Thursday, February 13, 2014

Title VII as Precedent: Past and Prologue for Future Legislation

The title of this post comes from this compelling paper by Professor George Rutherglen exploring the pattern of civil rights legislation since the passage of the Civil Rights Act of 1964. Here's the abstract:

Congress passed the Civil Rights Act of 1964 after nearly 90 years in which it enacted no major civil rights legislation. The 1964 Act stood out then - as it stands out now - as Congress acting at its best rather than its worst. It confronted the historic problem of race in America, it overcame partisan divisions and sectional obstruction, and it acted to enforce constitutional principles. This is not to say that sponsors of the legislation made no compromises in the 1964 Act. On the contrary, they had to do so, particularly in the Senate, to obtain the two-thirds majority then needed to close off debate and end a filibuster. The resulting legislation, compromises and all, then became the foundation for all employment discrimination law, providing the template for prohibitions against discrimination on the basis of age and disability. Even more remarkably, the legislation was consistently extended and reinforced, often over the narrowing interpretations imposed by the Supreme Court. Long after the Civil Rights Era had ended, Congress continued to pass expansive and progressive legislation, with virtually no examples to the contrary. The few restrictive or qualifying provisions that Congress enacted invariably came as compromises, like those in the 1964 Act, added in order to pass expanded prohibitions against discrimination. This article recounts this pattern of legislation, the role that Title VII played in it, and possible explanations for it. These explanations, like those for passage of the 1964 Act, extend over a wide range: from the simple selection effect of noticing only the statutes that are passed rather than those that fail, to an unholy alliance between plaintiffs’ lawyers and big business, to the moral and ideological force of the principle against discrimination.

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This was a fascinating paper, where I learned quiet a bit from Professor Rutherglen about the wide range of standards, and tests employed by the courts in dealing with employment cases. I think that the Court will have to create a clearer standard, and I think it would most likely to come up in the context of a Title VII case, involving the McDonnell Douglas framework, which itself has two divergent standards for both minority, and nonminority plaintiffs. This article was great in highlighting the confusion in a very interesting area of law.

Posted by: Richard M. 2L | Feb 14, 2014 4:22:17 PM

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