Antidiscrimination Legislation

• Author: Theodore Eisenberg
• Pages: 94-97

Page 94

From its inception, antidiscrimination legislation has shaped and been shaped by the Constitution. Antidiscrimination legislation's very existence is attributable to developments in constitutional law. Enactment of such legislation usually reflects a relatively favorable atmosphere for the promise of equality embodied in the THIR-TEENTH, FOURTEENTH, and FIFTEENTH AMENDMENTS. When the values underlying these amendments are in decline, antidiscrimination legislation is not enacted, and often is not enforced.

Federal antidiscrimination laws have been enacted during two time periods. During the first period, which commenced near the end of the CIVIL WAR, Congress enacted the CIVIL RIGHTS ACT OF 1866, the Civil Rights Act of 1870, the FORCE ACT OF 1871, the Civil Rights Act of 1871, and the CIVIL RIGHTS ACT OF 1875. These early provisions, portions of which survive, exemplify two basic forms of antidiscrimination legislation. Some provisions, such as section 1 of the 1871 act (now section 1983) and section 3 of the 1866 act were purely remedial. They provided remedies for violations of federal rights but created no new substantive rights. Other provisions, such as section 1 of the 1866 act and section 16 of the 1870 act (now sections 1981 and 1982), were express efforts to change substantive law by fostering greater equality between black and white Americans.

The COMPROMISE OF 1877 marks the end of the first era during which antidiscrimination legislation flourished. Afterward, congressional and judicial developments favored neither enactment nor enforcement of antidiscrimination legislation. In the CIVIL RIGHTS REPEAL ACT of 1894 the first Democratic Congress since the Civil War repealed the few effective remnants of post-Civil War antidiscrimination legislation. A favorable climate for legislative implementation of the post-Civil War constitutional amendments did not reemerge until the late 1950s and early 1960s.

Page 95

There were no significant antidiscrimination statutes in the intervening years.

As the constitutional amendments were given new vigor by the WARREN COURT, however, antidiscrimination legislation experienced a renaissance. Modern statutes, including the CIVIL RIGHTS ACTS OF 1957, 1960, 1964, and 1968, protect against discrimination in voting, employment, education, and housing. They represent a second era of federal antidiscrimination legislation, sometimes called part of the second reconstruction.

As in the case of earlier antidiscrimination statutes, the primary reason for enactment was to protect blacks from RACIAL DISCRIMINATION. Again, two kinds of provisions were enacted. Some provisions, such as the 1957 and 1960 Acts and Title VI of the 1964 act, are remedial in tone (though not always so interpreted) and do not purport to create new substantive rights. Others, such as Title VII of the 1964 act, which prohibits private discrimination in employment, confer new substantive rights.

Modern antidiscrimination legislation contains a recognizable subcategory that has been the fastest growing area of antidiscrimination law. Until about 1960 or 1970, antidiscrimination legislation could be equated with laws prohibiting one or more forms of racial discrimination. Subsequently, however, legislation prohibiting discrimination surfaced in many areas. For example, the AGE DISCRIMINATION ACT OF 1975, the Age Discrimination in Employment Act, the REHABILITATION ACT OF 1973, the DEVELOPMENTALLY DISABLED AND BILL OF RIGHTS ACT, the Education of Handicapped Children Acts, the Equal Pay Act, and the EDUCATION AMENDMENTS OF 1972 provide substantial protection to the aged, to...