Introduction

• Pages: 1-3
• Author: George A. Rutherglen

1

Introduction

Over the latter half of the twentieth century and into the twenty-

first, the field of employment discriminatio n law grew from a minor

specialty in to a flourishing branch of legal practice. It began,

modestly enough, with the passage of fair employment prac tice

statutes in several states before the decision in Brown v. Board of

Education. That de cision, in 1954, changed the landscape of civil

rights law, and much else besides. By the end of the decade that

followed, nearly half the states had passed fair emp loyment practice

laws, and Congress had passed the most important civil rights

legislation in American history, the Civil Rights Act of 1964. Title VII

of this act contained the first general prohibition against employment

discrimination in federal law, and from this point forward, Title VII,

together with the constitutional decision in Brown, provided the

framework for the subsequent development of employment

discrimination law. This body of law is almost wholly statutory, but

it is deeply influenced by the active role taken by the judiciary in

enforcing the constitutional principle against discrimination derived

from Brown. The Civil Rights Act of 1964 extended this principle in

a variety of different dire ctions: to public accommodations, to

recipients of federal funds, and in Title VII, to private emplo yment.

Subsequent legislation has extended it still further, to g rounds of

discrimination not recognized in constitutional law, such as age and

disability, and through a combination of judicial interpre tation and

statutory amendment, to prohibitions not imposed by the

Constitution, like those against neutral practices with

discriminatory effects. All of these innovations, however, bear the

marks of their origins in c onstitutional law, and some directly raise

constitutional questions, most recently the permissibility o f

affirmative action. All of these innovations also harken back to the

original provisions of Title VII of the Civil Rights Act of 1964, which

themselves have been amended by subsequent legislation, the most

important of which is the Civil Rights Act of 1991.

Decisions interpreting the laws against employment

discrimination have multiplied, as have the books and articles

commenting on these developments. As the law in this f ield has

become more complex and technical, it also has become less

accessible. In such a large and growing field, any attempt at detailed

analysis acro ss the full range of significant issues would require a

lengthy treatise or casebook, and several have been published. This

book has a different aim: to provide a critical introduction to the field.

Just as this book must be selective in its coverage, it must also be

critical in its analysis of arguments and positions. Criticism must

inevitably be offered from one perspective rather than another. I have