A Signal or a Silo? Title VII's Unexpected Hegemony
In A NATION OF WIDENING OPPORTUNITIES: THE CIVIL RIGHTS ACT AT 50 (Samuel Bagenstos and Ellen Katz eds., Michigan Publishing 2015).
20 Pages Posted: 5 Mar 2014 Last revised: 15 Sep 2016
Date Written: 2015
Title VII’s domination of employment discrimination law today was not inevitable. Indeed, when Title VII was initially enacted, its supporters viewed it as weak and flawed. They first sought to strengthen and improve the law by disseminating equal employment enforcement throughout the federal government. Only in the late 1970s did they instead favor consolidating enforcement under Title VII and its implementing agency, the Equal Employment Opportunity Commission. Yet to labor historians and legal scholars, Title VII’s triumphs came at a steep cost to unions. They write wistfully of an alternative regime that would have better harmonized antidiscrimination with labor law’s recognition of workers’ right to organize and bargain collectively with employers. This chapter explains how these impulses played out during Title VII’s uncertain first fifteen years as advocates, legislators, administrators, and workers pursued a more powerful Title VII on the one hand and one more harmonized with labor rights on the other. Empowering Title VII via dissemination proved more costly and less effective than its proponents expected; achieving a more harmonious regime was more complicated than is currently thought. This history provides a cautionary tale to those today who seek to reinvigorate labor rights by incorporating them into Title VII.
Keywords: Title VII, antidiscrimination, labor law, employment law, legal history, administrative law
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