President Kennedy was in office for more than two years before he proposed any civil rights legislation. On Feb. 28, 1963, he sent a "Special Message on Civil Rights" to Congress, containing proposed amendments to existing voting rights laws, desegregation assistance to school districts, and extension of the Civil Rights Commission.(fn9) He did not seek legislation in the area of employment. Rather, he referred to the federal government's efforts to be a model employer and to require that its contractors not discriminate in their employment. He went on to remark:

Outside of Government employment, the National Labor Relations Board is now considering cases involving charges of racial discrimination against a number of union locals. I have directed the Department of Justice to participate in these cases and to urge the National Labor Relations Board to take appropriate action against racial discrimination in unions. It is my hope that administrative action and litigation will make unnecessary the enactment of legislation with respect to union discrimination.(fn10)

Needless to say, civil rights leaders were astounded and could only hope that a second Kennedy administration might produce different results.(fn11)

But then events caught up with the administration. The Rev. Martin Luther King, Jr., held demonstrations in Birmingham, Ala., seeking desegretion of the city's lunch counters and other public accommodations. The nation saw images on the front pages of their newspapers and on the nightly television news of Police Commissioner "Bull" Connor using dogs and water cannons on the demonstrators. King was arrested and wrote his famous "Letter From the Birmingham Jail."(fn12) He was released after spending nine days in jail, and eventually an agreement to desegregate the city's drinking fountains, restaurants, and restrooms was seemingly reached. The next night, however, a bomb exploded under the Birmingham motel room King had been using (he was out of town that night), and another went off at his brother's Birmingham home.(fn13)

On June 11, 1963, Gov. George C. Wallace stood in the doorway of the University of Alabama and tried to prevent two black students from registering for classes. It was clear that the Kennedy administration had to do something. That same evening, the president delivered a televised address to the nation, vowing to "ask the Congress of the United States to act, to make a commitment it has not fully made in this century to the proposition that race has no place in American life or law."(fn14) A few hours later, early on the morning of June 12, Medgar Evers, leader of the Mississippi NAACP, was shot and killed outside his home in Jackson.(fn15)

On June 19, 1963, President Kennedy sent a strengthened civil rights bill to Congress. On June 20, it was introduced as H.R. 7152 by Rep. Emanuel Celler, a friend of the administration and chair of the House Judiciary Committee.(fn16) The choice of the House was intentional. The Senate is home to unlimited debate, better known as the filibuster; at that time a two-thirds majority was needed to invoke cloture.(fn17) Cloture had never been successfully invoked on a civil rights bill. In addition, the Senate Judiciary Committee was chaired by Sen. James Eastland of Mississippi, who had killed more than 100 civil rights bills during the 1950s and early 1960s by refusing to allow them to come up for a vote. In the House, on the other hand, only a simple majority was needed for passage, and in the early 1960s, passage of civil rights bills in the House was assumed. Indeed, Rep. Celler and his subcommittee were so supportive of civil rights that, after they were finished with the bill, President Kennedy called the chairman to the White House to convince him to tone it down to try to ensure passage in the Senate.(fn18)

As introduced, H.R. 7152 dealt with discrimination in public accommodations, education, and voting, but once again the administration's bill did not contain broad provisions prohibiting discrimination in private sector employment. It merely authorized the establishment of yet another commission, the Commission on Equal Employment Opportunity. The purpose of this proposal was to give a statutory basis for a commission that had been established in 1961 by executive order.(fn19) The proposed statutory commission was to prevent discrimination by government contractors and recipients of federal financial aid. This bill, along with several other civil rights bills, was referred to committee. One of these other bills was H.R. 405, "the nominal ancestor of Title VII,"(fn20) which was introduced by Rep. James Roosevelt, D-Calif., who would be one of the leaders in the passage of what became the Civil Rights Act in the House.

In the meantime, outside events were again overtaking Congress and the administration. On Aug. 28, 1963, more than 200,000 people marched peacefully on Washington, and Martin Luther King, Jr., gave his "I Have a Dream" speech. President Kennedy did not attend the event, but he did meet with King and other civil rights leaders later at the White House. On Sept. 15, four young African-American girls were killed when a bomb was thrown into the 16th Street Baptist Church in Birmingham, Ala.

Back in the House, the Committee on Education and Labor reported out a version of H.R. 405 that would have established a new agency, the Equal Employment Opportunity Commission (EEOC), with authority similar to that of the National Labor Relations Board, to hold hearings and to issue cease and desist orders enforceable in court, with limited judicial review.(fn21) H.R. 7152, however, gave the EEOC only the authority to sue the alleged discriminator in federal court if no settlement could be reached.(fn22) On Nov. 20, 1963, the bill that would become, in substantial part, the Civil Rights Act of 1964 was reported out of the House Judiciary Committee. It was a much stronger piece of legislation than was first introduced and one of the principal amendments to the administration's bill was the addition...

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