The lost origins of American fair employment law: regulatory choice and the making of modern civil rights, 1943-1972.

• Author: Engstrom, David Freeman

INTRODUCTION I. THE RISE OF FEPC A. Fair Employment's Emergence B. Early Legislative Struggles C. Regulatory Alternatives II. THE PUZZLE OF FEPC A. The Ambiguities of Administrative Enforcement 1. New Deal religion and the virtues of FEPC 2. The problem of regulatory capture 3. "'Dead letter' legislation": the New York experience B. Judicial Alternatives 1. State civil rights acts and the ghost of Lochner 2. Aggregation and the problem of litigation costs 3. The jury problem 4. A rising tide of civil rights litigation III. THE MIDCENTURY POLITICAL ECONOMY OF CIVIL RIGHTS A. Fair Employment and the Problem of Organized Labor 1. The shaky black-labor alliance 2. Labor, fair employment, and regulatory choice B. Protest and Accommodation Among Civil Rights Groups 1. The old guard and the new crowd 2. Private litigation, direct action, and FEPC 3. Racial "proportionalism" and FEPC IV. THE TAFT PROPOSAL OF 1946 AND THE TRIUMPH OF FEPC CONCLUSION INTRODUCTION

In March 1943, Charles Diggs, an African American Democrat from Detroit, and Murl DeFoe, a white Republican from Lansing, advanced a piece of legislation, titled "A Bill Concerning Discrimination," in the Michigan state legislature. The bill prohibited discrimination in hiring, firing, or training employees on the basis of race, creed, sex, color, or national origin. (1) It also provided for a strikingly wide array of enforcement mechanisms. Section 3 made job discrimination a criminal misdemeanor and provided for fines up to $500 and imprisonment up to six months. (2) Section 4 created a private right of action for damages based on lost earnings, and it further authorized class action lawsuits on behalf of "any 1 or more persons ... similarly situated." (3) The remaining sections outlined a third mode of enforcement, empowering the state Department of Labor and Industry to hold public hearings and order that a respondent cease and desist from discriminatory conduct or take any "affirmative action including the hiring, re-hiring or training of employees discriminated against." (4)

Though the bill would ultimately fail to win passage, (5) this was a watershed moment in the history of American law. Diggs-DeFoe was the first fully enforceable law prohibiting job discrimination ever proposed in any legislature in the United States. Indeed, the measure went well beyond President Roosevelt's wartime Committee on Fair Employment Practice (COFEP), created by executive order two years earlier in 1941. (6) COFEP's jurisdiction extended only to publicly financed war production, and it lacked any enforcement authority beyond the ability to hold public hearings, informally conciliate disputes, and enter purely advisory orders that employers and unions could, and often did, ignore. And while a patchwork of federal and state laws already prohibited discrimination in public employment, (7) Diggs-DeFoe applied to private acts of discrimination--an unthinkable intrusion into the principle of liberty of contract that had prevailed during the Lochner era just one decade earlier. In each of these respects, Diggs-DeFoe was a bold new effort to regulate private conduct in the delicate area of race relations.

The episode also marks the beginning of a remarkable and largely unexamined opening chapter in the history of American employment discrimination law. In the months and years following Diggs-DeFoe's failure, bills outlawing job discrimination flooded Congress and state legislatures. (8) When federal legislative efforts stalled, it was New York that passed the first such law in 1945, and many other states soon followed. (9) Indeed, by the time Congress passed Title VII to the Civil Rights Act of 1964, nearly two dozen states had already enacted laws mandating equal treatment in employment and engaged in nearly two decades' worth of enforcement efforts. (10)

Yet this early state-level scheme was strikingly different from what most lawyers today know as Title VII, and it was also quite a departure from Diggs-DeFoe's wide array of enforcement options. Title VII vests primary enforcement authority in the federal courts; Diggs-DeFoe, among its trio of enforcement options, likewise authorized individual and even class action lawsuits. By contrast, the civil rights and other groups that waged successful campaigns to enact job discrimination laws in the immediate postwar period quickly coalesced around the idea of an administrative agency as the exclusive means of enforcement. The centerpiece of this approach was a fair employment practices commission, or FEPC, with the authority to mediate disputes and, where necessary, order that a defendant cease and desist from discriminatory practices. Every major state that enacted a fair employment law in the immediate postwar period adopted the FEPC approach.

Why did FEPC come to dominate over available court- and litigation-centered approaches? In some ways, FEPC's ascendance is puzzling. As I show, some within the civil rights community expressed skepticism about FEPC's likely efficacy, and their concerns were arguably borne out: many state FEPCs proved to be timid implementers and failed to move significant numbers of African Americans into labor markets. (11) And indeed, it was not FEPC, but rather class action lawsuits, damages and attorney's fees, and a judge-made disparate impact evidentiary standard under Title VII that would prove successful at breaking down the structures of job discrimination, particularly within labor unions, in the late 1960s and the 1970s. (12) Even so, the few existing accounts of early American employment discrimination law speculate that FEPC won out because job discrimination was seen as a complicated problem requiring agency expertise and because of concern about litigation costs and the threat of bigoted judges or juries. (13) On this view, an administrative approach prevailed because it was likely to be more effective than alternatives.

This Article, however, recovers a far more complicated past. Drawing on extensive original archival research, I argue that FEPC's rise cannot be explained solely by reference to judgments about the likely efficacy of competing approaches. Rather, I trace the FEPC choice to the peculiar midcentury political economy of civil rights and, in particular, strategic conflict among civil rights groups about how best to attack job discrimination as well as a troubled but necessary alliance with organized labor. Mainline civil rights groups like the NAACP and Urban League and their union allies preferred FEPC because it entrenched a gradualist, individualized, and negotiation-based approach that fit better with the organizational imperatives and strategic goals of both groups. The evidence further suggests that FEPC's exclusive enforcement approach helped mainline civil rights groups manage internal conflict across a range of issues--including the propriety of damages as a civil rights remedy and quota-based hiring--while denying more militant and increasingly litigious local protest networks an entree into the courts. In short, FEPC prevailed because it offered a measure of control over the pace and substance of racial change.

My recovery of the FEPC choice in the immediate postwar years thus offers a glimpse of the complex clash of institutional choices, social movement dynamics, and midcentury debate about the shape and meaning of civil rights. In particular, my account complicates recent scholarship arguing that the road to Brown v. Board of Education represented a critical break by civil rights groups from mobilization efforts around industrial and economic issues in favor of a legal attack on social segregation. (14) To the contrary, the story of FEPC shows that the campaign to integrate American industry continued through 1954 and beyond, but it turned away from asserting constitutional rights and toward what was in many ways a far more difficult task of creating statutory ones, and it moved out of the courts and into the New Deal administrative state. (15) Expanding the historical frame beyond Brown and its court-centered antecedents reveals that civil rights groups did not entirely forsake workplace rights. And yet, those groups guided the movement toward institutional choices that reflected the cautious gradualism of the civil rights mainstream and the coalitional constraints of the New Deal bloc.

A clearer understanding of the intramovement dynamics that channeled the FEPC choice also helps illuminate the postwar evolution of American employment discrimination law. Most notable is the turn to more pattern-centered and even race-conscious affirmative action approaches to job discrimination beginning in the late 1960s and the 1970s. The dominant account explains that shift as an effort by embattled bureaucrats and judges to respond to a growing urban crisis and fill the regulatory vacuum left by Republican opposition to fair employment regulation. (16) On this view, the history of employment discrimination law is shot through with irony, for it was obstructionist Republicans who set the stage for affirmative action by helping to stymie a robust administrative solution and then later, in 1964, by handing implementation of Title VII to federal judges who proved willing to interpret the law in strong ways. (17) My account deepens that irony, for the FEPC choice, and thus any regulatory vacuum on the jobs issue, came as much from inside as outside the early civil rights movement. More importantly, the liberal coalition's adherence to FEPC crowded out other surprisingly innovative regulatory approaches at critical junctures prior to Title VII's passage in 1964. The FEPC choice is thus essential to explaining the path that American employment discrimination law--and antidiscrimination law more broadly--ultimately took.

Finally, my account of the FEPC choice lends critical insight to an emerging narrative that links the evolution of American employment discrimination law...