Employment discrimination on grounds of race, sex, nationality, or religion may be challenged under two acts of Congress. One of the statutes, now codified as Title 42 of the United States Code, section 1981, is a survivor of the CIVIL RIGHTS ACT OF 1866, enacted for the protection of former slaves. As originally enacted, the statute was not seen as an employment discrimination statute. It conferred upon blacks the right to make and enforce contracts, to sue and to enjoy on a par with whites the protection of laws. The act was passed pursuant to Congress's authority under section 2 of the THIRTEENTH AMENDMENT, and Congress proposed the FOURTEENTH AMENDMENT in order to assure the act's validity. After the Reconstruction era, however, it and other Reconstruction-era civil rights legislation fell into disuse until the 1960s. Not until Johnson v. Railway Express Agency, Inc. (1975) did the United States Supreme Court confirm the application of section 1981 to RACIAL DISCRIMINATION in private-sector employment. This statute's use in employment discrimination cases has become secondary to reliance on Title VII of the CIVIL RIGHTS ACT OF 1964, which was enacted by Congress as part of a comprehensive statute prohibiting discrimination on grounds of race, sex, religion,
or national origin in employment, PUBLIC ACCOMMODATIONS, and federally funded programs.
Enactment of the 1964 Act followed a long period of civil rights DEMONSTRATIONS against the kinds of discrimination the act prohibited. For twenty years preceding the enactment of Title VII, more than 200 fair employment practice bills had been proposed in the Congress, but none had passed. Allegations of a Title VII violation often are accompanied by additional allegations of a section 1981 violation.
Another survivor of Reconstruction-era legislation now codified as 42 United States Code 1985(c), was originally designed to protect blacks from Ku Klux Klan violence. The Supreme Court, in Great American Federal Savings and Loan Association v. Novotny (1979), rejected the view that section 1985(c) provides an independent remedy for the adjudication of rights protected by Title VII.
The constitutionality of Title VII of the 1964 act was never seriously questioned. The power of Congress to enact Title VII, either under the COMMERCE CLAUSE or to enforce the FOURTEENTH AMENDMENT, seems to have been assumed. In 1972 Congress extended the coverage of Title VII to...