Posted by David Bernstein: Justice Ginsburg and the "Purpose" of Title VII: http://volokh.com/archives/archive_2007_05_27-2007_06_02.shtml#1180486427
Dissenting today in [1]Ledbetter v. Goodyear Tire & Rubber Co., Justice Ginsburg writes, "This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute�s broad remedial purpose." The history of Title VII and its "purpose" is, at best, much more ambiguous than that. Title VII was modeled after state antidiscrimination laws enforced by Fair Employment Practice Commissions, which spread throughout the North and Midwest after WWII. The FEPCs focused on mediation between the aggrieved party and the allegedly discriminating employer, often lacked much in the way of enforcement power, and were widely perceived as largely ineffectual. Title VII built on various aspects of the FEPCs; the requirement of getting EEOC approval to file a suit, for example, built on the FEPC's agency-centered procedures. Civil rights advocates did win the right to sue with agency permission, but with damage caps and time limits. At the time of its passage, then, many thought that Title VII would turn out to be not much more consequential than the FEPCs had been. In fact, my impression is that the public accommodations provision of the 1964 Civil Rights Act was far more controversial than was Title VII, especially when advocates for the latter promised it would not interfere with union seniority schemes or mandate "reverse discrimination." Much to most people's surprise, however, civil rights advocates within the Justice Department, however, turned Title VII into a powerful tool, by bringing large-scale class actions against employers, often on a disparate impact theory that was very far from the minds of Congress in 1964. Moreover, while at the time Title VII was thought to primarily be concerned with discrimination in hiring, plaintiffs' attorneys eventually realized there was more money, and a greater possibility of success, in filing cases involving discrimination in firing. All of this was nudged along by sympathetic courts, who consistently proclaimed, quite falsely, that Congress had intended Title VII to be a very broad, vigorous, remedial statute. Whatever one thinks of this outcome, there's no excuse for distorting the history of the statute. In fairness to Justice Ginsburg, however, Congress did endorse many of the innovations initiated by Justice and plaintiffs' attorneys in later legislation, such as the Civil Rights Act of 1991. References 1. http://www.supremecourtus.gov/opinions/06pdf/05-1074.pdf
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