Excerpted From: Michael Selmi, From Disparate Impact to Protecting White Men and Their Interests: the Early Development of Title VII, 65 Arizona Law Review 1009 (Winter 2023) (194 Footnotes) (Full Document)

MichaelSelmi.jpegWhen Title VII of the Civil Rights Act of 1964 (the “Act”)was passed, there were two primary and urgent questions courts had to address. The first was what constituted discrimination and, relatedly, how discrimination could be proved. The Act prohibited discrimination in employment based on race, gender, national origin, color, and religion, but it did not define discrimination, an issue that was instead left to courts. The second issue, equally important at the time, was how to transition from a discriminatory employment system to one that was nondiscriminatory. Prior to the passage of the Act, many employers relegated their Black employees to the worst jobs--when they were willing to hire them at all--and telling employers to no longer discriminate did not say much about how to undo the entrenched pattern of workplace discrimination. This was particularly true in unionized workplaces where seniority played a critical role for employment opportunities and was frequently based on time in a particular job rather than time with the employer. Because of the segregated job lines, a departmental seniority system severely limited opportunities for Black workers.

On the question of what constitutes discrimination, the Supreme Court issued decisions that were widely applauded, including the well-known case of Griggs v. Duke Power Co., which established the disparate impact theory. Two years later, the Court adopted the proof structure for individual claims of discrimination based on circumstantial evidence, a proof structure that still largely governs claims today. But there was also a different side to these cases, one that has largely been forgotten in the long history of employment discrimination doctrine. Virtually every decision the Court made regarding the Act cut back on a more progressive vision that had developed in the lower courts; the Court's consistent rejection of these visions invariably hindered the progress lower courts were making, which likely limited the efficacy of the Act. Not only did the Supreme Court restrain lower courts, but it also largely tracked the conservative social and political law and order movement that emerged in the late 1960s in the wake of the riots that erupted following the murder of Dr. Martin Luther King, Jr. and other similar events. For example, even when its relevance was not apparent, the Supreme Court consistently expressed concerns about affirmative action and the qualifications of African Americans; it also frequently expressed concern for what it perceived as the deterioration of the social order.

This was particularly true in the cases that touched on the transition from a discriminatory to a nondiscriminatory workplace. Within a very short time, the Supreme Court began to express concern for what it often referred to as “innocent whites” and “unqualified Blacks” and ultimately sided with the seniority interests of white employees in a way that deviated from what every lower court had previously ruled. In many of these cases, it seemed as if the Supreme Court believed, in a normative sense, that the proclamation of nondiscrimination was sufficient, ignoring the Act's broader purpose of breaking down barriers necessary to move towards a more equal workplace. This view, particularly the concern for white men (women were virtually absent from all of the race cases) and the qualifications of Black employees, was prominent in the private papers of Justice Lewis Powell, who was especially influential in the development of the case law. As will be discussed in more detail in this Article, his memoranda and draft opinions are replete with concern for the white male employees who now had to compete with Black employees, whereas there is virtually no recognition regarding the plight of African Americans or the purpose behind the Act.

It is also worth noting that the shunned progressive vision that had been developed in the lower courts was not the product of a few rogue judges but was instead reflected in majority decisions across many circuits, including the critical southern Fourth and Fifth circuits. So much of legal scholarship--and legal teaching--focuses on Supreme Court decisions; the foundational lower court decisions are rarely read, but they offer a sense of what might have been and reveal how the Supreme Court reflected the conservative vision of the time.

This Article will explore the early development of Title VII by looking at the Supreme Court opinions during the first decade of the Act's development while also analyzing the deliberations that occurred and are now embodied in papers of the Supreme Court justices. In particular, I will rely on the papers of Justice Powell, who was appointed to the Court in 1971 after two previous nominees were not confirmed and who was particularly influential on the Court when it came to interpreting Title VII and civil rights issues more generally. In addition, I will analyze the lower court decisions, both those that were on review in the Supreme Court as well as the broader vision developed in the lower courts, to demonstrate what might have been had the Supreme Court adopted a broader view of the purposes and possibility of Title VII.

Through an exploration of the development of the doctrine, I hope to show that even in the cases that looked like victories for workers, the Supreme Court moved at a cautious pace and was clearly skeptical of how we would transition from a world of segregation and discrimination into a nondiscriminatory setting. Although it is widely recognized that the Supreme Court was hostile to employment discrimination claims in the 1980s, it is less widely appreciated that this hostility and skepticism was present in the earlier decade as well. This realization also suggests that one reason we have not made more progress toward equality through employment litigation is that we never really tried.

Part I of this Article begins by providing an exploration of the statutory and economic background at the time, including how we moved as a society from broad support for the Civil Rights Act to a push for law and order towards the end of the 1960s, a shift that was ultimately reflected in Supreme Court cases. Part II discusses three important Supreme Court cases that established what constituted discrimination and how discrimination was proved before contrasting the Supreme Court's approach--which ultimately became deferential to employers--with the greater scrutiny lower courts applied to employers' practices. Finally, Part III takes up the questions surrounding the interests of white men as they sought to rely on the civil rights statutes to bring claims and to hold onto seniority systems that clearly favored white over Black employees.

I. The Background: Statutory and Economic

The Supreme Court decisions discussed in this Article can best be understood against the backdrop of the social and political context of the time, both at the time the Act was initially passed and a few years later when the cases started to reach the Supreme Court. As we will see, much had changed during that short time period, and those changes likely influenced the Supreme Court's perspective in a way that was reflected in both the analysis and outcomes.

A. The Statute

Title VII was part of the comprehensive 1964 Civil Rights Act that was passed after what remains the longest filibuster in history. That filibuster was broken through a series of compromises that left the Act surprisingly bereft of substance and likewise with little meaningful legislative history. The primary section of the employment provisions of the Act, then and now, reads in significant part:

a) Employer practices

It shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

The Act does not define what it means to discriminate other than through the phrase “because of,” and there was little meaningful legislative history on what it meant to discriminate. As a result, it was left to courts to define discrimination and to determine what acts, and what state of mind, would ultimately be defined as discrimination.

The Act also created a new administrative agency, the Equal Employment Opportunity Commission (“EEOC”), which by design initially had limited enforcement powers. Potential plaintiffs who believed they were the victims of discrimination were required to file a charge of discrimination with the Agency, which would then investigate the claim, and if it found there was reasonable cause to believe discrimination had occurred, it would seek to conciliate the complaint. However, if conciliation failed, the EEOC was initially unable to pursue a court action; instead, the individual who filed the complaint could bring an action in federal court. Congress also failed to provide the EEOC with rulemaking authority, though the Agency would later develop various guidelines that courts sometimes deferred to. The 1972 Amendments to Title VII provided the Agency with enforcement authority. It is worth noting that the EEOC, which was underfunded and understaffed, was quickly overwhelmed with complaints and has never fully recovered, even nearly 60 years later.

Prior to the 1972 amendments, the Justice Department had enforcement authority over what are labeled “pattern or practice claims.” The relevant statutory language is:

Whenever the Attorney General has reasonable cause to believe that any person or group of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights secured by this subchapter, and that the pattern or practice is of such a nature and is intended to deny the full exercise of the rights herein described, the Attorney General may bring a civil action in the appropriate district court of the United States.

As was true with the term “discriminate,” the Act did not define a “pattern or practice,” and it was again ultimately left to the courts to determine both what constituted a pattern or practice of discrimination and how such a claim could be proved.

B. The Economic and Social Setting

Following the passage of the 1964 Act, and the equally momentous Voting Rights Act the next year, riots erupted in the summer and continued for several years thereafter. The riots undeniably changed public opinion regarding the quest for civil rights for Black Americans and other marginalized groups, and public opinion polls moved from majority support even among whites to a majority who expressed concern about the evolving civil rights movement. Two scholars writing about the early days of the civil rights acts commented: “Images of black rioters and burning cities from Los Angeles to Detroit replaced images of southern violence inflicted on peaceful protesters, and Congress grew more skeptical about expanding black civil rights.” In addition to the riots, there were protests regarding other major issues facing the nation, such as the Vietnam War, including the protest at the Democratic National Convention; the Black Power movement; the summer of love, complete with hippies; and widespread unrest on college campuses around the country.

These events, including the riots, were subject to competing public interpretations. As is well known, President Johnson appointed a commission following riots in Detroit and Newark in 1967--it came to be known as the Kerner Commission and was tasked with studying the riots, particularly what had caused them. The Commission's report, which was lengthy and became a best-seller, largely attributed the riots to poverty and white racism, a conclusion that many were unwilling to embrace, including President Johnson, who initially refused to even acknowledge the report. Several years earlier, the McCone Commission was established to study the Watts riots that erupted in 1965, and that Commission concluded that the riots were the product of outside agitators and civil rights activists. At the end of the day, the McCone Commission seemed to have attracted broader public support, even while it was less well known, and the riots produced a law and order sentiment that was largely responsible for the election of Richard Nixon. As we will see, that law and order sentiment found its way into Supreme Court opinions and likely limited the scope and effectiveness of the emerging doctrine.

Since this Article will incorporate the papers of Justice Powell, it is also worth pausing for a moment to consider his relationship to civil rights issues prior to his taking a seat on the Supreme Court. As is well known, Justice Powell was on the Richmond school board for a number of years following Brown v. Board of Education, and while Justice Powell opposed the massive resistance strategy of other southern states, he also advocated for a gradualist approach to desegregating the schools, which resulted in very little progress during his time on the school board. What is perhaps less well known is that in his practice with a prominent Richmond law firm, he represented companies, such as Phillip Morris, that were sued for discriminatory practices and that, up until the passage of the Act, had segregated job lines. As will become relevant later in the Article, Justice Powell's legal work was generally in service of preserving the existing social order.

This was perhaps most evident in a famous piece he prepared at the request of the Chamber of Commerce shortly before he took his seat on the Supreme Court, which emphasized how protests and other social activities of the sixties were threatening the existing order. The memorandum is effectively a meditation on what Justice Powell labelled the threat to the free enterprise system and the assault on our capitalist system by students, Marxists, Communists, anti-business politicians, Ralph Nader, and groups like the ACLU. He also called for monitoring textbooks and television news outlets for anti-capitalist thoughts and offered suggestions for how the Chamber of Commerce could respond to the attacks on business. He noted there had been a number of attacks on the property of Bank of America, and on a number of occasions in the memorandum he worried about how students were becoming radicalized on college campuses. Law Professor Ann South worth called the memorandum a “call to arms,” noting that it ultimately led the Chamber of Commerce to create a litigation arm as recommended by Justice Powell. Justice Powell's memorandum did not become public until the year after his confirmation, when a Washington Post reporter obtained a copy. The reporter, Jack Anderson, labeled the memorandum “militant,” and, in a subsequent column, questioned whether Justice Powell was qualified to hear business cases. As discussed later in this Article, Justice Powell's subsequent employment discrimination opinions reflected this law and order vision and support for American business.

One other historical context that seems relevant to the subsequent developments is the economic status of African Americans in the 1970s as the cases began to arise. In the early 1970s, African Americans had far lower incomes and wealth than whites. One study indicated that African-American men in the South had incomes that were 58% of those of white men and 73% of those of white men outside of the South. The pay gap between Black and white women was smaller but largely because of the lower pay that white women received as the comparison group. The ratio was lowest in the South, where many of the cases originated. Unemployment rates soared in the 1970s and African Americans had rates that were generally twice as high as their white counterparts. It should be noted that African Americans made significant economic progress beginning in the 1960s and into the 1970s, though the progress was uneven and did not eliminate the racial disparities that commonly characterized the labor market. Finally, and relevant to subsequent enforcement actions, approximately 24% of the workforce was unionized in the late 1960s and into the 1970s, with Black workers having a higher representation in unions, as more than a third of Black male workers in private industry were members of unions. In other words, union membership, including in the South, was far more important in the 1970s than it is today, when only about 6% of the private workforce is unionized.

[. . .]

It is hard to believe that by the 1970s, the rights of whites had become as important or threatened as the rights of African Americans. Although the decade began with the important and potentially far-reaching creation of the disparate impact theory, it ended by protecting the rights of white incumbent employees in a way that may have denied African Americans jobs for decades while deferring to employers and their subjective employment judgments, judgments that were often used to further discriminatory ends. We cannot know what might have happened had the Supreme Court subjected routine employer practices to greater scrutiny beginning with the early and still important case of McDonnell Douglas Corp. v. Green. Had the Supreme Court seen Percy Green primarily as an important civil rights activist rather than an unlawful and disruptive scofflaw, the law might have evolved in a way that would have required employers to justify their practices under the business necessity test that was developed for disparate impact cases. We will never know what difference another perspective might have made--a perspective more grounded in the equality goals embodied in Title VII and less concerned with law and order or preserving the old social order.

Foundation Professor of Law, Arizona State College of Law.