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The Leadership Conference on Civil and Human Rights

The Nation's Premier Civil and Human Rights Coalition
The Leadership Conference on Civil and Human Rights & The Leadership Conference Education Fund
The Nation's Premier Civil and Human Rights Coalition
Long Road to Justice: The Civil Rights Division at 50

Employment Discrimination

We...are not interested in Negroes getting more work, Negroes have too much work already. What we want Negroes to get is less work and more wages.

- A. Philip Randolph, "Our Reason for Being." March 1919 28

Born in Karachi, Pakistan, but living in the United States since he was one year old, New Yorker Mohammad Salman Hamdani was equally proud of his Muslim heritage and American citizenship. On September 11, 2001, it was believed that the 23-year-old part-time ambulance driver and police cadet heard about the terrorist attack on his way to work and rushed over to help. Unfortunately, his whereabouts that day remained unconfirmed until 2002 when his remains were positively identified at the World Trade Center site. "A compassionate, warm-hearted young man," says Salman Hamdani's mother, his "greatest desire in life was to help others." 29

The terrorist attack on September 11, 2001, was a singular act of horror not seen on U.S. soil since Pearl Harbor. The quick response of New York City firefighters, law enforcement officers, and medical workers like Mohammad Salman Hamdani to the tragedy made them heroes. These officers - men and women of all races and ethnicities - are the best that New York has to offer. They risked their lives for others and did so with honor.

Fifty years ago, many of these local heroes would not have had the opportunity to serve their city and their country as first responders. The doors to professions such as law enforcement and firefighting were all but locked in 1957 to people of color. Fire stations were notoriously segregated in the days preceding the civil rights movement. In San Francisco, for instance, there were no black firefighters at all before 1955 and women were not allowed to apply before 1976. 30

Too often, in the 1950s and 1960s, Blacks were relegated to lower paying and less desirable jobs, and were excluded by many traditionally "white" industries and professions - particularly in the South. In many manufacturing industries, for example, Blacks held the jobs that were more physically strenuous, and often hotter or dirtier, while only Whites could compete for better paying supervisory positions. To make matters worse, unions at the time boasted many restrictions and employment hierarchies. Women were also relegated to low-paying jobs, thus earning about half that of men in 1960.

Much of the change that we have seen in employment with respect to racial and gender discrimination can be directly attributed to the Civil Rights Division's enforcement of Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, sex, religion and national origin. 31

Initially, few cases were brought following under Title VII. At that time, the Equal Employment Opportunity Commission (EEOC), created by the 1964 Civil Rights Act, had no enforcement authority. It could only investigate, conciliate, or refer cases to the Justice Department to litigate. A few years later, the Civil Rights Division put employment litigation on its priority list, filing six discrimination suits in the summer of 1967 and another 26 in 1968. At issue in the early employment cases was whether Title VII prohibited only purposeful discrimination or whether it also prohibited practices that appeared to be neutral but had a discriminatory effect.

The Justice Department first raised this issue in suits challenging union hiring practices. In one suit, an all-white asbestos workers union restricted membership to sons (or nephews raised as sons) of union members. Without union membership, individuals could not get hired in the insulation and asbestos trade. A second suit challenged a seniority system that perpetuated the effects of past discrimination. Both practices - restricted union membership and the seniority system - were ruled unlawful under Title VII by lower federal courts. 32 The Supreme Court addressed the issue of discriminatory hiring practices in 1971, after a divided Fourth Circuit ruled that Duke Power could require new hires for previously all-white jobs to have a high school degree and pass a written "ability" test. The Justice Department supported the plaintiffs in the case, noting that Duke Power's new hiring criteria were neither expected of previously hired White employees nor necessary to fill the job description. 33 The plaintiffs prevailed unanimously in the Supreme Court, which held that facially neutral "practices, procedures or tests that are discriminatory in effect cannot be used to preserve the ‘status quo' of employment discrimination." 34

In 1969, the Division sought back pay for the first time in an employment discrimination lawsuit. The Justice Department also determined that the affirmative action practice of requiring numerical goals and timetables for hiring could be required for federal contractors as part of Executive Order 11246, which prohibited discrimination based on race, national origin, or religion by employers with federal contracts. The Division included goals and timetables in the relief and in settlements it sought in Title VII litigation. Following suits against Bethlehem Steel and United States Steel, the Division brought a nationwide suit against the entire basic steel industry in 1974, covering more than 700,000 employees at that time. A nationwide suit against over 250 trucking companies was brought that same year, resulting in a consent decree with the employers. These suits combined "brought over two million employees under the coverage of consent decrees with goals, timetables, and back pay." 35 In the same vein, a case was brought against the Alabama Department of Public Safety in 1972, in which the district court found that there had never been a Black trooper in the 37 years of the state patrol. The court required a one-for-one hiring of Black and White troopers until the Department met a goal of 25 percent Black troopers. 36

In 1974, the federal government reorganized Title VII enforcement and the litigation authority against private employers was transferred to the EEOC. The Division's Employment Litigation Section was tasked with aggressively enforcing the provisions of Title VII against state and local government employers. From 1975 to 1982, the Civil Rights Division brought cases covering recruiting, hiring and promotional practices of local and state governments, predominately against police and fire departments, which opened up their ranks to minorities and women. 37 Similar cases were brought against states and counties to include minorities and women in jobs in correctional institutions.

In 1978, the Civil Rights Division also worked with the EEOC and other agencies to issue the Uniform Guidelines on Employee Selection Procedures. These guidelines provided employers, labor organizations, and the courts with uniform federal guidance on what employers could and should do to create and implement hiring practices and standards that are non-discriminatory. These guidelines applied to federal government hiring as well.

The policies and practices of the Employment Section of the Division shifted dramatically under the Reagan Administration. In 1983, the Department filed an amicus brief in a private suit against the New Orleans Police Department, arguing that no affirmative action remedies - including race conscious measures - are lawful to correct past discrimination under Title VII except those that assist individual and specific victims of discrimination. The Fifth Circuit rejected that position. 38 However, in 1984 the Division began systematically revising its consent decrees with over 50 public employers that had required affirmative action remedies, to eliminate numerical goals. As one commentator put it, "[t] he cumulative effect of the Justice Department's positions was that the lawyers for the executive branch, who had been in the forefront of advocating the civil rights of blacks, other minorities, and women since the days of President Truman, became the advocates for a restrictive interpretation of the civil rights laws." 39

One area in which the Division did continue equal employment enforcement during the 1980s was in residency requirements. In 1983, the Division brought suit against the city of Cicero, Illinois, for requiring applicants for employment to live in the city. Because the city was over 99 percent White, the city work force was all White. Twelve similar suits followed in other white suburbs of Chicago. The court ruled that the residency requirements violated the disparate impact standard of Griggs v. Duke Power, and settlements or summary judgments were entered in all 13 suits. Lawsuits against 18 suburbs of Detroit were also successful.

In the 1990s, the Civil Rights Division renewed its efforts to enforce Title VII against public employers through "pattern or practice" cases and individual cases referred by the EEOC. The Employment Section also took on a critical role in defending the federal government's affirmative action programs. In July 1995, President Clinton confirmed that the federal government would "mend, not end" affirmative action and ensure that federal programs were consistent with the Supreme Court's new, more rigorous, standard for evaluating whether such programs were constitutional. 40 The Justice Department subsequently undertook a meticulous review of all federal programs to ensure their fairness, flexibility, and constitutionality.

In recent years, prosecution of employment cases by the Division has been drastically reduced. A review of the Division's enforcement activity in recent years reveals a considerable decline in the number of Title VII lawsuits being undertaken, particularly as related to the issue of "disparate impact." The Division must consider these cases a higher priority, as they seek systemic reform of employment selection and promotion practices that adversely affect the employment opportunities of women and minorities. Strong evidence suggests that the problem of systemic employment discrimination persists, and because these cases are complex and difficult, the Justice Department is oftentimes the only entity that can successfully intervene.

28. Randolph, A. Philip. "Our Reason for Being." First editorial of The Messenger, March 1919.

29. U.S. Department of State's Office of International Information Programs. September 11: Victims and Heroes.

30. Yi, M. "Minorities Named to Key Posts at SFFD." Examiner. 26 July 2000, A1.

31. Also, Executive Order 11,246, issued by President in Johnson in September 1965, gave the Labor Department the responsibility of enforcing nondiscrimination for federal contractors and subcontractors.

32. Vogler v. Asbestos Workers 53, 294 F. Supp. 368 (E.D. La. 1967); United States v. Local 189 United Papermakers, 282 F. Supp. 39 (E.D. La. 1968).

33. See Griggs v. Duke Power, 401 U.S. 424 (1971).

34. Vogler, supra note 32, at 430. "The Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited. ... [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built in headwinds' for minority groups and are unrelated to measuring job capability." Ibid, 431.

35. Rose, D. "Twenty-Five Years Later: Where Do We Stand on Equal Employment Opportunity Law Enforcement." Vanderbilt Law Review, Vol. 42, May 1989: 1122, 1145.

36. NAACP and United States v. Allen, 340 F. Supp. 703 (M.D. Ala. 1972). Later, the District Court ordered a similar race-conscious requirement for promotions to higher ranks, and the Supreme Court upheld the relief in 1987 despite the United States' reversal of position and opposition to the remedy. See United States v. Paradise, 480 U.S. 149 (1987).

37. See United States v. City of Alexandria, 614 F.2d 1358 (5th Cir. 1980) (covering 45 municipal police and fire departments in Louisiana), and Vulcan Pioneers, Inc. v. New Jersey, 832 F.2d 811 (3rd Cir. 1987) (covering 12 fire departments in New Jersey). Cases were brought during this time against state police agencies in Florida, Maryland, Michigan, New Hampshire, New Jersey, North Carolina, Vermont and Virginia.

38. Williams v. New Orleans, 729 F. 2d 1554 (5th Cir. 1984).

39. Rose, supra note 35, at 1155, 1157.

40. See Adarand Constructors v. Pena, 515 U.S. 200 (1995).

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