Politics, the civil rights movement, and the Kennedy White House

1. THE LEGISLATIVE HISTORY OF TITLE VII OF THE 1964 CIVIL RIGHTS ACTFrancis J. Vaas VII Boston College Industrial & Commercial Law Rev. 431 (1966) Establishing an immediate historical context for Title VII, as civil rights legislation, Vaas notes, in 1966, that, since 1941, hundreds of Bills proposing to prohibit discrimination in employment on the basis of race, color, creed, national origin, religion, or citizenship, died in legislative committee or on the House or Senate floor.

2. Politics, the civil rights movement, and the Kennedy White House • Vaas recalls that – despite brief advances in civil rights in 1957, including the creation of a federal Civil Rights Commission – the Kennedy Administration did not originally consider civil rights an urgent issue, or propose sweeping federal civil rights legislation; He then notes that President John F. Kennedy did propose federal employment discrimination legislation in June, 1963, in his second message on civil rights; • Accounts of President Kennedy’s reluctant consideration of the civil rights issues facing the country and his gradual awareness of the need for federal legislation are well documented and are essential reading for students expecting to practice in the field; • In 1961-63, the emerging national direct action campaign protesting discrimination in education, employment, and public accommodations and transportation – and violent Southern resistance to desegregation – was a singular force in persuading the Kennedy White House that civil rights legislation, including fair employment practices legislation, was urgently needed.

3. HR 7152 (HR 405) & the 88th Congress • The White House bill (co-sponsored by Rep. James Roosevelt of California), though comprehensive, did not originally propose compulsory fair employment practices provisions for private employers, but did propose the creation of the Equal Employment Opportunity Commission – to prevent discrimination by federal contractors and subcontractors; • In committee, the proposal of a bifurcated EEOC with both investigatory and adjudicatory powers was opposed by proposals that rejected the grant of direct enforcement powers in favor of the limited authority to seek judicial intervention in cases where conciliation of disputes failed; • Early Judiciary Committee debate also focused on the apparent concern that the new law should not unduly interfere with the internal affairs or freedom of employers or unions, and more specifically, should not establish any affirmative duty to correct the effects of past discrimination by requiring the hiring of minorities generally, to achieve racial balance in the workforce. The “correction of discriminatory practices” was given narrow meaning, and legislative intent was simply to permit previously deselected minorities to seek employment based on their qualifications, and without regard to artificial considerations of race (etc.)

4. House Amendments • Vaas notes, inter alia, the significance of House Amendments on the following subjects: • The clarification that certain discrimination, e.g., the consideration of national origin, or religion could, under certain circumstances, be bona fide, • The protection of employer action, unless based on the consideration of a protected trait; • The addition of “sex” as a protected trait (by vote of 168 – 133), notwithstanding its proposal as an act of political cajolery by anti-civil rights proponents in the Senate; • The anti-Communist provision.

5. The Senate debate • Vaas describes the Senate debate in 3 phases: • The 14 day debate whether to have HR 7152 considered, noting the leadership of Senator Mike Mansfield of Montana and the opposition of Senator James Eastland of Mississippi (Although he had been a supporter of Kennedy’s candidacy, Eastland’s opposition was not based on traditional arguments about federal vs. state interests – but rather was motivated by his support of segregation per se, and white supremacy); • The final 67-17 vote to consider the Bill, despite the concerns of Senators Morse and Dirksen that it should be referred to committee to correct defects in the House version; • The formal Senate debate, and the leadership of Senators Hubert Humphrey (Senate Majority Whip) and Senator Thomas Kuchel of California (Minority Whip) – both brilliant and courageous defenders of civil rights – outside the floor debate, to reach consensus which would secure the passage of the Bill; and the eventual proposal of Amendment 1052; • Cloture on June 8, 1964, and passage of the Bill in the Senate on June 19 by a vote of 73-27 – all Senators being present.

6. Definitions, exemptions & unfair employment practices • Vaas notes the seminal provisions of Title VII, as sent to President Johnson: • The definition of covered employers, labor organizations, and protected employees, and excluding “Indian tribes” from the definition of employer; • The “religion” exemption; • The fundamental prohibition of discrimination on the basis of race, national origin, color, sex, religion, by covered employers, or labor organizations (Note Vaas’ early mention of the issue of causation, i.e., “significant factor” and “mixed motive” approaches to the analytical paradigm in Title VII cases).

7. Noteworthy limitations on the scope of Title VII as proposed • That religion, sex, or national origin may, under certain circumstances, be a BFOQ; • The protection of governmental security requirements, as a precondition to certain employment; • The protection of bona fide seniority systems which influence wages, or other terms or conditions of employment – where not employed for the purpose of discriminating on the basis of race, etc.; • The “limited” protection of an “employer’s” use of “professionally developed” ability tests; • The prohibition of “racial balancing” (Note Vaas’ concern whether an existing "imbalance" could be considered in determining motivation for the overt act of denying employment to a member of a minority group, and his related question whether Title VII would permit claims of “reverse discrimination”).

8. The EEOC • Vaas emphasizes the legislated limitations on the newly established Commission’s power to: • Establish offices (The structure of EEOC remains dynamic), and require employer record-keeping; • Engage in litigation to directly enforce the statute (Limiting the Agency’s basic role to private, confidential efforts at conciliation of disputes, but allowing EEOC to refer “pattern or practice” cases to the Attorney General and to assist the USOAG in litigation).

9. Monetary remedies & Attorneys fees • Note the original vesting of subject matter jurisdiction in the federal courts, and the exclusive provision of equitable remedies, including back pay; • Note the provision for the judicial award of attorneys’ fees to a prevailing plaintiff, in comparison to the private tort system’s compensation scheme for attorneys.

10. Conclusion • Vaas’ concluding commentary presages the Supreme Court’s struggle, over the next four decades to define “discrimination” and establish the boundaries of Title VII’s application; • Although Title VII, and the other provisions of the 1964 Civil Rights Act, are the product of a courageous leadership on the part of the Executive and Congress, the inadequacies of the legislative process have provided students of this subject with an opportunity to engage in a critical study of how the Supreme Court works, and whether it has been efficient and effective, in enforcing a nondiscrimination principle fashioned by a debate which was mightily influenced by geo-cultural factors.