11/28/2005 7:22:43 PM Celebration of Title VII at Forty ERIC S. DREIBAND* It is a pleasure to be here to celebrate forty years of Title VII. It is a particular privilege to be in Memphis, a city that played a historical role in this nation’s civil rights struggle as, among other things, the place where Martin Luther King, Jr. gave his final speech. Given the topic of this conference—forty years of Title VII—and the position I hold as General Counsel of the United States Equal Employment Opportunity Commission, I thought it most appropriate that I speak with you today about the origins of the Act that created the EEOC, which was the Civil Rights Act of 1964. First, I thought it useful to discuss the events that led to the creation of the EEOC. Much of the history is likely familiar to you. In 1954, the Supreme Court’s Brown v. Board of Education decision declared segregation to be inconsistent with the Constitu- tion’s guarantee of “equal protection of the laws.” From 1954 to 1963, the nation witnessed the civil rights movement in action: lunch counter sit-ins, the Montgomery, Alabama bus boycotts of 1955 and 1956, acts of civil disobedience, controversies over the desegregation of schools, resistance to integration, and the murders of civil-rights activists. The events of 1963 and 1964—the events that led two presi- dents and the Congress to act—are what I will focus on today. What is striking is how much of a moral issue the Civil Rights Act of 1964 was, both for its supporters and for its opponents. In the spring of 1963, Martin Luther King, Jr. was arrested in Birmingham, Alabama for leading civil rights protests there. Eight members of the Alabama clergy publicly criticized civil rights pro- * Eric S. Dreiband is a Partner with Akin, Gump, Strauss, Hauer, & Feld, LLP in Washington, D.C. Mr. Dreiband served as General Counsel of the United States Equal Employment Opportunity Commission prior to joining the firm’s Labor and Employment practice group. He delivered these remarks at the Fogelman Executive Conference Center at the University of Memphis on April 1, 2005, in Memphis, Tennessee. 5 11/28/2005 7:22:43 PM 6 The University of Memphis Law Review Vol. 36 testers for their unwillingness to be more patient about the issue of racial justice. On April 16, 1963, Dr. King responded with what is now known as his “Letter from Birmingham Jail.” He asked them to consider “our legitimate and unavoidable impatience.” “We have waited for more than 340 years for our constitu- tional and God-given rights,” he explained. Dr. King then listed some of the many forms of racial injustice that existed in the nation at that time. He wrote about lynchings, police brutality, and the various forms of humiliation and horror suffered by so many be- cause of racism. His description of his children’s suffering is par- ticularly poignant. This is what he said: [W]hen you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six- year-old daughter why she can’t go to the public amusement park that has just been advertised on televi- sion, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness to- ward white people; when you have to concoct an answer for a five-year-old son who is asking: “Daddy, why do white people treat colored people so mean?;” when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs read- ing “white” and “colored;” when your first name be- comes “nigger,” your middle name becomes “boy” (however old you are), and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.;” when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerat- ing sense of “nobodiness”—then you will understand why we find it difficult to wait. Dr. King and his supporters met their opponents in a struggle that continued throughout Birmingham and elsewhere during the summer of 1963. Indeed, the summer of 1963 witnessed, in Dr. 11/28/2005 7:22:43 PM 2005 Celebration of Title VII at Forty 7 King’s words, “a simultaneous, massive assault against segrega- tion.” In Birmingham, civil rights supporters protested segregation in public facilities, and their protests met a violent reaction. Ala- bama Governor George Wallace, then a supporter of “segregation now, segregation tomorrow, segregation forever,” received a warn- ing from President John Kennedy that he would order federal troops into Birmingham if the violence continued. This did not deter Governor Wallace. In June 1963, he stood at the door of the University of Alabama and proclaimed that he would block the enrollment of black students there. He relented after the president federalized National Guard troops and sent the troops to integrate the university. Still, the violence continued in Birmingham and elsewhere. Television brought the violence in Birmingham into American homes. Americans turned on their television sets and saw police dogs snarling at protesters and fire hoses being turned against marchers. These images shocked the nation. The violence was not limited to Birmingham. Dr. King wrote that during the summer of 1963: America’s shame acquired new place names: Oxford, Mississippi—mobs shrieking for blood attack federal marshals and before order is restored two men are dead. . . . Gadsden, Alabama—a new and barbarous weapon is introduced for use against Negroes, the electric cattle prod. . . . Danville, Virginia—upright white citizens, concerned that police brutality is insufficient to intimi- date Negroes, begin wearing guns in their belts. “Seen in perspective,” Dr. King reflected, “the summer of 1963 was historic partly because it witnessed the first offensive in history launched by Negroes along a broad front.” Dr. King also noted that “the virtues so long regarded as the exclusive property of the white South—gallantry, loyalty, and pride—had passed to the Negro demonstrators in the heat of the summer’s battles.” On June 11, 1963, President Kennedy spoke to the nation in a nationally televised address. “We are confronted primarily with a moral issue,” the presi- dent said. “It is as old as the scriptures and it is as clear as the American Constitution. The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities, 11/28/2005 7:22:43 PM 8 The University of Memphis Law Review Vol. 36 whether we are going to treat our fellow Americans as we want to be treated.” “It ought to be possible,” he continued, “for every American to enjoy the privileges of being American without regard to his race or his color. In short, every American ought to have the right to be treated as he would wish to be treated, as one would wish his children to be treated. But this is not the case.” The president announced that he was, therefore, “asking the Congress to enact legislation giving all Americans the right to be served in facilities which are open to the public”—hotels, restau- rants, theaters, retail stores, and similar establishments. The presi- dent added, “I’m also asking the Congress to authorize the Federal Government to participate more fully in lawsuits designed to end segregation in public education. . . . Other features will be also requested, including greater protection for the right to vote.” The President’s remarks, and his proposed civil rights bill, did not please everyone. The next day, June 12, in Jackson, Missis- sippi, civil rights activist Medgar Evers led a protest against segre- gation. That evening, Mr. Evers arrived home, stepped out of his car, and was shot in the back. He fell to the ground, and died in his driveway as his wife and children watched in stunned disbelief. A week later, on June 19, 1963, the president sent Congress a civil rights bill. The bill proposed to outlaw race and other forms of discrimination against Americans in voting, places of public accommodations, and education. On August 28, 1963, in Wash- ington, D.C., as part of the March on Washington, Martin Luther King, Jr. gave his “I Have a Dream” speech. The dream would remain a dream in 1963. On a Sunday morning in September, 1963, members of the Ku Klux Klan bombed a Birmingham church. Four young girls were killed and twenty-one others were injured. Meanwhile, in Washington, Congress continued to debate the president’s bill. The debate in the House of Representatives was long and contentious. The Department of Justice drafted the origi- nal bill, and that draft did not extend to employment. During the summer of 1963, a subcommittee of the House Judiciary Commit- tee conducted hearings and strengthened the president’s bill by adding, among other things, the guarantee of equal employment opportunities. The House Judiciary Committee issued a favorable 11/28/2005 7:22:43 PM 2005 Celebration of Title VII at Forty 9 report about the bill on November 20, 1963. Two days later, on November 22, 1963, President Kennedy was killed in Dallas. Following President Kennedy’s death, President Lyndon Johnson made civil rights legislation a priority, equal to that of the planned 1964 election-year tax cut. Five days after the Kennedy assassination, on November 27, 1963, the President addressed a joint session of Congress and called on the Congress “to enact a civil rights law so that we can move forward to eliminate from this Nation every trace of discrimination and oppression that is based upon race or color.” The president added, “The time has come for Americans of all races and creeds and political beliefs to under- stand and to respect one another.” He called on Americans to “put an end to the teaching and the preaching of hate and evil and vio- lence. Let us turn away from the . . . apostles of bitterness and bigotry, from those defiant of law, and those who pour venom into our Nation’s bloodstream.” Back in the Congress, the bill remained stalled before the House Rules Committee until January 30, 1964, when the Commit- tee released the bill to the full house. For nine days, the House debated various amendments to both the Act generally and to the employment section, Title VII, specifically. On February 1, 1964, Mississippi Representative Abernathy charged that Title VII was unconstitutional. Title VII, he said, would reach and control “the most remote corner of our social structure and virtually all of our economic structure.” According to Representative Abernathy, Title VII would “assume authority over the American people in a manner unmatched in modern his- tory outside acknowledged dictatorships.” Representative Aber- nathy said that, under our Constitution, “[i]f a department store manager wants to hire all blond sales clerks, he can hire blond sales clerks. His wife might object, but the Federal Government cannot.” On February 8, 1964, the House considered an amendment that would have entitled employers to refuse to “hire and employ any person because of said person’s atheistic practices and be- liefs.” The amendment’s proponent, Representative John Ashbrook of Ohio, observed that, while the bill would prohibit discrimination because of religion, “[i]t seems incredible that we would even seriously consider forcing an employer to hire an athe- ist.” This, he said, “is one of the booby traps in the bill which the 11/28/2005 7:22:43 PM 10 The University of Memphis Law Review Vol. 36 sponsors have very glibly alleged did not exist.” The House adopted the amendment, but the Senate deleted it later. That same day, February 8, 1964, Representative Howard Smith of Virginia—an individual who had held up the bill in the House Rules Committee and was thought to oppose the bill— offered a one-word amendment. “After the word ‘religion,’” Smith said, “insert the word ‘sex.’” Conventional wisdom has held that Representative Smith of- fered the amendment to derail the bill, though some recent scholar- ship has called that notion into question.1 Representative Smith himself explained when he proposed the amendment that “all throughout industry women are discriminated against in that just generally speaking they do not get as high compensation for their work as do the majority sex.” He added that his proposed amend- ment would not “do any harm” and that “I think it will do some good for the minority sex.” Representative Smith’s remarks reflect the fact that the prohibition of sex discrimination was added only to Title VII—the employment section—and not to any of the other parts of the Act. Representative Martha Griffiths of Michigan and an entity called the National Women’s Party had suggested the amendment to Smith, probably because Representative Smith had been a sup- porter of the Equal Rights Amendment since as early as 1943, and the National Women’s Party had lobbied for it since 1923. And, at least one recent scholar has asserted that Title VII’s sex prohibition was a surrogate for the Equal Rights Amendment.2 Additionally, a year earlier, the Congress had heard extensive testimony about sex discrimination faced by women in the work force. Eight months earlier, in June 1963, President Kennedy had signed the Equal Pay Act, which protects men and women who perform substantially equal work in the same establishment from sex-based wage dis- crimination. Whatever the reasons, the House debated the amendment in what became known as “Ladies Day.” Representative Emanuel 1. See Jo Freeman, How "Sex" Got Into Title VII: Persistent Opportun- ism as a Maker of Public Policy, 9 LAW & INEQ. 163 (1991). 2. See id. at 163–84. 11/28/2005 7:22:43 PM 2005 Celebration of Title VII at Forty 11 Cellar, who opposed Smith’s amendment, said that in his house- hold there was no tension between the sexes. “I usually have the last two words,” he said, “and those words are ‘Yes, dear.’” Representative Edith Green joined the opposition. “I do not know whether, after I leave the floor today, I shall be called an ‘Uncle Tom’—or perhaps an ‘Aunt Jane,’” she said. “But I do not believe this is the time or place for this amendment. . . . This bill is primarily for the purpose of ending discrimination against Negroes in voting and in public accommodations and in education, and yes, in employment.” Representative Katharine St. George spoke in support of the amendment: “We outlast you. We outlive you. We nag you to death. . . . We are entitled to this little crumb of equality. The ad- dition of that little, terrifying word ‘s-e-x’ will not hurt this legisla- tion in any way. In fact, it will improve it. . . . It will make it right.” The amendment passed that day, by a vote of 168 to 133. Two days later, on February 10, 1964, the House considered an amendment that would permit employment discrimination against communists and other similar “subversive groups.” One supporter of the amendment, South Carolina Representative Wil- liam Jennings Bryan Dorn, declared that permitting discrimination against communists was “essential to the security of this Nation. Communists and subversives have been all too active under our present laws. We have been too lenient.” Representative Dorn warned that “[t]o force an employer to hire Communists and sub- versives will endanger our American way of life and would be the surest way to undermine America as the arsenal of democracy and the heart and core of the free world.” The amendment passed by a voice vote. Another amendment would have limited the life of the EEOC to four years. Representative Robert Sikes of Florida proposed the amendment. He predicted that the EEOC would “reduce all American enterprise to a commissar-dictated shambles and all American employees to a common dull level.” Rep. Sikes added: When Khrushchev said he would bury the West, he probably had in mind a procedure like this, by which America destroys itself. But in his wildest dreams, I 11/28/2005 7:22:43 PM 12 The University of Memphis Law Review Vol. 36 doubt that he envisioned our two major political parties scrambling for top hold on the shovel with which to dig the grave. “This bill,” Sikes charged, “would kill the American free en- terprise system. . . . It would give the Russians their finest oppor- tunity to pass us on all fronts—to take over world leadership.” One supporter of the bill, Representative John Lindsay of New York, said that the proposal to kill the Commission after four years reminds me of the story of the lady who was being tried for killing her husband and testified that “It was really very painful for me to have to kill my husband, but out of my deep love for him when I pulled the trigger on the double-barreled shotgun I squeezed ever so gently. Rep. Sikes objected: “I hope,” he said, “the gentleman is not implying that I love this bill.” The amendment was defeated by a vote of 86 to 131. Finally, after debate ended, the House voted in favor of the bill on February 10, 1964, and sent it to the Senate. The Senate took more time with the bill. Senate supporters of the bill feared the opponents on the Senate Judiciary Committee would kill the bill in committee, so, by a 54 to 37 vote, they persuaded the full Senate to place the bill directly on the Senate calendar. More par- liamentary maneuvering delayed the Senate’s full consideration until March 26, 1964. Opposition to the bill in the Senate was fierce, and opponents led a filibuster of the bill. On April 8, 1964, for example, North Carolina Senator Sam Ervin denounced Title VII because, he said, “[t]his bill is based on the proposition that an employer’s guilt de- pends solely upon an illegal thought; in other words this is a thought control bill. The employer is to be judged on the basis of what he thinks rather than on what he does.” Senator Ervin ob- jected to the creation of the EEOC. He warned that “[t]he Com- mission could say to the employer, ‘You will either do as we say, or we will put the law to you.’” The pending bill, Senator Ervin warned, “would remove the power from employers to hire, pro- mote, and discharge their own employees.” New Jersey Senator Clifford Case, a supporter of the bill, charged that Senator Ervin was “spinning a fine web of fantasy.” 11/28/2005 7:22:43 PM 2005 Celebration of Title VII at Forty 13 Senator Case added that “[t]here is discrimination in this country in employment, as well as in other areas, and it is time we did some- thing about it.” On May 13, Illinois Senator Everett Dirksen joined with Sena- tors Mike Mansfield and Hubert Humphrey and proposed changes to the House bill. The major change in what was called the Dirk- sen-Mansfield substitute was to lessen the emphasis on federal en- forcement in cases of fair employment and public accommodations violations. The substitute gave higher priority to voluntary com- pliance than the House bill, and it encouraged more private, rather than legal, initiatives. Under the substitute bill, the EEOC would not be able to sue employers in federal court for alleged violations of Title VII, and the Attorney General could only intervene in pri- vate lawsuits and bring pattern or practice cases. Still, in spite of the Dirksen-Mansfield substitute, the filibuster continued. Opponents of the bill continued to rail against the crea- tion of the EEOC. “It goes without saying,” West Virginia Senator Robert Byrd opined, “that the Commission will need an army of . . . persons to police and administer the act. . . . Here we shall see the sprouting and flowering, the mushrooming, ballooning of an en- tirely new bureaucratic activity which, like Tennyson’s brook, will go on and on forever.” He continued, “Law-abiding, conscientious people are being sold a ‘pig in a poke.’” Finally, on June 10, 1964, after the bill’s opponents had made their case, Senator Everett Dirksen rose on the floor of the Senate and spoke support of the bill. He asked the Senate to end the fili- buster. “Pending before us,” he said, “is [a] moral issue. Basically it deals with equality of opportunity in exercising the franchise, in securing an education, in making a livelihood, in enjoying the mantle of protection of the law.” Senator Dirksen noted that “[t]oday is an anniversary. It is in fact the one hundredth anniversary of the nomination of Abraham Lincoln for a second term for the presidency on the Republican ticket.” At Gettysburg, Dirksen observed, Lincoln seconded Tho- mas Jefferson’s Declaration that the United States was “‘a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.’” Dirksen added, “Today let us not be found wanting in whatever it takes by way of moral and spiritual substance to face up to the issue and to vote cloture.” 11/28/2005 7:22:43 PM 14 The University of Memphis Law Review Vol. 36 The Senate, or at least seventy of its members, agreed with Senator Dirksen, and the Senate voted to end the filibuster, 71 to 29. The vote that day was the first time in history that the Senate had voted to end a filibuster of a civil rights bill. Two days later, on June 12, Roy Wilkins, Executive Secretary of the National Association for the Advancement of Colored Peo- ple, wrote to Senator Dirksen that [w]ith the passage of the bill . . . the cause of human rights and the commitment of a great, democratic gov- ernment to protect the guarantees embodied in its consti- tution will have taken a giant step forward. Your leader- ship of the Republican party in the Senate at this turning point will become a significant part of the history of this century. Nine days later, on June 21, 1964, civil rights workers Mi- chael Schwerner, Andrew Goodman and James Chaney disap- peared in Philadelphia, Mississippi. They were there to investigate a Ku Klux Klan attack on Mount Zion Methodist Church. Police arrested them, allegedly for speeding, jailed them, and then released them. After they were released, carloads of Ku Klux Klansmen ambushed and murdered them. Their bodies were found after a forty-four day search, buried in an earthen dam. Less than two weeks after the murders in Philadelphia, and af- ter more back-and-forth between the House and Senate, the bill reached President Johnson’s desk on July 2, 1964. Before he signed the bill, the president spoke. “We believe,” he said, “that all men are created equal—yet many are denied equal treatment. We believe that all men have certain inalienable rights. We believe that all men are entitled to the blessings of liberty—yet millions are being deprived of those blessings, not because of their own failures, but because of the color of their skins.” He continued: The reasons are deeply embedded in history and tradi- tion and the nature of man. We can understand without rancor or hatred how all this happens. But it cannot con- tinue. Our Constitution, the foundation of our Republic, forbids it. The principles of our freedom forbid it. Mo- rality forbids it. And the law I sign tonight forbids it. 11/28/2005 7:22:43 PM 2005 Celebration of Title VII at Forty 15 As enacted, the Civil Rights Act primarily sought to make unlawful race, color, and religious discrimination in voting, public accommodations, public education, and employment. Title VII of the Act made race, color, religion, sex, and national origin dis- crimination in employment unlawful. The Act also made it unlaw- ful to discriminate against any individual who opposed unlawful discrimination and made it unlawful to discriminate against any person who filed a charge or otherwise participated in a Title VII proceeding. Title VII established the five-member Commission. The President was to appoint each Commissioner with the advice and consent of the Senate. According to the Act, no more than three members could be of the same political party, and Commissioners would serve staggered five-year terms. The Act provided that the president would designate one of the Commissioners to serve as the Chairman or Chair, and another to serve as Vice Chairman or Vice Chair. The Chair was to be responsible for the administrative operations of the Commission. The Act also provided that the Commission would have an “official seal which shall be judicially noticed.” Title VII originally gave the Commission authority to receive, investigate, and conciliate complaints when it found reasonable cause to believe that discrimination had occurred. When the EEOC was unsuccessful in conciliating the complaints, the statute provided that individuals could bring private lawsuits, and the EEOC could refer cases that involved a “pattern or practice” of discrimination to the Department of Justice for litigation. The De- partment of Justice could file lawsuits in pattern or practice cases and could intervene in lawsuits if the Attorney General certified that the case was of “public importance.” Under the Act, the fed- eral government had no other ability to enforce Title VII by court proceedings. The Act did not solve the nation’s ills, nor did it unite the country. Two days after the President signed the bill, Alabama Governor and presidential candidate George Wallace denounced the bill as “the most monstrous piece of legislation ever enacted by the United States Congress. It is a fraud, a sham, and a hoax.” Governor Wallace predicted that “[t]his bill will live in infamy. . . . It is the assassin’s knife stuck in the back of liberty.” 11/28/2005 7:22:43 PM 16 The University of Memphis Law Review Vol. 36 The Civil Rights Act of 1964 was far from perfect. The EEOC came into existence with no meaningful ability to enforce the law. Unlike the National Labor Relations Board, it did not have cease-and-desist authority. The EEOC also did not have liti- gation authority. The Justice Department’s litigation authority was limited. But the Act in general, and Title VII in particular, represented a statement by our elected officials—Presidents Kennedy and Johnson and majorities of both Houses of Congress—that dis- crimination was both immoral and unlawful. In this sense, it was like President Lincoln’s Emancipation Proclamation. That Proc- lamation declared slavery wrong, and unlawful, but it was limited to liberating only “persons held as slaves within any State or des- ignated part of a State . . . in rebellion” as of January 1, 1863. It therefore freed not a single slave. The Proclamation’s defects were corrected later with the enactment of the Thirteenth Amendment to the Constitution. And, after 1964, Congress and subsequent presidents saw fit to amend Title VII. In 1972, Congress authorized the EEOC to conduct litigation in the federal courts of the United States and directed the President to appoint a General Counsel with the advice and consent of the Senate. I am personally happy about those amendments. In 1991, Congress and the President added jury trials and compensatory and punitive damages to Title VII. These and other changes have added to the EEOC’s enforcement mechanisms, and, I suspect, will not be the last we see of changes to Title VII over the years. 11/28/2005 7:22:43 PM 2005 Celebration of Title VII at Forty 17 SOURCES CongressLink, The Dirksen Congressional Center, Everett M. Dirksen, The Civil Rights Bill, June 10, 1964. CongressLink, Major Features of the Civil Rights Act of 1964. Jo Freeman, How “Sex” Got Into Title VII: Persistent Oppor- tunism as a Maker of Public Policy, 9 LAW & INEQ. 163 (1991). MARTIN LUTHER KING, JR., WHY WE CAN’T WAIT (W.W. Norton & Co. 1963). Reorganization Plan No. 1 of 1978, 43 F.R. 19807, 92 Stat. 3781 (Feb. 28, 1978). JONATHAN ROSENBERG & ZACHARY KARABELL, KENNEDY, JOHNSON, AND THE QUEST FOR JUSTICE: THE CIVIL RIGHTS TAPES (W.W. Norton & Company 2003). U. S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, LEGISLATIVE HISTORY OF TITLES VII AND XI OF CIVIL RIGHTS ACT OF 1964 (1968).
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