Louisiana Law Review
The Supreme Court Chipping Away at Title VII:
Strengthening It or Killing It?
Henry L. Chambers, Jr.∗
“This Civil Rights Act is a challenge to all of us to go to work in
our communities and our States, in our homes and in our hearts, to
eliminate the last vestiges of injustice in our beloved country.”1
As President Lyndon Johnson noted 50 years ago, the Civil
Rights Act of 1964 was passed to help eliminate injustice and ensure
that all would have a reasonably equal opportunity to enjoy the
riches of American society.2 More specifically, Title VII of the 1964
Civil Rights Act (Title VII) focuses on providing equal opportunity
in the workplace, which allows individuals to rise or fall based on
their talent. However, what equal opportunity has meant in the past
and what equal opportunity will mean in the future is contested.
Though the meaning of the basic provisions of a statute that has
been law for 50 years should be settled, Title VII’s meaning is not
settled. Indeed, over the past few years, the Supreme Court has
destabilized the meaning of Title VII by rethinking doctrines that
many thought established.3 How the Supreme Court will shape Title
Copyright 2014, by HENRY L. CHAMBERS, JR.
∗ Professor of Law, University of Richmond.
1. This quote is from President Lyndon Baines Johnson’s statement
accompanying the signing of the Civil Rights Act of 1964. President Lyndon B.
Johnson, Radio and Television Remar ks Upon Signing t he Civil Rights Bil l (July
2, 1964) (transcript available at http://www.lbjlib.utexas.edu/johnson/archives
.hom/speeches.hom/640702.asp [http://perma.cc/TZN5-UZS7] (archived Apr. 2,
2. Some have suggested employment discrimination law to be a project of
near Biblical proportions. See William R. Corbett, Babbling About Employment
Discrimination Law: Does The Master Builder Understand the Blueprint for the
Great Tower?, 12 U. PA. J. BUS. L. 683, 685 (2010) (“From the beginning, it was
an astoundingly ambitious, and perhaps audac ious, project. Congress envisioned a
tower of law that would elevate people, reaching toward the heavens by
attempting to eradicate invidious employment discrimination.”).
3. See generally Henry L. Chambers, Jr., The Wild West of Supreme Court
Employment Discrimination Jurisprudence, 61 S.C. L. REV. 577, 577–79 (2010);
see also Martin J. Katz, Gross Disunity, 114 PENN. ST. L. REV. 857, 857 (2010)
(noting that the Supreme Court has begun to shed some of its interpretive
principles in employment discrimination cases as it has abandoned its preference
for deeming similar language in employment discrimination statutes to have the
1162 LOUISIANA LAW REVIEW [Vol. 74
VII doctrine and what that will mean for equal opportunity in the
workplace is unclear.
Title VII prohibits covered employers from discriminating with
respect to an employee’s terms, conditions, or privileges of
employment or compensation because of the employee’s race, color,
sex, religion, or national origin.4 In addition, employers are barred
from discriminating against individuals because they have formally
or informally challenged practices that they believe violate Title
VII.5 Those simple prohibitions have been the subject of discussion
and analysis for 50 years. At times, the Supreme Court has boldly
pushed the limits of Title VII in favor of equality. For example, its
decision in Griggs v. Duke Power Co. confirmed Title VII’s
expansive reach by noting the existence of a disparate impact cause
of action under Title VII.6 Conversely, at times, the Supreme
Court’s support for Title VII’s basic goals has been suspect. During
the late 1980s, the Court’s narrow interpretation of Title VII helped
lead to the passage of the Civil Rights Act of 1991.7 The 1991 Act
installed a number of features into the employment discrimination
landscape that significantly altered Title VII, including jury trials
and punitive damages.8
However, in recent years, the Supreme Court’s interpretation of
Title VII and other employment discrimination statutes has called
into question the future arc of Title VII doctrine.9 The Court appears
ready to redefine nondiscrimination and equality under Title VII.
Indeed, some of the Court’s rulings suggest that a robust quest for
full equality in the workplace may not be achievable without
amendments to Title VII’s current text.10 Rather than broaden Title
VII protections through doctrinal evolution in the same manner that
4. See 42 U.S.C. § 2000e-2(a) (2006).
5. See id. § 2000e-3.
6. 401 U.S. 424, 431–33 (1971). Twenty years later, the disparate impact
cause of action was formalized in t he Civil Rights Act of 1991, P ub. L. No. 102-
166, 105 Stat. 1071.
7. See Michael J. Zimmer, Wal-Mart v. Dukes: Taking the Protection out of
Protected Classes, 16 LEWIS & CLARK L. REV. 409, 428 (2012) (noting that the
1991 Civil Rights Act was passed in response to Supreme Court doctrine).
8. See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.
9. See infra Part II.
10. Indeed, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007),
triggered the Lilly Ledbetter Equal Pay Act, Pub. L. No. 111-2, 123 Stat. 5 (2009).
That Congress had to amend a statute does not necessarily mean that the case at
issue was wrongly decided, at least with respect to precedent. See Charles A.
Sullivan, Raising The Dead?: The Lilly Ledbetter Fair Pay Act, 84 TUL. L. REV.
499, 501 (2010) (“First, Ledbetter was by no means a radical decision; indeed, it
was the logical outgrowth of earlier, very restrictive Supreme Court opinions
interpreting Title VII statute of limita tions periods.”).