CIVIL RIGHTS ACT OF 1964 78 Stat. 241

The Civil Rights Act of 1964 signified many changes. For john f. kennedy, prompted by southern resistance to desegregation orders and violent responses to peaceful civil rights protests, proposing the measure symbolized an aggressive new attitude toward racial discrimination. For lyndon johnson, who supported the act after Kennedy's assassination, it marked a turn away from southern regionalism and toward national leadership on civil rights matters. For Congress, the act ended a century of nonexistent or ineffective civil rights laws and was the first civil rights measure with respect to which the Senate invoked cloture. For blacks, the act was the first major legislative victory since Reconstruction and the most far-reaching civil rights measure in American history.

The act consists of eleven titles. Titles I and VIII reinforce voting rights provisions of the civil rights acts of 1957 and 1960 and limit the use of literacy tests to measure voter qualifications. (See also voting rights act of 1970.) Titles III and IV, in provisions deleted from the bills that became the 1957 and 1960 acts, authorize court actions by the attorney general to challenge segregated public facilities and schools. Title V amends provisions governing the civil rights commission. Title IX authorizes appeal from orders remanding to state courts civil rights cases that have been removed to federal court and authorizes the Attorney General to intervene in equal protection cases. Title X establishes a Community Relations Service to assist communities in resoving discrimination disputes. Title XI deals with miscellaneous matters. The most important parts of the law are Title II, forbidding discrimination in public accommodation; Title VI, forbidding discrimination in federally assisted programs; and Title VII, forbidding employment discrimination. In 1972, Congress extended Title VII's coverage to most government employees. It does not cover religious institutions.

Congress shaped the 1964 act with a keen awareness of previously declared constitutional limitations on antidiscrimination legislation. Title II's ban on discrimination in public accommodations and Title VII's ban on employment discrimination are limited to those entities whose operations affect interstate commerce. By limiting these provisions to establishments and employers affecting commerce, Congress sought to avoid the civil rights cases '(1883) determination that Congress lacks power under the fourteenth amendment to outlaw discrimination by private citizens, even in such a quasi-public area as that of public accommodations. Unlike its power to enforce the Fourteenth Amendment, Congress's commerce clause power is not limited to state action. In heart of atlanta motel, inc. v. united states, (1964) and katzenbach v. mcclung (1964) the Court upheld Title II as a valid exercise of the commerce power and the power to regulate interstate travel. Under the Court's subsequent decision in jones v. alfred h. mayer co. (1968), much of Title II and Title VII would be valid as congressional enforcement of the thirteenth amendment. Title VI's ban on discrimination in federally assisted programs was tied to another constitutional provision, Congress's taxing and spending power.

Judicial interpretation seems to have avoided another potential constitutional problem attending Title VII. Under a 1972 amendment to Title VII, employers must accommodate an employee's religious practices if the employer is able to do so without undue hardship. In Trans World Airlines, Inc. v. Hardison (1977), the Supreme Court held that the statute does not require an employer to bear more than a de minimis cost to accommodate an employee's religious preferences. If Title VII were interpreted to mandate substantial concessions to religiously based employee work preferences, it might raise serious problems under the first amendment ' s establishment of religion clause.

With the 1964 act's constitutional vulnerability minimized shortly after enactment, the way was clear for its development. Title II, banning racial discrimination in public accommodations, was the act's symbolic heart, providing immediate and highly visible evidence that blacks, as equal citizens, were entitled to equal treatment in the public life of the community. But Title II generated little litigation, for compliance was swift throughout the South once the principle of equal access was established. Equalizing employment opportunity was a goal that would take longer to accomplish. Thus in operation, Title VII has dwarfed all other titles combined, frequently generating a huge backlog of cases in the agency charged with Title VII's administration, the Equal Employment Opportunity Commission (EEOC), and leading to thousands of judicial decisions.

The proof necessary to establish a Title VII violation repeatedly occupies the Supreme Court. Two leading cases, McDonnell Douglas Corp. v. Green (1973) and griggs v. duke power co. (1971), approve alternative methods of proof in Title VII cases. Under McDonnell Douglas, a plaintiff alleging discrimination by an employer must, after exhausting the necessary remedies with the EEOC or a state antidiscrimination agency, show that the plaintiff applied and was rejected for a job for which the plaintiff was qualified, and that the employer continued to try to fill the position. An employer must then justify its actions. Under Griggs, in an extension of Title VII not necessarily contemplated by the 1964 Congress, proof that an employment selection criterion has a disproportionate adverse impact on minorities requires the employer to show that the selection standard is required by business necessity. After Griggs, statistically based Title VII cases, and threats to bring such cases, became a widespread method for pressuring employers to hire more minority and female workers. Few employers are both able to prove the business necessity of employment tests or other hiring criteria and willing to incur the expense of doing so.

The 1964 act, particularly Title VII, is not without its ironies. First, opponents of the act amended it to include sex discrimination in the hope that such an amendment would weaken the bill's chances for passage. But the bill passed with the additional ban that revolutionized at least the formal status of female workers. And in the case of sex discrimination, Title VII reaches beyond traditional refusals to hire or obvious pay disparities. When the Court held in General Electric Co. v. Gilbert (1976) that excluding pregnancy from a health plan does not constitute discrimination on the basis of sex, Congress amended Title VII to overturn the result. Los Angeles Department of Water and Power v. Manhart (1978) marks some sort of outer limit on Title VII's protection of female workers. The Court held Title VII to proscribe a requirement that females, who live longer than males and therefore can expect to receive greater total retirement benefits from a pension plan, contribute more to a pension than males contribute. In the case of sex, religion, or national origin discrimination, Title VII provides a defense if these factors constitute a bona fide occupational qualification, a defense sometimes difficult to separate from that of business necessity. The Supreme Court found in Dothard v. Rawlinson (1977) that a bona fide occupational qualification justifies requiring male prison guards for at least some classes of male prisoners.

Second, although the burger court generally has been viewed as conservative in the field of civil rights, Title VII owes much of its practical importance to Chief Justice warren e. burger's opinion for the Court in Griggs v. Duke Power Co. Griggs removed the requirement that discriminatory intent be an element of Title VII cases. This holding, in addition to its significance for Title VII, has been incorporated in other areas, including discrimination in housing under the civil rights act of 1968. New York City Transit Authority v. Beazer (1979), in which the Court refused to invalidate an employment selection standard (exclusion of drug users) with disparate impact on minorities, may signify some retrenchment from the full force of the Griggs principle. And in International Brotherhood of Teamsters v. United States (1977), the Court refused to extend Griggs to invalidate seniority systems that predate Title VII. But the Court never has directly questioned Griggs. In united steelworkers of america v. weber (1979), the Burger Court concluded that Title VII permitted at least some private affirmative action employment programs.

Although Title VII deservedly receives most of the attention paid to the 1964 act, Title VI is also an important antidiscrimination law. In regents of the university of california v. bakke (1978) it provided the setting for the Court's first important pronouncement on affirmative action programs. Many subsequent antidiscrimination laws, such as Title IX of the education amendment of 1972, the age discrimination act of 1975, and the rehabilitation act of 1973 are modeled after Title VI. Title VI is the principal antidiscrimination measure for programs receiving federal funds that are not affected by other antidiscrimination measures. In the case of public institutions, however, there is much overlap between Title VI's prohibitions and those contained in the Fourteenth Amendment. The Supreme Court has been ambiguous in describing the relationship between the two. In Bakke, a majority of Justices suggested that Title VI and the Constitution are coterminous, but it did not purport to overturn the Court's earlier holding in lau v. nichols (1974), widely read as extending Title VI to cases of discrimination not banned by the Constitution.

The contributions of the 1964 act to racial equality defy precise measurement, but surely they have been weighty. Beyond the tangible changes the act brought to the public life of southern communities and to the entire American workplace lie enormous changes in attitudes and everyday personal relations. Those who believe that "you can't legislate morality" would do well to ponder the lessons of the Civil Rights Act of 1964.

Theodore Eisenberg
(1986)

(see also: Firefighters Local Union No. 1784 v. Stotts.)

Bibliography

Dorsen, Norman; Bender, Paul; Neuborne, Burt; and Law, Sylvia 1979 Emerson, Haber and Dorsen's Political and Civil Rights in the United States, 4th ed. Vol. II:581–608, 902–1062, 1172–1220. Boston: Little, Brown.

Larson, Arthur and Larson, Lex K. 1981 Employment Discrimination. New York: Matthew Bender.

Schlei, Barbara L. and Grossman, Paul 1976 Employment Discrimination Law. Washington, D.C.: Bureau of National Affairs.

Sullivan, Charles A.; Zimmer, Michael J.; and Richards, Richard F. 1980 Federal Statutory Law of Employment Discrimination. Indianapolis: Bobbs-Merrill.