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Excerpted from: Chuck Henson, The Purposes of Title VII, 33 Notre Dame Journal of Law, Ethics & Public Policy 221 (2019) (433 Footnotes) (Full Document)

ChuckHensonSome things have an obvious and enduring purpose. The purpose of a hammer is to drive nails. The purpose of a saw is to cut wood. The purpose of nails is to fasten, for example, the freshly cut wood by being driven by a hammer. For other things, like Title VII of the Civil Rights Act of 1964 (“Act” or “1964 Act”), purpose seems mutable or hidden. For example, finishing the sentence today: “The purpose of Title VII is ...” presents a problem. It has presented the same problem since 1964. What Title VII does is not obvious gauged against the widely announced problem it was meant to solve: Black unemployment and underemployment. The obscurity of its purpose is troubling particularly if you are Black because Title VII has had no apparent effect on Black joblessness. Whether Blacks are equal citizens otherwise is widely questioned. What was Title VII meant to achieve for Black Americans? Beyond the symbolic act of stating the equality principle as the core of federal employment discrimination law, a reasonable answer to the question seems to be: Nothing. Nothing was done to cure the impact of race-based exclusion from educational and job opportunity because that cure required discrimination in favor of Blacks. The equality principle cannot both prohibit discrimination against Blacks and allow discrimination in favor of Blacks.

Early reflections on Title VII's purposes suggest that some expected it to achieve change on a scale commensurate with their beliefs about the significance of the Civil Rights Era and its centerpiece, the Civil Rights Act of 1964. Immediately after the Act's passage, it became clear that Title VII could not sustain the weight of expectations that the Civil Rights Era encouraged. Defeated expectations led to scholarly expressions of outrage and disappointment at Title VII's limitations. These expectations beg the question: What was the purpose of the 1964 Act? Exploring the reasons for the Act informs answers about what its seventh title was meant to achieve at the time. A primary cause of The Civil Rights Act of 1964 was the negative influence of the “Negro problem” on America's foreign policy goals. Although discrimination touched every part of life in every part of this country, it was only visible to domestic and international audiences because of how southern White people practiced discrimination. America could not, without great irony, sell itself in the early 1960s as the ideal of a free and democratic society while it tolerated, because of federalism, open apartheid south of the Mason-Dixon line. For largely foreign policy reasons, in 1963 it became urgent to create a symbol to show the world that the United States would live the creed it espoused: “[M]en are created equal” including Black Americans.

As a symbol, the 1964 Act served its foreign policy purpose. It is much easier to state (and there is strong support in the historical record) that a purpose of the Civil Rights Act of 1964 was to be an icon of American beliefs in the ideological combat for the hearts and minds of the non-European, newly emerging, non-white world that, at the time, occupied much of the attention of the cold warriors. The purpose of Title VII was the same as the 1964 Act, a tool in achieving America's foreign policy objectives. Historians write that the Act successfully served its purpose. It created an international belief that America was committed to the equality of all people, including its Black citizens. Having the Act was the success.

The Act, however, was also an expression of domestic policy. Like hammers, most of which are also designed to remove nails, the Act was also designed as a symbol to American citizens. The symbolism derives in part from finally achieving a federal law that breached that part of federalism that accommodated legalized inequality. Accomplishing the passage of the Civil Rights Act of 1964 was a big deal. The public policy of equality reached access to education, public accommodations, voting, and employment. According to the politicians the title related to employment--Title VII--was the most important part of the 1964 Act because none of the other rights it contained meant much without an income to give Blacks an opportunity to enjoy them. First class economic citizenship was the path that led to first class citizenship for Blacks.

The 1964 Act and Title VII, however, have always been contested symbols in this country. For some, passage of the law signified the achievement of equality. In the South most obviously, others saw the Act wrongfully taking away their rights to achieve an unwanted equality for someone else. Ironically, equality seemed to be a zero-sum concept. Some Americans believed that granting Blacks equality meant that Whites lost equality. In some measure, belief in the positive or negative powers of equality also indicates expectations about a level of social transformation. The Act and Title VII deal with equality on this level by primarily addressing conduct and prohibiting illegal conduct defined as “discrimination.” Equality was also a trap. It required everyone to be treated the same way. There could be no valid discrimination in favor of Blacks to overcome a history of separateness--an inequality in every sphere of American life that prepared people for successfully competing in the labor market. Title VII, for instance, was meant to provide equality through equal access to employment by commanding gatekeepers to ignore race as a job qualification. Equality required that outcome and nothing more.

Friends and foes of civil rights vetted the equal treatment aspect of equality openly. The discussion surrounded mainly what equality would mean for innocent White people. Would Blacks receive jobs because of their Blackness and Whites lose their jobs regardless of their longevity or skills? Equality of treatment of White workers and businesses so dominated the discussion that there was no open conversation about the responsibility of White people generally or the accountability of the nation for slavery and its aftermath, Jim Crow. Moreover, Black civil rights leadership purposefully did not demand a law that might, as a domestic Marshall Plan specifically for Blacks, suit a purpose consistent with solving the immediate problems.

Domestically, because of equality's limitations, some “militant” Blacks and “liberal” scholars and jurists found the equality that Title VII embodied wanting. As Professor Derrick Bell would write in 1977, “if the country was really committed to eradicating the social and economic burdens borne by the victims of employment discrimination, it would have fashioned a far more efficacious means of accomplishing this result.” By limiting its work to equal access, Title VII did not solve the immediate problem of giving Blacks jobs to fix the crisis of Black underemployment and unemployment. For these thinkers, discrimination under the Act needed to be different in scope than the simplistic idea that discrimination in job access and job success would come to a screeching halt on Title VII's effective date: July 2, 1965. The equality principle, which defined discrimination under the Act, did nothing to account for the historical effects of discrimination: the tragic under-preparedness of Blacks to compete for jobs in the modern employment marketplace. It also ignored the present impact of this basic problem on Blacks with jobs, but without training or access to training based on a history of segregation. In the first case, equal opportunity to compete helped no Blacks. In the second, Blacks were doomed to remain segregated and underemployed; a sacrifice on the altar of the equality principle for the handful of Blacks with the requisite job preparedness to compete on an equal footing with Whites after July 2, 1965.

The scholars, commentators, and jurists who were unsatisfied with this version of equality contested the equality purpose of Title VII. For this group Title VII did not live up to expectations because it did not solve the immediate problem or provide a solution that would have an effect in the immediate generation. Equality of access inadequately expressed the antidote to the reality of discrimination. The “Negro problem” needed a resolution based in equitable outcomes regardless of Title VII's legislative history or the political compromises contained in its words. Title VII should do more. In determining what that “more” was, scholars created a new concept of discrimination which some district court judges and some circuit courts adopted with gusto in the run-up to Griggs v. Duke Power Co. This group created the original “basic assumption” to make Title VII a vehicle for a form of equality that acknowledged how race discrimination worked. It assumed a base level of discrimination continued to exist regardless of present intent. It also assumed that if the zero-sum game of equality had a cost, the most innocent, the Black Americans, would not pay that cost. There was little fear of cost because these thinkers believed that their conceptualization of discrimination avoided any conflict with the equality principle. According to the original “basic assumption,” the history of racial discrimination was so pervasive that all White employers and unions were guilty of racism. All Black employees or applicants were innocent victims. Every adverse employment decision required, therefore, that the employer or union demonstrate through objective facts the absence of any taint of historical racism in a present adverse employment decision. This is the conceptualization of discrimination that the Court appeared to ratify in Griggs. For that reason, one early Title VII scholar claimed that no Title VII Supreme Court decision “before or since” Griggs has had its “explosive potential” on the level of Brown v. Board of Education. Griggs was the heart of Title VII, and its “elucidation” might “[occupy] us for the next four decades.” Something beyond merely merit-based equality became Title VII's purpose.

Through Griggs the Court gave the impression of planting a purpose in Title VII: “[T]o achieve equality of employment opportunities and remove barriers which have operated in the past in favor of an identifiable group of white employees over other employees.” To fulfill that outcome based purpose, no employment policies or tests, regardless of neutrality or intent, could withstand Title VII “if they operate to 'freeze’ the status quo of prior discriminatory employment practices.” There was at the time no designation of this new conceptualization of discrimination as “disparate impact” and no contrast drawn between disparate impact and disparate treatment. Accordingly, after Griggs, one of the primary shapers of the new conceptualization of discrimination, the Court of Appeals for Eighth Circuit, used its understanding of Griggs in rooting out discrimination in the yet undefined disparate treatment space. The Eighth Circuit applied the original basic assumption to the case of Percy Green against the McDonnell Douglas Corporation. In 1973, for the first time, the Supreme Court segregated what we now call disparate impact from disparate treatment in McDonnell Douglas Corp. v. Green. The Court rejected the Eighth Circuit's use of the new conceptualization of discrimination in disparate treatment cases. In doing so, the Court responded to a threat against the equality principle which, arguably, Griggs avoided, by reasserting the equality principle as the limit of discrimination in all other cases. The Court revised the Eighth Circuit's formulation of the “basic assumption” with a new version that eliminated the requirement that employers disprove their racism. The “basic assumption” 2.0 is the notorious McDonnell Douglas burden shifting analysis. Scholars today recognize that McDonnell Douglas was not the mere cautionary tale it appeared to be in the mid-1970s. Rather, modern scholars contest McDonnell Douglas as representing a deviation from and denial of Title VII's purpose.

This Article explores Title VII's contested purposes. Revealing Title VII's purposes requires connecting Griggs to McDonnell Douglas as a complete chronicle of the conflict between the equality principle and Black unemployment and under employment. I believe that the lingering and potent belief in Title VII stems from the success of Griggs in temporarily endowing Title VII with powers beyond the equality principle. This idealized version of Title VII remains to this day as a statement of what Title VII was meant to achieve despite what the Court did via McDonnell Douglas to set parameters around Griggs consistent with the equality principle and to formally restate the equality principle as Title VII's only purpose.

Starting with issue of purposes, the first two sections of this Article explore the limits of Title VII's purposes by contrasting the problem of Black unemployment with the choice the 88th Congress made to pursue inequality of opportunity rather than jobs for Black people. I argue that Title VII's purpose was forged from values of policy makers that were not focused exclusively or even primarily on solving the problem of Black unemployment. These policy makers were driven by American foreign policy goals, the urgency of doing something, and domestic political concerns. The equality principle, with its limits on completely equal treatment, allowed policy makers to fulfill their goals. In crafting the Act and Title VII, they conceptualized a simplistic form of discrimination and protected their constituents from Title VII's impact. The resulting law could do nothing about immediately employing large groups of Black Americans because it outlawed the compensatory elements needed to accomplish that goal.

The third section of this Article turns to why and how scholars and judges reconceptualized discrimination. Here, I argue that Title VII's obvious weaknesses created disappointment and disbelief. I will focus on certain primary weaknesses: Title VII's focus on only the “worst” forms of discrimination; Title VII's safe harbor for existing management and union prerogatives; and the fact that Title VII only applied to future discrimination. These primary weaknesses created a vacuum of unfulfilled expectations that Title VII would deal with the current problems of Black unemployment and underemployment and fix the problem of discriminatory hiring in present and the future. To fill this vacuum, scholars and judges reviewed Title VII and concluded that the 88th Congress must not have intended to do so little. These same scholars and judges determined, therefore, to give Title VII the purpose of eliminating more than the “worst” forms of discrimination by dealing with the reality of racism in the United States. They reconceptualized discrimination to capture discrimination in a space the equality principle did not cover. They theorized an absence of conflict between the equality principle and remedying the present impacts of historical discrimination at the junction of segregated unions and segregated employment. In the process they eliminated the safe harbors and time constraints Title VII contained and created the original “basic assumption” to empower Title VII: the explanation for any adverse employment action is race discrimination unless the employer proves otherwise with substantial objective evidence of job-relatedness.

In the fourth section of this Article I argue that the Eighth Circuit, as one of the key proponents and developers of the expanded definition of discrimination that led to Griggs, took Griggs as a direction to apply the original basic assumption to all employment discrimination cases. When the Eighth Circuit decided McDonnell Douglas, it did just that. The Court then took the opportunity with McDonnell Douglas to contest the purpose of Title VII given to it by the Eighth Circuit. Griggs was not a global repurposing of Title VII. By the mid-1970s the judiciary busily shrank Griggs to only certain types of jobs and certain types of tests. Meanwhile, as a reassertion and confirmation of the equality principle, McDonnell Douglas grew in prominence and set basic assumption 2.0 as the limit of the kind of discrimination Title VII prohibits: equality of access.

In the fifth and final section of this Article I consider the possibility of a further reconceptualization of discrimination. I urge the abandonment of McDonnell Douglas. It inappropriately displaces juries from deciding whether Black Americans are suffering from employment discrimination and relies on a fiction about how people make decisions about the qualities of other people out of date with modern science on how unconscious bias drives decisionmaking.

[. . .]

Title VII has served at least two related purposes; both entirely symbolic. For foreign audiences, it gave the United States a valid basis for asserting that America was the model for equality in a democratic society in the Cold War. Domestically, it created a similar symbol. Problematically, the equality principle, which sat at the center of the symbol, prohibited Title VII from having any greater purpose, such as a compensatory remedy that would deal with specifically training Blacks for jobs and giving Blacks jobs on a preferential basis as compensation for hundreds of years of inequality specific to the Black experience in this country. I hope that I have shown how, in the period of time before the Court drew a line between disparate impact and disparate treatment in McDonnell Douglas, it was possible to reconceptualize discrimination to briefly remedy the present impact of historical discrimination driven in large part by the Eighth Circuit's jurisprudence of doubt which led to Griggs and then moved beyond a small set of incumbent Black employees in racially stratified employment in southern businesses to all employment decisions impacting Blacks whether applicants or veteran employees. Although I am not sanguine about any positive developments in Title VII's purpose today, I hope the ideas I proposed may be useful in some subsequent reconceptualization of discrimination. As it stands, however, Title VII has failed to move beyond the symbolic and seems to be, ironically, the reason why Blacks continue to suffer from employment discrimination.

Trial Practice Professor of Law, Senior Fellow Center for the Study of Dispute Resolution, University of Missouri School of Law; Juris Doctor, Georgetown University Law Center, 1990; Bachelor of Arts, Yale University, 1987.