To what degree did the emergence of a large union movement in the middle decades of the 20th century advance the civil rights and general economic well-being of African-Americans and Latina/os during those same decades. To what extent did these new unions

Labor: Studies in Working-Class History of the Americas, Volume 11, Issue 3

DOI 10.1215/15476715-2687664 © 2014 by Labor and Working-Class History Association

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Title VII in Economic-Historical Perspective

Gavin Wright

The Civil Rights Act of 1964 fully deserves its status as a watershed achievement in American political and social history, and Title VII merits full marks as a land- mark in national economic history. Enforcement of Title VII generated major eco- nomic gains for African Americans, advances that for the most part have been sus- tained over time. In drawing lessons from this historical record, however, it must be recognized that the successes reflected a specific set of channels in a particular his- torical context. The primary driving forces were grass-roots mobilization for racial justice and pressure from all three branches of the federal government. Most of the gains were realized in the South, reflecting the low starting point in that region’s transition from decades of Jim Crow segregation as well as the organizational cohe- sion descended from the civil rights movement. It is far from clear that the same or similar approaches can be effective in confronting racial and class inequalities in the twenty-first century.

The role of political mobilization was important from the beginning. Early drafts of the Kennedy administration’s civil rights bill did not even include a fair employment section, perhaps because the issue was already being addressed by the President’s Commission on Equal Employment Opportunity (overseeing compliance by federal contractors under John F. Kennedy’s 1961 executive order) and by voluntary efforts under the Plans for Progress program launched in the same year. This omis- sion was reversed in response to vigorous lobbying by several groups allied in the civil rights coalition. These advocates well understood that progress under existing pro- grams was painfully slow at best. Although the resulting act prohibited employment discrimination on the basis of race or color (as well as religion, sex, and national ori- gin), many contemporary observers expected little of significance from Title VII. Not only did the text contain glaring loopholes (such as protection for “bona fide” seniority or merit systems), but the newly created Equal Employment Opportunity Commis- sion (EEOC) had limited powers of enforcement. Because the EEOC could neither issue “cease-and-desist” orders nor initiate lawsuits, it was described by discrimination

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expert Michael Sovern in 1966 as a “poor, enfeebled thing . . . [with] the power to con- ciliate but not to compel.”1

Nonetheless, passage of Title VII had a galvanizing effect on black job seek- ers. Emboldened by a sense of legal standing (as well as strength in numbers), black men and women began to apply for jobs in the southern textiles industry from which they had long been excluded. The EEOC actively encouraged this assertiveness. Although textile firms initially resisted and dragged their feet, within a few years they came to see the advantages of an expanded labor supply. The New York Times reported in 1969: “Virtually all of the large [textile] companies have begun to preach a doctrine of equal, color-blind employment.”2

Outside of textiles, progress was slower and more litigious, as workers invoked Title VII to challenge segregated “lines of progression.” In the higher paying paper industry, many applications for job transfers were filed almost immediately after the act came into effect on July 2, 1965. When the transfers were not approved, workers sued, supported by the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund. In a landmark 1968 case, the US Justice Department sued Crown-Zellerbach, a major paper employer based in Bogalusa, Louisiana, along with its leading union. The outcome was a court determination that even a super- ficially neutral seniority system could be illegal if it hindered rectification of long- standing barriers to black advancement opportunities. This decision led in turn to the Jackson Memorandum of 1968, negotiated by the Office of Federal Contract Compli- ance, in which International Paper and its southern unions accepted the principle that blacks could advance to their “rightful place” on the companywide seniority ladder.3

Another landmark decision was Griggs v. Duke Power (1971), which estab- lished the “disparate impact” test for discrimination in promotion criteria. On March 1, 1966, fourteen janitors from the all-black Labor Department at Duke Power’s Dan River plant signed a letter of complaint about the absence of promotion opportuni- ties. The letter requested “promotion [for janitors] when vacancies occur” into any of four specified job classifications. The instigator, a former tobacco sharecropper named Willie Boyd, had been active in the NAACP for years and closely followed passage of Title VII. The company informed the men that standards were being raised and that they were welcome to take the test required for promotion. The group then for- warded their complaint to the EEOC, which tried to resolve the matter through con- ciliation. When this effort also proved fruitless, the workers turned to the NAACP Legal Defense Fund, which assisted them in filing suit on September 9, 1966. After setbacks in appeals courts, the Supreme Court ruled unanimously — five years after the initial complaint — that tests having a disparate impact on minorities could be

1. Timothy J. Minchin and John A. Salmond, After the Dream: Black and White Southerners since 1965 (Lexington: University Press of Kentucky, 2011), 75.

2. Roy Reed, “Industry in South Was Negro Labor,” New York Times, May 19, 1969. 3. Timothy J. Minchin, The Color of Work: The Struggle for Civil Rights in the Southern Paper Industry,

1945–1980 (Chapel Hill: University of North Carolina Press, 2001).

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invalid regardless of intent, unless shown to be demonstrable measures of job perfor- mance. As a result of the decision, the high school graduates in Duke’s Labor Depart- ment were promoted, and education and testing requirements were waived for the others. Willie Boyd ultimately became the first black supervisor over white men at the Dan River plant.4

More fundamentally, Griggs and related rulings gave new credibility to EEOC guidelines and impelled a much more thoroughgoing change than firms had antici- pated. Veteran labor lawyer and legal scholar Alfred W. Blumrosen writes: “Griggs infused Title VII with extraordinary power. . . . Without Griggs, the statute might have warranted little more than a text note in law case courts.” Citations to the case in federal courts rose steadily through the 1970s, reaching a peak in 1980 before declin- ing in the next decade. The Griggs principle went well beyond what could have been predicted in 1964, but as Blumrosen concludes: “There was no ‘plain meaning’ to Title VII.”5 It acquired specific meaning only through the ongoing efforts of work- ers, activists, and lawyers, supported by the courts. Congress added to the impact by passing the Equal Employment Opportunity Act of 1972, finally giving litigation power to the EEOC and extending Title VII coverage to state and local governments.

Did this extended struggle to make Title VII operational have any signifi- cant effect in the real world? Emphatically yes. Figure 1 displays the black share of white-collar and blue-collar occupations by region, as compiled from EEO-1 reports from large employers. The picture clearly shows a sharp upward surge in black occu- pational status after 1965, in all regions but especially in the South. Prior to the act, black occupational shares were increasing slowly in the North and West (from 1950 and perhaps earlier, according to US Census Bureau figures) but stagnant or declin- ing within the South. Thus the strong positive growth in southern states after 1965 seems clearly attributable to Title VII.

Most early gains were in southern blue-collar occupations. The South was a tempting target for Title VII, because discrimination was perpetuated there through explicit segregation systems. Most of these were dismantled between 1965 and 1980, with significant benefits for black southerners. James Heckman and his collaborators show that relative black income gains during this era were overwhelmingly southern, reflecting primarily a shift from “laborer” into higher-paying “operative” and “crafts- man” positions.6 Advances were not limited to the South, but elsewhere progress slowed to a crawl after 1980, roughly coincident with the drastic cutbacks in funding

4. Robert Samuel Smith, Labor and Civil Rights: Griggs versus Duke Power and the Struggle for Equal Employment Opportunity (Baton Rouge: Louisiana State University Press, 2008).

5. Alfred W. Blumrosen, “The Legacy of Griggs: Social Progress and Subjective Judgments,” Chicago- Kent Law Review 63 (1987): 1–3; and Modern Law: The Law Transmission System and Equal Employment Opportunity (Madison: University of Wisconsin Press, 1993), 337.

6. Richard J. Butler, James Heckman, and Brook Payner, “The Impact of the Economy and the State on the Economic Status of Blacks,” in Markets in History, ed. David Galenson (Cambridge: Cambridge Uni- versity Press, 1989); and John J. Donohue III and James Heckman, “Continuous versus Episodic Change: The Impact of Civil Rights Policy on the Economic Status of Blacks,” Journal of Economic Literature 29 (1991): 1603–43.

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and staffing at the EEOC and the Office of Federal Contract Compliance Programs at that time.

What is perhaps most surprising is that growth in the black share of white-collar employment continued long after the post-1980 political transition, but almost exclusively in the South. We do not yet know all of the reasons for this pattern, but the list of likely contributing factors includes long-term gains in black educational attainment, economic growth in southern cities with large black populations and political representation, “networks effects” associated with historically black southern communities, and the impact of black representation in corporate management on recruitment and retention of new black employees.7 We can say with more confidence that these gains were not driven by increasingly forceful applications of Title VII to private employers in the South, because, with rare though important exceptions (such as Texaco and Coca-Cola), racial employment discrimination cases sharply declined relative to other types of employment issues as of the 1980s.8

7. Zoë Cullen and I are currently engaged in a study addressing this question, drawing on EEOC data. 8. John J. Donohue III and Peter Siegleman, “The Changing Nature of Employment Litigation,”

Stanford Law Review 43 (1991): 983–1083; and “The Evolution of Employment Discrimination Law in the 1990s,” in Handbook of Employment Discrimination Research, ed. Laura Beth Nielsen and Robert L. Nelson (Dordrecht, the Netherlands: Springer 2005).

Figure 1. Black share of white-collar and blue-collar occupations, south and elsewhere, 1966–2009. Source: EEOC EEO-1 reports. Observations for 1966–70 are taken from the annual EEOC publication Job Patterns for Minorities and Women in Private Industry. Blue-collar occupations include both operative and skilled crafts, excluding laborer and service jobs.

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What then are we to make of the legacy and current status of Title VII in light of this brief historical survey? The legislation was clearly prompted by the race issue, and in this realm, it has been a great success, generating lasting gains for Afri- can Americans through major reductions in racial exclusions and inequities, with few signs of significant inefficiencies in the process. But even during the era of its great- est achievements, and certainly since then, Title VII has been soaked in paradox: it prohibits discrimination on the basis of race or color, yet progress has not come pri- marily from ignoring race but by taking race systematically into account. Title VII’s main accomplishments have occurred in a region where racial consciousness remains strong. The uneasy partnership between universalist rhetoric and race-conscious mobilization has been historically productive, but it is difficult to see this same for- mula as the major vehicle in current and future struggles against economic inequal- ity. Racial prejudice and subtler forms of discrimination no doubt continue, but they have been overwhelmed by structural changes in the US labor market that could not have been foreseen in 1964.

The principles of Title VII are still important and should clearly be retained. They were effectively extended to women in the original legislation and by subse- quent court ruling to sexual harassment. Later legislation extended protected status to age, pregnancy, and disabilities, and we may soon see a further extension to sexual orientation. Individuals in all of these categories deserve protection against discrim- ination in employment and on the job. But with a majority of the labor force now in protected status, Title VII can hardly serve as the basis for the racial, ethnic, and gender- based coalition that our times require. Antidiscrimination laws will not raise the living standards or life prospects of large numbers of low-income Americans, as they did during the civil rights era.

It should not be discouraging to acknowledge that reform strategies that were effective in one historical era do not carry over readily to another time. We can still look to history for inspiration. In building coalitions across racial, ethnic, and gen- der lines, we can hardly do better than to draw upon the inclusive values of the civil rights movement.

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