Development of the Law

• Pages: 5-16
• Author: George Rutherglen

5

Chapter 1

DEVELOPMENT OF THE LAW

A. Constitutional Law

The single most important fact about the laws against

employment discrimination is so obvious that it has often been

minimized or overlooked entirely. It is that these laws derive from

the principle against discrimination recognized in Brown v. Board of

Education.

1

This principle seeks to establish racial equality, mainly

for the benefit of racial and ethnic minorities and mainly by

prohibiting race as a basis for decisions by government officials. This

principle did not spring into existence full-blown in Brown, which

was itself the culmination of a series of decisions eroding the doctrine

of “separate but equal” established over half a century earlier in

Plessy v. Ferguson.

2

This series of decisions had ramifications outside of

constitutional law as well, and most directly for employment

discrimination law, in the enactment of “fair employment practice”

(FEP) laws in several states after World War II. These laws favored

administrative enforcement on the model of the National Labor

Relations Board and centralized control over enforcement rather

than leaving it to individual private actions.

3

The means of

enforcement proved to be a source of continuing controversy, but the

substantive provisions of state FEP laws provided the model for

numerous bills introduced in successive sessions of Congress, one of

which eventually became Title VII of the Civil Rights Act of 1964.

State FEP laws were only sporadically enforced, and not adopted,

until after the decision in Brown. That decision is rightly regarded

as the foundation of modern civil rights law, including employment

discrimination law.

The decision in Brown, of course, was controversial at the time

and its implications remain controversial even today, over half a

century later. It is, for instance, still an open question whether the

principle against discrimination allows any form of affirmative

action, or, even more fundamentally, what constitutes “intentional

discrimination” prohibited by the Constitution. These disputes in

constitutional law have spread throughout civil rights law, even to

1

347 U.S. 483 (1954).

2

163 U.S. 537 (1896).

3

David Freeman Engstrom, The Lost Origins o f American Fair Employment

Law: Regulatory Choice and the Making of Modern Civil Rights, 1943–1972, 63 Stan.

L. Rev. 1071, 1116–17, 1125 (2011).