Making Rights Work: Legal Mobilization at the Agency Level

Date01 September 2015
Published date01 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
Law & Society Review, Volume 49, Number 3 (2015)
C2015 Law and Society Association. All rights reserved.
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
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
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).
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
This and all other quotes are in the writer’s own words, including spelling, grammar,
and all other errors.
Jennifer Woodward 693

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