Tuesday, July 22, 2014

Celebrating the 50th Anniversary of the Civil Rights Act of 1964

This article, co-authored by Bryan Schwartz Law's principal and legendary civil rights leader Eva Jefferson Paterson, along with Danielle Tizol Fong, is reprinted with the permission of the State Bar of California.
 
Civil Rights at 50

The Civil Rights Act of 1964 was enacted fifty years ago this month.  The three authors of this article come from different backgrounds, but this historic legislation has been equally momentous in each of our lives.  Although only one of us was born when Plessy v. Ferguson was the law, none of us take civil rights for granted. 
         The authors are from communities that experienced invidious job discrimination. Our Black, Jewish, Puerto Rican, and Chinese families suffered in America because of immutable characteristics. The women in our families also were held back in their careers because of stereotypes. Title VII of the Act was designed to abolish employment discrimination, and has provided us, along with millions of other Americans, a vehicle for redress and redemption unlike any other.
            To understand the significance of Title VII, it is important to remember what America was like before the enactment of the Civil Rights Act, and how Title VII has become both a powerful sword and shield for all Americans.

White Supremacy Governed Pre-1964
            Fifty years ago, when President Lyndon Baines Johnson, from the Deep South state of Texas, signed the Civil Rights Act into law, America was a far different place than it is today. 
            The Civil Rights Act of 1964 was born from our nation’s original sin: white supremacy. Under the cloak of white supremacy, we took land from Native Americans, kidnapped and enslaved Africans, took Mexico from Mexicans, passed the Chinese Exclusion Act, and subjected Japanese-Americans to internment camps during WWII, to name several examples.
            Resistance has gone hand in hand with oppression, from slave revolts to present day struggles for racial equality. The chapter of resistance that led to the signing of the Civil Rights Act of 1964 can be traced directly to Alabama.
            In Montgomery, Alabama, in December 1955, activist Rosa Parks refused to give up her seat to accommodate white passengers, kicking off a year-long boycott of Montgomery buses led in part by Dr. Martin Luther King, Jr.[1] In December 1956, the Supreme Court ordered the buses desegregated. In 1963, Rev. Fred Shuttlesworth invited Dr. King to help organize a campaign targeting business owners in Birmingham, Alabama. On April 3, 1963, demonstrators began sit-ins at lunch counters protesting inequality. Over the next nine days, police arrested nearly two hundred demonstrators, including Dr. King who, while in custody, famously penned his “Letter from a Birmingham Jail.”
            The demonstrators were not deterred. On May 2, 1963, they began the “children’s marches.”  Over several days, Birmingham police attacked and arrested thousands of children who marched peacefully.  Police blasted the children with water cannons that broke ribs, tore the clothes from their backs, and lifted them off their feet. Police dogs attacked the children, requiring three of them to be hospitalized.
            After Birmingham, Dr. King barnstormed the country fundraising for the movement. He was shocked to be welcomed at various airports by multi-racial throngs who were both sickened and energized by the images of snarling police dogs and children being assaulted by fire hoses.
            Bayard Rustin and A. Phillip Randolph had long been calling for a March on Washington for Jobs and Freedom.  The national reaction to Birmingham provided energy for the March.  One of the key demands of the more than 200,000 people who marched was passage of an omnibus civil rights act, which eventually became the Civil Rights Act of 1964.
            During the second week of June 1963, Alabama Governor George Wallace stood in the schoolhouse door at the University of Alabama, in bold defiance of a federal court order desegregating that institution.  Later that week, President John F. Kennedy delivered his “Civil Rights Announcement”—one of the first times since Abraham Lincoln that an American president addressed race relations as a moral issue. Invoking the tragedy in Birmingham, President Kennedy recognized that “the rights of every man are diminished when the rights of one man are threatened.”[2]  Later that night, hate-mongers gunned down NAACP Field Organizer Medger Evers in his driveway in Jackson, Mississippi, for his temerity in helping blacks register to vote, adding an exclamation point to the President’s address.
            In September 1963, white supremacist terrorists bombed the 16th Street Baptist Church in Birmingham, Alabama, blowing up black children in Sunday school.  It was time for the government to take decisive action on equality. 
            The Kennedys had been reluctant to push for this legislation because they feared alienating racist Southern Democrats, but the President ultimately stood up for one of the most loyal parts of his Democratic coalition. It would take more than a year, the assassination of Kennedy, the ascension of President Johnson and thousands of Americans of all backgrounds, working together, to secure  passage of the Civil Rights Act of 1964. [3]

Title VII Becomes a Sword and Shield Against Discrimination
            On June 19, 1964, one year to the day since Kennedy’s bill had first gone to the House, nearly seven months into Johnson’s presidency, and exactly 101 years since the Emancipation Proclamation, the Senate passed the Act with bipartisan support, with a vote of 73-27.  On July 2, 1964, the House finally passed the amended version of the Civil Rights Act by a wide margin among both Republicans and Democrats: 289 to 126.
            As originally enacted, Title VII banned employment discrimination on racial, religious, and national origin grounds, and on the basis of sex, providing remedies against private companies.  It further fueled other important laws to broaden equality for all Americans.  A few years later, the Age Discrimination in Employment Act added protections for workers 40 and older.  In 1972, public entities came within both statutes’ reach, and pregnancy discrimination was outlawed in 1978. People with disabilities gained protections in the 1973 Rehabilitation Act and the 1990 Americans with Disabilities Act.  (We are still looking forward to national protections based upon sexual orientation.)
 The Civil Rights Act breathed life into a country’s vision that Americans of all backgrounds would live and work together in equality. No one knew what type of growing pains America would experience, nor how many more battles would still need to be waged to ensure that equality became embedded in American society.
            As President Kennedy noted in his seminal Civil Rights Announcement, before the Act, black children born in the United States, compared to white children, had one-third the chance of becoming a professional, twice as much chance of being unemployed, and one-seventh as much chance of earning a good living (defined as $10,000 per year or more in 1963).  Blacks being born at the time of the Act generally were expected to earn only half as much as whites.
            Dr. King’s leadership of the civil rights protests, the March, and the legislation that grew out of it did not change these disadvantages overnight.  Some of them persist today.  But, they helped lessen inequality and the sense of terror experienced by many people of color and women. After the Act’s passage, people of color and women no longer had to accept biased treatment silently. They could sue someone. They could apply for a job, sit at the lunch counter, and participate equally in society without regard for their skin color, gender, or other now-protected characteristics. There were now laws to protect them if these rights were violated.
            The bill as enacted, however, included amendments that slowed the implementation of Title VII’s prohibition on job discrimination and weakened government enforcement. Until 1972, though the Civil Rights Division of the Department of Justice made strides, especially toward integrating police and fire departments, the U.S. Equal Employment Opportunity Commission could not prosecute Title VII suits.[4]  But amendments favoring court rulings over public enforcement actions spurred vigorous action by “private attorneys general.”[5]
            Because the Act reduced blatant job discrimination—outlawing vacancies announcing that “No Jews or Blacks Need Apply”—the law evolved mechanisms for proving discrimination by inference. Chief Justice Warren Burger’s court sharpened the edges of the Title VII sword to cut down discrimination, with its unanimous decisions announcing the disparate impact theory in Griggs v. Duke Power[6] and creating the disparate treatment model of proof in McDonnell Douglas v. Green.[7]
            The 1971 Griggs decision rejected requirements for a high school diploma and IQ test for power plant positions in North Carolina. Before the Act, the company explicitly relegated blacks to the lowest-paying positions, but after its passage, the company had to eliminate the expressly discriminatory restriction.  The day the Act became effectiveJuly 2, 1965—however, the company escalated its “academic” requirements, where whites registered much higher than blacks.  In the 1960 census, less than 7% of nonwhite males in North Carolina had graduated high school—just over one-third the rate of white males.[8]
            The Burger Court in Griggs recognized the long history of inferior education in segregated schools provided to North Carolina blacks, stating, “The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation.  The touchstone is business necessity.”[9]  After Griggs, if an employment practice operates to exclude protected groups, and cannot be shown to be related to job performance, the practice is prohibited. Unlike a constitutional violation, a prima facie “disparate impact” case under Title VII may be established without any proof of intentional discrimination.[10]  In Griggs, the Court concluded that neither the high school completion requirement nor the general intelligence test “bore a demonstrable relationship to successful performance of the jobs” for which they were used.[11]
            The 1973 McDonnell Douglas decision arose from events soon after the Act’s passage.  In 1965, Green—a laid off McDonnell Douglas mechanic and technician— organized as part of a civil rights protest a “stall-in” to have cars block the roads used to access the St. Louis-based aerospace manufacturing plant during morning rush hour.  Police arrested him.  The civil rights protesters also staged a “lock-in” during a picketing demonstration to prevent employees from entering or leaving the company’s offices.  Three weeks later, McDonnell Douglas was hiring mechanics, and Green applied.  The company refused to rehire him because of his role in the “stall-in” and “lock-in.”
            McDonnell Douglas built upon Griggs “to state the applicable rules as to burden of proof and how this shifts upon the making of a prima facie case.”[12]  A prima facie showing under the anti-discrimination statutes, following McDonnell Douglas, includes: articulating a protected basis, such as race or sex; showing that an individual (in the non-selection context) applied for a job vacancy but was not selected (i.e., an adverse action); and that the employer continued to seek applicants with similar qualifications (i.e., others similarly situated, not in the protected class, were treated differently).  The burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. Assuming the employer articulates one (e.g., in Green’s case participating in disruptive protests,), McDonnell Douglas shifts the burden to the complainant to prove the employer’s asserted reason is false, and further gives a roadmap for doing so.
            The Court explained: “While Title VII does not, without more, compel rehiring of [Green], neither does it permit [McDonnell Douglas] to use [Green]’s conduct as a pretext” for prohibited discrimination.[13]  The Court remanded to allow Green to prove pretext with evidence, such as: “that white employees involved in acts against [the company] of comparable seriousness to the ‘stall-in’ were nevertheless retained or rehired;” “as to [the company’s] treatment of [Green] during his prior term of employment; the company’s reaction, if any, to [Green’s] legitimate civil rights activities; and [of the company’s] general policy and practice with respect to minority employment. On the latter point, statistics as to [the company’s] employment policy and practice may be helpful to a determination of whether [its] refusal to rehire [Green] in this case conformed to a general pattern of discrimination against blacks.”[14]  As a measure of its impact, Westlaw reflects nearly 137,000 citing references to the McDonnell Douglas decision.
            It took a while longer, but in 1986, a unanimous Burger Court, with the first female Justice, Sandra Day O’Connor, participating, fashioned Title VII into a shield against sexual harassment, in Meritor Savings Bank v. Vinson.[15]  The Court in that decision embraced the “hostile working environment” theory.  The Bank’s Vice President constantly propositioned Vinson for sex—and, out of fear of losing her job, she eventually agreed. The Court built its decision on the Equal Employment Opportunity Commission's Guidelines on Discrimination Because of Sex,[16] which outlined two types of sexual harassment—economic quid pro quo, and hostile working environment.
            The Court noted that “[t]he prohibition against discrimination based on sex was added to Title VII at the last minute on the floor of the House of Representatives”[17]—and therefore, little legislative history explained what was intended in the ban on sex discrimination.[18]  The Bank argued that “in prohibiting discrimination with respect to ‘compensation, terms, conditions, or privileges’ of employment, Congress was concerned with . . . ‘tangible loss’ of ‘an economic character,’ not ‘purely psychological aspects of the workplace environment.’”[19] The Supreme Court rejected this view, holding that Title VII was not “limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment.”[20]
            The conservative Supreme Court majorities since the Burger Court have continued to expand Title VII’s protection from retaliation against those who engage in protected activity by complaining of discrimination. For example, in Burlington N. & Santa Fe Ry. Co. v. White,[21] the Court held that the anti-retaliation provision of the Act proscribes not only employment-related adverse actions, but any action that might deter someone from opposing discrimination.
            For almost three decades since the Burger Court’s landmark decisions, advocates have also used Title VII class actions to make greater strides in the war against discrimination.  The 2011 Wal-Mart Stores v. Dukes decision appeared as a major setback, making it more difficult to certify a class action alleging an unwritten policy limiting promotion of women to management roles.[22]
            Major anti-discrimination class action victories since Dukes demonstrate that anti-discrimination forces remain committed to the pursuit of equality.  For example, in McReynolds v. Merrill Lynch, black financial advisors for Merrill Lynch struck a major victory against a policy of “teaming” up between brokers, resulting in major disparities between the income of blacks and whites.[23]  As Judge Richard Posner of the Seventh Circuit noted, the teams were effectively “little fraternities,” “and as in fraternities the brokers choose as team members people who are like themselves,” leading white brokers to team with other whites.[24] In 2014, the class will divide a $160 million settlement, and receive injunctive relief designed to end the unlawful policy and increase opportunities for African-American financial advisors and trainees.[25]

Title VII—the Next 50 Years
            Just blocks from where slave ships once docked, Rosa Parks boarded that Montgomery, Alabama bus in 1955 across the street from a pre-Civil War sign still hanging, which read, “Slaves and Livestock Sold Here.”  People thought they could go to Africa, kidnap black people and put them in ships, bring them here, and work them without pay, without consequences.  That is the subtext of Title VII of the Civil Rights Act.
            In 2014, America is a better place.  We elected the first Black President.  But we are not yet free of discrimination, especially in the workplace.  There is still much work to be done by each of us, especially those of us who practice employment law.
            Educational attainment to enable workforce participation is up from 1963, when President Kennedy’s address profiled the crisis in the African-American community.  Now, 80% of blacks have high school diplomas (slightly less than non-blacks), and 19% have at least a bachelor’s degree.[26]  One-third of employed black women have management or professional occupations, and almost two-thirds of black women have “white collar” occupations.[27]
            But, blacks graduate four-year colleges 10% less than the national average.[28]  Blacks continue to have the lowest labor force participation rate of any major race or ethnic group.[29] Although African-Americans are more likely than other populations to have government jobs, in 2014, blacks still have an unemployment rate almost double that of the overall population.[30]  Blacks are much less likely than other ethnic groups to own their own businesses.[31]  In 2012, the U.S. Census Bureau reported that blacks were still approximately twice as likely as other races to live in poverty.[32]  Apart from these economic indicators, studies show that many Americans harbor a latent fear that blacks will be as terrible to the rest of the country as the rest of the country was to blacks.[33]
            Not only blacks, but women of all races continue to suffer a wage gap, earning 77 cents for each dollar earned by men, more than 50 years after the original implementation of the Equal Pay Act.[34]
            Through Title VII, we can advance as much in the next fifty years as we have in the last fifty, if we continue to work together toward equality in a variety of settings.  As corporate counsel, we can fight on the inside—advising employers to take strong actions to combat discrimination in all its forms. We fight externally, as advocates and litigators, by bringing meaningful cases against wrongdoers. No matter where we are in the labor and employment bar, we can make a difference. Remember, Thurgood Marshall was just a law student when he became part of the team that overturned Plessy v. Ferguson.
           
The late Maya Angelou’s poem, “And Still I Rise,” says, “I am the dream and the hope of the slave.” The message rings true not just for blacks, and not just for plaintiffs’ lawyers. Someone in the Middle Passage, or living through the Holocaust, or any of the other great human indignities, never could never have imagined such a diverse group determined to ensure workplace fairness for black people, all people of color, men and women, Jews, Christians, and Muslims, gays and lesbians. We are all the dream and the hope of the slave.


[1] The historical notes in this essay are provided with help from David Benjamin Oppenheimer, Kennedy, King, Shuttlesworth and Walker: The Events Leading to the Introduction of the Civil Rights Act of 1964, 29 U.S.F. L. Rev. 645 (1994-95) and Todd S. Purdum, An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 (Henry Holt and Co. 2014).
[2] President John F. Kennedy, Civil Rights Announcement (June 11, 1963)  (transcript available at: http://www.Pbs.Org/Wgbh/Americanexperience/Features/Primary-Resources/Jfk-Civilrights/).
[3] Two recent books highlighting the critical intervention of the National Council of Churches and other conservative, religious activists in aligning bipartisan support and achieving the Act’s passage are Purdum, supra n.1, and Clay Risen, The Bill of the Century: The Epic Battle for the Civil Rights Act (Bloomsbury Press 2014).
[4] The Federal Civil Rights Enforcement Effort—1977, A Report of the United States Commission on Civil Rights (December 1977), p. 225, n.41.
[5] Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 715 (7th Cir. 1969); Jenkins v. United Gas Corp., 400 F.2d 28, 32, 33 n.10 (5th Cir. 1968); Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 499 (5th Cir. 1968).
[6] 401 U.S. 424 (1971).
[7] 411 U.S. 792 (1973).
[8] U.S. Census Bureau, 1960 Census, Vol. 1, “Characteristics of the Population,” pt. 35, Table 47.
[9] Griggs, 401 U.S. at 431.
[10] Gay v. Waiters' & Dairy Lunchmen's Union, Local No. 30, 694 F.2d 531, 537 (9th Cir. 1982).
[11] Griggs, 401 U.S. at 431.
[12] McDonnell Douglas, 411 U.S. at 801.
[13] Id. at 804.
[14] Id. at 804-5.
[15] Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986).
[16] 29 CFR § 1604.11(a) (1985).
[17] Citing 110 Cong. Rec. 2577–84 (1964).
[18] Meritor, 477 U.S. at 63-4.
[19] Id. at 64.
[20] Id.
[21] 548 U.S. 53, 64 (2006).
[22] 131 S. Ct. 2541 (2011).
[23] 672 F.3d 482 (7th Cir. 2012) cert. denied, 133 S. Ct. 338 (2012).
[24] Id. at 489.
[25] Merrill Class Action Disparate Impact Race Discrimination Class Action Home Page, http://www.merrillclassaction.com/settlementnotice.html (last visited May 6, 2014).
[26] Black Demographics Poverty Page, http://blackdemographics.com/education-2/education/ (last visited May 6, 2014) and U.S Census Bureau, 2009-11 3-Year American Community Survey, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_3YR_S0201&prodType=table (last visited May 6, 2014).
[27] Bureau of Labor Statistics, The Editor’s Desk, http://www.bls.gov/opub/ted/2011/ted_20110914.htm (last visited May 6, 2014) and Black Demographics, Employment Page, http://blackdemographics.com/economics/employment/ (last visited May 6, 2014).
[28] Black Demographics, Education Page, http://blackdemographics.com/education-2/education/ (last visited May 6, 2014) and U.S. Census Bureau, 2009-2011 3-Year American Community Survey, http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_11_3YR_S0201&prodType=table (last visited May 6, 2014).
[29] Bureau of Labor Statistics, Labor Force Statistics by Race and Ethnicity, 2010,  http://www.bls.gov/cps/cpsrace2010.pdf (last visited May 6, 2014) and Black Demographics, Employment Page, http://blackdemographics.com/economics/employment/ (last visited May 6, 2014).
[30] Black Demographics, Employment Page, http://blackdemographics.com/economics/employment/ (last visited May 6, 2014) and Bureau of Labor Statistics, Charting the Labor Market Data from the Current Population Survey (CPS), http://www.bls.gov/web/empsit/cps_charts.pdf (last visited May 6, 2014).
[31] Black Demographics, Black Owned Businesses Page, http://blackdemographics.com/economics/black-owned-businesses/ (last visited May 6, 2014) and U.S. Census Bureau, Survey of Business Owners, http://www.census.gov/econ/sbo/getsof.html?07black (last visited May 6, 2014).
[32]Black Demographics, Poverty Page, http://blackdemographics.com/households/poverty/ (last visited May 6, 2014) and U.S Census Bureau, 2012 1-Year American Community Survey,    http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_12_1YR_S1703&prodType=table (last visited May 6, 2014).
[33] See, Charles Lawrence, The Id, Ego and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987) and Mahazarin R. Banaji and Anthony G. Greenwald, Blind Spot: Hidden Biases of Good People (Delacorte Press 2013).
[34] National Partnership for Women and Families Study, http://go.nationalpartnership.org/site/DocServer/Wage_Gap_National.pdf?docID=12421 (last visited June 3, 2014), citing  U.S. Census Bureau. (2012). Current Population Survey, Annual Social and Economic (ASEC) Supplement: Table PINC-05. Work Experience in 2011.