Making Rights Work: Legal Mobilization at the Agency Level

• Date: 01 September 2015
• DOI: http://doi.org/10.1111/lasr.12155
• Published date: 01 September 2015

Making Rights Work: Legal Mobilization at the

Agency Level

Jennifer Woodward

This article discusses how McCann’s theory on legal mobilization and social

change is generalizable to the legal decisions of agencies. I demonstrate how

the Equal Employment Opportunity Commission (EEOC) routinely delayed

and denied Title VII employment rights on the basis of sex and how this

resulted in the formation of the National Organization for Women (NOW) to

ensure that the sex provision of Title VII was enforced. The article also dis-

cusses the influence of NOW in shaping the first years of Title VII law and

the organization’s role in reversing EEOC decisions denying rights under the

sex provision of the law.

Title VII of the Civil Rights Act (CRA) of 1964 protects against

unlawful employment practices that create unequal employment

opportunities. When the law passed, these protections extended

to hiring, firing, compensation, terms, conditions, and privileges

of employment as well as employment opportunity and status on

the basis of race, color, religion, sex, or national origin. The CRA

of 1964 also created the Equal Employment Opportunity Com-

mission (EEOC) to enforce Title VII of the law. When the EEOC

opened its doors on July 2, 1965, it faced an instant backlog of

nearly 1,000 claims and the number of claims and backlog con-

tinued to grow (Pedriana and Stryker 2004:711).

By the end of the 1969 fiscal year, less than half of the over

54,000 Title VII claims received by the agency finished investiga-

tion. Of the 4,793 cases it had decided, the agency determined

that only about 2,493 (52%) had “reasonable cause” to suspect

discrimination had occurred. From these claims, the EEOC

The author wishes to thank the American Bar Foundation and Law and Society Associa-

tion for their financial support as a Law and Society Doctoral Fellow during the research and

early writing stages of project. This article benefited from insightful comments provided by

the anonymous reviewers and editorial board at Law and Society Review.Thearticlealsoincor-

porates comments generously provided on preliminary versions of this work by Julie Novkov,

Patricia Strach, Alethia Jones, George Lovell, Robert L. Nelson, Laura Beth Nielsen, Sandy

Schram, and a panel at the 2013 Law and Society Annual Meeting. Please direct all correspon-

dence to Jennifer Woodward, Government Department, College of William and Mary, P.O.

Box 8795, Williamsburg, VA23187-8795; e-mail: at jwoodward@albany.edu.

Law & Society Review, Volume 49, Number 3 (2015)

V

C2015 Law and Society Association. All rights reserved.

691

conciliated 1,350 claims of discrimination. As a result, 729 of

these claims were unsuccessfully resolved over the four-year

period (Wolkinson 1973: 2). This left a relatively small portion of

the over 54,000 claims with even the potential for a lawsuit via

the agency granting claimants the right to sue in the courts.

From there, individuals still had the financial, educational, and

social obstacles of bringing a claim to the courts (Felstiner, Abel,

and Sarat 1980–1981; Galanter 1974). As a result, most of the

Title VII legal claims brought before 1969 were interpreted by

the EEOC (Wolkinson 1973: 2).

By eliminating the implementation constraint (Rosenberg

2008) and mitigating some of the obstacles of bringing claims to

the courts, new and novel legal claims by individuals have the

potential to influence the law and society through the claims they

submit to agencies. Individual claims submitted to agencies not

only place issues on the agenda of an agency but also present

visions of law that may be reinforced or abated by the agency. As

such, individual claims and agency responses to them have the

potential to spur interest group action and social change. Yet,

scholars have paid little attention to how the legal decisions of

government agencies hold the potential to provoke interest

group mobilization and social change.

Rather than focus on the relatively small number of interpreta-

tions regarding Title VII law made in the courts during these years,

this article explores the far more numerous and everyday interpre-

tations of Title VII made by the EEOC through its responses to

claims.

1

As scholars, we tend to focus on judicial interpretations as

the main source of law. Yet, agency rules and regulations have “the

same weight as congressional legislation, presidential executive

orders, and judicial decisions” (Kerwin 1999: 3). By shifting the

focus from the courts and onto agency lawmaking, I demonstrate

the applicability and potential for court-based theories to inform

this other type of “lawmaking by unelected officials” (Kerwin 1999).

I argue that scholars should not neglect or relegate to the sidelines

the equally important role of agency made law and the ways in

which rights are made either real or symbolic by government agen-

cies (Epp 2009). Likewise, we need to understand how agencies

make law, like the courts, in response to the legal claims made by

individuals and interest groups (Zemans 1983).

“Law is ...mobilized when a desire or want is translated into

a demand as an assertion of rights” (Zemans 1983: 700). When a

rights claim reaches an agency, the agency can shape society

1

Those interested in the first judicial interpretations regarding Title VII should see

Belton (1978), Lieberman (2007), Smith (2008), Farhang (2010), and Mulroy(201 1).

692 Making Rights Work

through their reinforcement of rights claims, providing a form of

legitimacy to the right or vision of law provided by the claimant.

The agency may also delay acting on the grievance claim, or even

deny it. On one hand, agency delays and denials can delegitimize

the vision of rights claimed and create feelings of reduced politi-

cal efficacy individuals (Soss 1999). On the other hand, these

actions can result in counteractions and rights mobilization as

individuals challenge the delay and denial of their perceived

rights (Lovell 2006; McCann 1994).

Courts can create social change through the “expansion of

goals, opportunities, and capacities for extending struggles” dur-

ing ongoing processes of legal mobilization (McCann 1996: 481–

482). In looking at whether legal mobilization can occur at the

agency level, I ask: How and why did the EEOC respond to

claims made under Title VII between 1965 and 1968 and to

what extent did the responses result in remedies, mobilization, or

other outcomes? In the dynamic process of legal interpretations

that occurred during the early years of the EEOC, I find

McCann’s theory of legal mobilization is generalizable to govern-

ment agencies.

Legal Mobilization Framework

Nearly 16 years before the County of Washington, Oregon v.

Gunther (1981) Supreme Court decision on pay equity McCann

uses to open the discussion in Rights at Work (1994), women were

writing into the EEOC stating they were “ ...never paid a salary

equal to that my male coworkers earned for the same services...”

(Case number 5-10-1572).

2

The Equal Pay Act of 1963 was not

working. A new law, the CRA of 1964 was passed and while

women were seen as accidental beneficiaries, women saw the

equal employment opportunity provisions under Title VII of the

law as the remedy to their demands for equal pay and other

issues of workplace inequality.

Legal consciousness scholarship focuses on how law is con-

ceived by individuals outside the state, rather than by state offi-

cials (McCann 1994: 8). This view considers individuals not as

passive or reactionary actors to the law, but “savvy participants in

dynamic processes in which both citizens and government offi-

cials articulate, evaluate, and dispute competing visions of law”

(Lovell 2006: 285). As such, individuals are able to mobilize the

law to advance creative, expansive, and novel interpretations of

2

This and all other quotes are in the writer’s own words, including spelling, grammar,

and all other errors.

Jennifer Woodward 693