Table of Contents

A Signal or a Silo? Title VII's Unexpected Hegemony

Sophia Z. Lee, University of Pennsylvania Law School

Justice Ginsburg's Umbrella

Ellen D. Katz, University of Michigan Law School

Labor Unions and Title VII: A Bit-Player at the Creation Looks Back

Theodore J. St. Antoine, University of Michigan Law School

Taking Seriously Title VII's 'Floor, Not a Ceiling' Invitation

Craig Gurian, Anti-Discrimination Center, Remapping Debate, Fordham Law School

Discriminatory Animus

Cary Franklin, University of Texas School of Law

Toward a Jurisprudence of the Civil Rights Acts

Robin L. West, Georgetown University Law Center

The Diversity Feedback Loop

Devon W. Carbado, University of California, Los Angeles (UCLA) - School of Law
Patrick S. Shin, Suffolk University Law School
G. Mitu Gulati, Duke University School of Law


A NATION OF WIDENING OPPORTUNITIES: THE CIVIL RIGHTS ACT AT FIFTY
UNIVERSITY OF MICHIGAN LAW SCHOOL, 2013

"A Signal or a Silo? Title VII's Unexpected Hegemony" Free Download
In A NATION OF WIDENING OPPORTUNITIES: THE CIVIL RIGHTS ACT AT 50 (Samuel Bagenstos and Ellen Katz eds., Michigan Publishing 2015).
U of Penn Law School, Public Law Research Paper No. 14-20

SOPHIA Z. LEE, University of Pennsylvania Law School
Email:

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.

"Justice Ginsburg's Umbrella" Free Download
A Nation of Widening Opportunities? The Civil Rights Act at Fifty, Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press, 2014
U of Michigan Public Law Research Paper No. 389

ELLEN D. KATZ, University of Michigan Law School
Email:

This Essay relies on an analogy pressed in the dissenting opinion in Shelby County v. Holder to describe an increasingly prominent conception of federal anti-discrimination law. It is a conception that sees the existing regime to be a source of unjust enrichment to its beneficiaries, one that does not simply make victims of undeniable discrimination whole, but instead places a host of interested parties, victims included, in a decidedly better position than they would have been had the discrimination never occurred. Notably, this conception of federal anti-discrimination law does not deny the persistence of discrimination, including discrimination that is unconstitutional or otherwise invidious. The more pressing worry, however, is that the regime today does more harm than the discrimination it presently addresses.

"Labor Unions and Title VII: A Bit-Player at the Creation Looks Back" Free Download
In A Nation of Widening Opportunities? The Civil Rights Act at Fifty, edited by S. R. Bagenstos and E. Katz. University of Michigan Press, 2014, Forthcoming
U of Michigan Public Law Research Paper No. 388

THEODORE J. ST. ANTOINE, University of Michigan Law School
Email:

The author, an AFL-CIO lawyer when the 1964 Civil Rights Act was passed, discusses varying views of the role of organized labor in securing the inclusion of Title VII (EEO) in the Act. The “disparate impact? theory of discrimination and the treatment of seniority and affirmative action under Title VII are also analyzed.

"Taking Seriously Title VII's 'Floor, Not a Ceiling' Invitation" Free Download
Taking Seriously Title Vii's "Floor, Not a Ceiling" Invitation, in A Nation of Widening Opportunities? The Civil Rights Act at Fifty (Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press 2014), Forthcoming

CRAIG GURIAN, Anti-Discrimination Center, Remapping Debate, Fordham Law School
Email:

Civil rights advocates have been insufficiently attentive to the promise of creative state and local legislating as the means by which to counteract the erosion of federal civil rights protections. The promise has not only a defensive component (trying to hold on to doctrine that the Supreme Court has been abandoning) but an offensive one as well (introducing more robust substantive and procedural provisions than Title VII has ever had). This paper examines a so-far successful attempt in New York City to implement a vision that proposed to "meld the broadest vision of social justice with the strongest law enforcement deterrent" (one that, for example, has removed the "severe or pervasive" hurdle to the prosecution of sexual harassment lawsuits). The paper, while recognizing that state and local action is no cure-all, goes on to identify several doctrinal areas that are particularly ripe for state and local legislative innovation.

"Discriminatory Animus" Free Download
A Nation of Widening Opportunities? The Civil Rights Act at Fifty (Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press 2014)
U of Texas Law, Public Law Research Paper No. 554

CARY FRANKLIN, University of Texas School of Law
Email:

This chapter, in the forthcoming book A Nation of Widening Opportunities? The Civil Rights Act at Fifty (Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press 2014) explores the shifting meanings of "animus" in Title VII and their implications for how we understand the project of antidiscrimination law.

"Toward a Jurisprudence of the Civil Rights Acts" Free Download
in A NATION OF WIDENING OPPORTUNITIES? THE CIVIL RIGHTS ACT AT FIFTY, (Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press 2014 Forthcoming)
Georgetown Law Center Research Paper Series No. 1299

ROBIN L. WEST, Georgetown University Law Center
Email:

What is the nature of the “rights,? jurisprudentially, that the 1964 Civil Rights Act legally prescribed? And, more generally, what is a “civil right?? Today, lawyers tend to think of civil rights and particularly those that originated in the 1964 Act, as antidiscrimination rights: our “civil rights,? on this understanding, are our rights not to be discriminated against, by employers, schools, landlords, property vendors, hoteliers, restaurant owners, and providers of public transportation, no less than by states and state actors, on the basis of race, gender, ethnicity, age, sexuality or disability. Contemporary civil rights scholarship overwhelmingly reflects the same conception: our civil rights are quasi-constitutional rights to be free of discrimination in the private as well as public world. But this conventional lawyerly understanding -– basically, that “civil rights? are “antidiscrimination rights? -– is clearly inadequate, certainly with respect to civil rights generally but also, and more tellingly, even with respect to the rights created and then protected by the ‘64 Act itself.

First, on the general point: some of the “civil rights? sought or held across our history have not been antidiscrimination rights of any sort at all: labor rights, welfare rights, free speech rights, and the constitutional rights of criminal defendants have all, at various times, been championed as “civil rights,? and these rights are neither logically nor jurisprudentially tied to any conception of antidiscrimination. But furthermore, even the “civil rights? which are defined and then protected against discrimination by the 1964 Civil Rights Act, as well as by various Civil Rights Acts both before and subsequent to it, are not, in circular fashion, simply our rights not to be discriminated against on the basis of impermissible characteristics. Rather, the “civil rights? of which we cannot be discriminatorily deprived, whether originating in the ‘64 Act or elsewhere, are, after all, rights to something: a right to vote, or to physical security, or to enter contracts, or to own, buy or sell property, or to legal recourse in the aftermath of a wrong committed against us, or to write a will, or to be considered for or to hold down a job and to be paid fairly for our labor, or to the use of a restaurant or a hotel or a city bus, or to a public education, or to marry whom we love. And, these are just some of the public goods that have been recognized at various times as “civil rights,? of which we cannot be deprived by discriminatory action.

Even if just that much is right, then the “civil right? protected by all of our Civil Rights Acts, including the ‘64 one, is considerably more complex, jurisprudentially, than the conventionally legalistic and formulaic equation of “civil rights? with “antidiscrimination rights? suggests. Minimally, the “civil right? recognized or protected by the various Civil Rights Acts is almost invariably a multilayered right, or a “right to a right?: it is a right to not be discriminatorily deprived of some underlying right. Only the first right in that phrase “a right to a right? is the antidiscrimination right. The second “right,? though, is the underlying civil right of which we cannot be discriminatorily deprived, and it is both itself complex, and highly variable: it might be a common law right, such as a right to enter contracts or sell property, or a statutory right, such as a right to vote, or simply a right to a social or public good, such as employment or educational opportunities, or the protection of a trustworthy police force against private violence. And, while we have generated a library of writing, and jurisprudence, and judicial opinions, on the nature of the first right in that phrase -– the right not to be deprived of various rights, on the basis of race, sex, and so forth -– we have devoted much less to the second: the nature of the underlying right of which we cannot be deprived. So, what is the jurisprudential nature of that right? What is a “civil right,? jurisprudentially, both with respect to the rights protected against discrimination by the Civil Rights Act of 1964, and more broadly? Again, and more generally, what is a “civil right??

"The Diversity Feedback Loop" Free Download
A Nation of Widening Opportunities? The Civil Rights Act at Fifty (Samuel Bagenstos and Ellen Katz, eds., forthcoming University of Michigan Press 2014)
UCLA School of Law Research Paper No. 13-38
Suffolk University Law School Research Paper No. 13-37

DEVON W. CARBADO, University of California, Los Angeles (UCLA) - School of Law
Email:
PATRICK S. SHIN, Suffolk University Law School
Email:
G. MITU GULATI, Duke University School of Law
Email:

At some point in the near future, the Supreme Court will weigh in on the permissible scope of affirmative action to increase workplace diversity. Undoubtedly, many scholars will argue that if affirmative action is good for colleges and universities, it is good for workplaces as well. One cannot assess whether this “transplant? argument is right without understanding the ways in which diversity initiatives at colleges and universities interact with diversity initiatives at work. The university and the workplace are not separate and distinct institutional settings in which diversity is or is not achieved. They are part of an interconnected system. We call this system the “Diversity Loop,? and it is constituted by three central features: a supply effect (the diversity the university “supplies? to the labor market), a reiteration effect (the extent to which that diversity can be “reiterated? into the workplace), and a demand effect (the influence the employer’s “demand? for particular kinds of employees has on the university’s admissions criteria). The existence of this Diversity Loop is relevant to the normative question of whether it is desirable to promote affirmative action in both the workplace and the university settings and to the doctrinal question of whether the legality of affirmative action in the context of the workplace should be coextensive with the legality of affirmative action in the context of the university.

^top

About this eJournal

On October 11, 2013, a diverse group of civil rights scholars met at the University of Michigan Law School in Ann Arbor to assess the interpretation, development, and administration of civil rights law in the five decades since President Lyndon Baines Johnson signed the Civil Rights Act of 1964. Conference participants examined a host of emerging civil rights issues using doctrinal, jurisprudential, historical, sociological, policy-analytic, and other perspectives. Topics discussed included the theoretical foundations of civil rights laws; the social-movement contestation that led to the Civil Rights Act; the interaction between the Civil Rights Act and the social-welfare programs of the Great Society; the role, function, and constitutionality of affirmative action; the meaning of discriminatory intent; the application of civil rights principles to sexual orientation discrimination; the current judicial response to civil rights cases; the role of administrative agencies in enforcing civil rights; other countries' approaches to antidiscrimination laws; and the future direction of civil rights law and policy. This eJournal provides a data warehouse for all abstracts and papers presented at the conference. Abstracts of the papers will also be distributed in subject-specific eJournals within the LSN.

Submissions

To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submissions button at top of page.

Distribution Services

If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com

Distributed by

Legal Scholarship Network (LSN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)

Directors

LSN CONFERENCES & MEETINGS

BERNARD S. BLACK
Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

Please contact us at the above addresses with your comments, questions or suggestions for LSN-CfMt.